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2017 DIGILAW 2002 (JHR)

Dhaneshwar Kumhar v. Mahavir Kumhar

2017-11-22

RAJESH SHANKAR

body2017
ORDER : 1. The present writ petition has been filed for quashing the entire proceeding of Land Reference Case No. 1 of 2011, pending in the Court of the learned Civil Judge, Sr. Division-cum-L.A. Judge, Hazaribagh including the order dated 12.9.2012 passed in the said case whereby, the learned Court below allowed the substitution petition and proceeded with the reference case. 2. The factual background of the case is that the land of Village-Sirka was acquired by the State Government for Central Coalfields Limited (in short CCL) and a notification under Section 4 of the land Acquisition Act bearing No. DLA, Hazaribagh 34/88-103 dated 4.1.1989 was published in the Gazette on 1.2.1989 followed by the corrigendum published on 16.1.1990. The Collector assessed the compensation and deposited the same with the Office of the District land Acquisition Officer, Hazaribagh for payment to the land losers. An award for Khata No. 28 Plot Nos. 171, 152, 134, 147, 144, 149, 140, total area 1.53½ acres was prepared in the name of Sukra Kumhar, Datman Kumhar, Jamuna Kumhar and Arjun, all sons of Munga Lal Kumhar for an amount of Rs. 1,13,247.80/- and the money was also paid to the awardees. The awardees did not get satisfied with the payment of compensation and filed objection before the Collector claiming compensation @ Rs. 10,000/- per decimal besides solatium and other statutory benefits. The Collector referred the objection under Section 18 of the land Acquisition Act, 1894 (hereinafter referred to as "the said Act") to the Court below for re-fixation of the compensation amount, which was numbered as L.R. No. 52 of 1993 and finally vide a common judgment dated 21.4.2005, an award was prepared. Against the order dated 21.4.2005, the CCL preferred a writ petition before this Court being W.P. (C) No. 3418 of 2006 and vide order dated 24.6.2010, the matter was remanded to the Court below with certain observation. Thereafter, the date of re-hearing was re-fixed. In the meantime, a requisition was received from the Office of the land Acquisition Officer, Ramgarh vide letter No. 46 dated 27.1.2011, which was registered as L.R. Case No. 1 of 2011 in the Court of the learned Sub-Judge-II-cum-Special Land Acquisition Judge, Hazaribagh and the petitioners were issued show cause on 1.12.2011. Thereafter, the date of re-hearing was re-fixed. In the meantime, a requisition was received from the Office of the land Acquisition Officer, Ramgarh vide letter No. 46 dated 27.1.2011, which was registered as L.R. Case No. 1 of 2011 in the Court of the learned Sub-Judge-II-cum-Special Land Acquisition Judge, Hazaribagh and the petitioners were issued show cause on 1.12.2011. The petitioners filed reply to the show cause and challenged the said land reference on the ground of being barred by limitation having been initiated after lapse of 18 years and also on the ground that the reference order has been passed against the dead persons. 3. The learned counsel appearing on behalf of the petitioners submits that after the death of the recorded tenants, there was oral partition of the entire property between the descendants of the recorded tenants by metes and bounds and they were living separately in mess and cultivation and the land in question was in share and possession of the descendants of Mangra Kumhar. It is further submitted that the Land Acquisition Officer, Ramgarh made local inspection of the land in dispute and found that Sukra Kumhar, Tumna Kumhar, Jamuna Kumhar and Arjun Kumhar S/o Mangra Kumhar had been in peaceful cultivating possession over the land in question without let or hindrance from any persons. It is further submitted that the present case cannot continue because the same has been filed against the dead persons. 4. None appears on behalf of the respondent Nos. 1 to 4 to contest the present writ petition. 5. However, on perusal of the counter affidavit filed on behalf of the respondent Nos. 1 to 4, it appears that their stand is that there was no oral partition of the property under Khata No. 28, as claimed by the petitioners. So far as non-raising of objection under Section 9 of the said Act is concerned, it has been stated that no notice was ever served upon them and as such the objection could not be filed. It has also been stated that when they came to know about the fact that their names have not been included in the award, they filed an application for inclusion of their names in the award and as such the reference was made under Section 30 of the said Act. It has also been stated that when they came to know about the fact that their names have not been included in the award, they filed an application for inclusion of their names in the award and as such the reference was made under Section 30 of the said Act. It is further submitted that the said land is a joint property recorded in the name of late Sukhair Kumhar in which the respondents herein are also the co-sharers, therefore, they are also entitled to get the compensation of the land acquired for the use of the CCL. 6. Heard the learned counsel for the parties and perused the materials placed on record. It is evident that the land in question is recorded in the name of one Sukhair Kumhar and the petitioners as well as the private respondents are claiming to be the legal representatives of Sukhair Kumhar. At the time of acquisition of the land by the State for the use of the CCL, an award was prepared in the name of Sukra Kumhar, Datman Kumhar, Jamuna Kumhar and Arjun in which their father's name was mentioned as Munga Lal Kumhar. The awardees received compensation amount of Rs. 1,13,247.80 and also filed objection for enhancement of compensation. After passing of the award, the CCL filed the writ petition being W.P. (C) No. 3418 of 2006 before this Court and the matter was remanded to the Court below with certain observation and now the matter is pending before the Court below. The private respondents (respondent Nos. 1 to 4) filed an objection to the award before the land Acquisition Officer, Ramgarh claiming that they are also the legal heirs of the recorded tenant and as such their names should also be added in the Award No. 19. The land Acquisition Officer, Ramgarh referred the matter to the Court below under Section 30 of the said Act in connection with L.R. No. 1 of 2011. Thereafter, the petitioners were directed to file show cause which was also filed. However, vide order dated 12.9.2012, the application of the private respondents was allowed and a direction was issued to make necessary correction in the award. So far as the mistake in the award is concerned, the Court below also recorded that, admittedly, in place of the father's name of the awardees Munga Lal Kumhar has been written instead of Mangra Kumhar. So far as the mistake in the award is concerned, the Court below also recorded that, admittedly, in place of the father's name of the awardees Munga Lal Kumhar has been written instead of Mangra Kumhar. The private respondents claim that they are the descendants of Munga Lal Kumhar and this fact has not been denied by the petitioners. The private respondents have further contended that while passing the award, no notice was given to them and as such no objection to the award could be filed earlier. The said claim of the private respondents is found to be genuine. At the time of passing of the award, it was the duty of the Deputy Commissioner to issue notices to all the persons, who were legally entitled to succeed the property of the recorded tenant. 7. The petitioners have also contended that the property in question was amicably partitioned and the land in question came to the share of the awardees and accordingly, the Deputy Commissioner, after due verification of the fact, passed the award in their favour. However, the petitioners have not brought on record any document in support of the said contention. On the other hand, the respondent Nos. 1 to 4 have denied the said contention of the petitioners by filing counter affidavit. Thus, it is a disputed question of fact, which cannot be adjudicated in the extraordinary writ jurisdiction of this Court. Moreover, before passing the impugned order, the Court below issued notice to the petitioners and passed the order after hearing them. Though in the cause title of L.R. Case No. 1/2011, the names of the opposite parties are Sukra Kumhar and others, who have already died and the legal heirs of the awardees were required to be substituted in the cause title, which is a procedural irregularity. However, before passing the order, the notices were duly received by the petitioners and they also filed reply to the show cause and, therefore, no prejudice was caused to them due to such procedural irregularity. The primary function of the Court of law is to dispense justice based on substantive rights of the parties and the matters of procedure should not unnecessarily boggle the judicial mind when the equity requires that the defect or irregularity in procedure is one which can be cured without causing any injustice to the other party. The primary function of the Court of law is to dispense justice based on substantive rights of the parties and the matters of procedure should not unnecessarily boggle the judicial mind when the equity requires that the defect or irregularity in procedure is one which can be cured without causing any injustice to the other party. Ordinarily, the rules of procedure are not treated as obligatory or mandatory unless the non-compliance of the same results in depriving the other party of his/her substantive right. If the defect or irregularity in the procedure is one which can be said to be purely technical or formal, the endeavour of the Court should be to permit rectification of such defect so as not to deny substantial justice to the party. 8. In view of the discussions made hereinabove, I find no reason to interfere with the entire proceeding of Land Reference Case No. 1 of 2011, pending in the Court of the learned Civil Judge, Sr. Division-cum-L.A. Judge, Hazaribagh including the order dated 12.9.2012 passed by the learned Court below in the said case. 9. The present writ petition being devoid of merit is accordingly dismissed. 10. Consequently, I.A. No. 4712/2017 also stands dismissed.