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Himachal Pradesh High Court · body

2016 DIGILAW 1493 (HP)

Shanta Karol v. Land Acquisition Collector, NTPC

2016-07-27

DHARAM CHAND CHAUDHARY

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JUDGMENT : Dharam Chand Chaudhary, J. This appeal is directed against the award dated 8.6.2011 passed by learned Additional District Judge, Mandi (Camp at Karsog) in reference petition No. 16 of 2010 whereby learned trial Court has dismissed the reference petition for want of evidence. 2. The appellant (hereinafter referred to as the petitioner) belongs to village Tatapani, Tehsil Karsog District Mandi. Her land was situated in Mohal Tatapani. The same has been acquired by respondent-State for construction of Kol Dam in District Bilaspur. The notification to acquire the land belonging to the petitioner under Section 4 of the Land Acquisition Act was issued on 11.12.2000. Due publicity was given to the acquisition of the land in print media and the notification has even published in Gazette of Himachal Pradesh. On the completion of all codel formalities, the Land Acquisition Collector NTPC (Kol Dam) Bilaspur, the first respondent has assessed the market value of the acquired land and made award No. 79 of 2008 on 8.3.2008. The petitioner on being dis-satisfied with the award preferred reference under Section 18 of the Act for enhancement of the compensation qua her land acquired for construction of Kol Dam. The reference was sent through post to first respondent which was received on 16.4.2008. The same was forwarded to the Court of learned District Judge, Mandi. Learned District Judge has, however, assigned the same to learned Additional District Judge, Mandi. 3. Notices to the parties in terms of Section 20 of the Act came to be issued for 10.3.2010 by learned trial Court vide order dated 4.1.2010. The notice issued qua the service of the petitioner is available on record in original. The endorsement made by the Process Server and certified by the Superintendent Grade-II of the Court of Civil Judge (Senior Division), Shimla, the service of notice could not be effected upon her because on the given address i.e. Tatapani, Tehsil Karsog, District Mandi she was not available and after inquiry when the Process Server visited the office of Accountant General, Himachal Pradesh where she was working, the Assistant Accounts Officer has made endorsement ‘she stands retired from service on 31.5.2009’. 4. The notice as such was returned to learned trial Court unexecuted. On the returnable date i.e. 10.3.2010 Mr. O.P. Verma Advocate has put in appearance as vice Counsel for the petitioner and sought time for filing reply. 4. The notice as such was returned to learned trial Court unexecuted. On the returnable date i.e. 10.3.2010 Mr. O.P. Verma Advocate has put in appearance as vice Counsel for the petitioner and sought time for filing reply. On the dates subsequent to 10.3.2010 i.e. 6.5.2010, 5.10.2010 and 10.12.2010 Shri O.P. Verma Advocate has put in appearance on her behalf. On 10.12.2010 on the prayer made for filing rejoinder, though 15 days time was granted for the purpose, however, simultaneously issues were also framed and the petition adjourned to 10.5.2011 for recording petitioner’s evidence. On that day, none was present on behalf of the petitioner and as such while recording in the zimni order that no evidence has been produced on behalf of the petitioner, matter was heard exparte and adjourned to 8.6.2011 for orders. It is on that day the impugned award came to be passed behind the back of the petitioner. The operative part of the impugned award reads as follow:- “REASONS FOR FINDINGS ISSUE NO. 1 No evidence was led by the petitioner to prove that inadequate compensation was paid to her. Hence, this issue is answered in negative and is decided against the petitioner for want of evidence. ISSUE NO. 2 It is no shown as to how present petition is not maintainable. Present petition has been filed under section 18 of Land Acquisition Act, which is fully maintainable. Hence, this issue is answered in negative. RELIEF In view of the above, it is held that land Acquisition Collector had properly assessed the market value and no enhancement is required. Hence, the present petition is dismissed. The file after completion be considered to Record Room.” 5. The legality and validity of the impugned award has been questioned on several grounds, however, mainly that the same having been passed behind the back of the petitioner is not legally sustainable. As a matter of fact, the point in issue in this appeal is squarely covered by the judgment of this Court in Kundan Lal versus Land Acquisition Collectors and another and its connected matters, Latest HLJ 2015(HP) 892. That was also a case pertaining to the land acquired for the same public purpose namely construction of Kol Dam Hydro Electric Project and in the similar circumstances learned trial Court has dismissed the reference petition without serving the petitioner with notice in terms of Section 20 of the Act. That was also a case pertaining to the land acquired for the same public purpose namely construction of Kol Dam Hydro Electric Project and in the similar circumstances learned trial Court has dismissed the reference petition without serving the petitioner with notice in terms of Section 20 of the Act. This Court having taken note of the given facts and circumstances has held as under: “…….Therefore, without procuring the presence on behalf of the petitioners, the trial Court should have not proceeded further in the reference petitions. Therefore, proceedings conducted in the reference petitions are vitiated on account of the absence of the appellants-petitioners. Consequently, the awards under challenge in these appeals are not legally sustainable. The same rather deserve to be quashed and set aside and the reference petitions remanded to learned trial Court for fresh disposal in accordance with law.” 6. In the case in hand also the petitioner was never served with notice issued by learned trial Court on 4.1.2010 for 10.3.2010. True it is, that Mr. O.P. Verma, Advocate had put in appearance on her behalf on the returnable date, however, the fact remains that said Shri O.P. Verma was never instructed by the petitioner or Shri Nand Lal Chauhan, Advocate who had filed reference petition on her behalf in the trial Court. The appearance by said Shri O.P. Verma, Advocate on behalf of the petitioner was, therefore, unauthorized. As a matter of fact, the reference petition has been drafted by Mr. Nand Lal Chauhan, Advocate on behalf of the petitioner. Even it is he who was engaged as Counsel by her because his power of attorney is available on trial Court record. On 10.5.2011 there was no appearance on behalf of the petitioner. Since Shri O.P. Verma Advocate was never engaged by the petitioner to represent her in the reference petition and as in view of the notice in original available on record, she was never served in terms of Section 20 of the Act, therefore, the bare minimum requirement was that the trial Court should have issued the notice to the petitioner afresh and proceeded further in the matter after procuring her presence or she in the event of found to have failed to put in appearance despite service, would have proceeded against exparte. Such a course, however, was not adopted and to the contrary while recording that no evidence has been produced on behalf of the petitioner, the arguments were heard and the matter was adjourned for pronouncement of order. Such an approach has definitely resulted in miscarriage of justice to the petitioner. The impugned award being devoid of principle of natural justice is neither legally nor factually sustainable. It is significant to note that similar references arising out of the same acquisition proceedings have been decided by learned trial Judge on merits. The submissions to this effect made by learned counsel representing the petitioner have not been disputed on behalf of the respondent-beneficiary. Therefore, on this score also, the petitioner has been discriminated against similar situated persons and also in the matter of enhancement of the compensation. 7. True it is, that this appeal has been filed after a period over four years, hence was time barred. However, the delay as occurred stands condoned vide separate judgment of the day passed in CMP(M) No. 1253 of 2015. The anxiety of Mr. Neeraj Gupta, learned Counsel for respondents No. 3- establishment-beneficiary in the event of the reference petition is allowed the said respondent will have to bear unnecessary financial burden on account of the payment of enhanced compensation along with interest has been considered and appropriately taken care of while deciding the application under Section 5 of the Limitation Act by reserving liberty in favour of respondent No. 3 to agitate this aspect of the matter in accordance with law during the course of proceedings in the reference petition 8. In view of what has been said hereinabove, the impugned award is quashed and set aside and the reference petition is remanded to learned trial Court for fresh disposal in accordance with law. The parties through learned Counsel representing them are directed to appear in the Court of learned Additional District Judge-I, Mandi on 31.8.2016. The record be sent back forthwith so as to reach well before the date fixed in the trial Court.