RAJMANI Vs. COLLECTOR RAIPUR

JUDGEMENT

(1.) This appeal by special leave arises from the order passed by the learned Single Judge of the Madhya Pradesh High court on 29/6/1979 in CR No. 439 of 1977. The admitted facts are that the lands of the appellant came to be acquired for a public purpose. The Land Acquisition Officer made his award dated 15/11/1973 awarding compensation @ Rs. 1,000. 00 per acre. Dissatisfied therewith, the respondent made an application on 29/4/1974 for reference under Section 18. In furtherance thereof, a reference came to be filed in the court of the Additional District Judge, Raipur. The District Judge found the statement as required under Section 19 of the Land Acquisition Act, 1894 (for short "the Act"). On 1/7/1975, he directed issuance of notice to the appellant. It came to be adjourned from time to time for service on the appellant. Ultimately, on 2/2/1976 in the proceedings of the court the notice was stated to have been served on the appellant but no date thereon was put nor was it signed by the witnesses. Accordingly, by proceedings dated 10/2/19766 the reference court passed order, after setting him ex parte dismissing the reference for default and nil award. As against the order the appellant filed an application under Order 9 Rule 13 Civil Procedure Code. The Civil Judge allowed the application and set aside the order against which the State went in revision. The learned Single Judge in the impugned order has held that the application for restoration does not lie. The only remedy open to the appellant was to file an appeal under Section 54 of the Act to the High court. Thus this appeal by special leave.

(2.) The question is whether the view taken by the High court is correct in law It is contended by Shri Sahu, learned counsel for the appellant, that the appellant had not been served with the notice. As a consequence, when he came to know of the award made by the reference court confirming the award of the Land Acquisition Officer within three days, he filed an application under Order 9 Rule 13 Civil Procedure Code to set aside the ex parte order and restoration of the case so as to get an opportunity of being heard. The Additional District Judge rightly set aside the order. The view of the High court was not correct in law. Shri Agnihotri, learned counsel appearing for the State, contended that the order of the reference court is not correct in law. It was not an award of the court. In other words, every award is not a decree and, therefore, the provisions of the Civil Procedure Code do not apply to the given setof facts. The appellant is not a defendant. Therefore, Order 9 Rule 13 does not apply since reference court is not a civil court. Section 151 also does not apply- Therefore, the view taken by the High court is correct in law. In support thereof, he places strong reliance on the judgments of this court in Deep Chand v. Land Acquisition Officer and State of Mizoram v. Biakchhawna.

(3.) With a view to appreciate the respective contentions, it is necessary to read the relevant provisions of the Act. Section 53 of the Act envisages that "save insofar as they may be inconsistent with anything contained in this Act, the provisions of the Code of Civil Procedure, 1908, shall apply to all proceedings before the court under this Act". It would thus be clear that so long as there is no inconsistency between the provisions of the Act and the Civil Procedure Code, all the provisions contained in Civil Procedure Code shall apply to the proceedings under the Act. 'court' has been defined in Section 3 (d) of the Act to mean "a principal civil court of original jurisdiction, unless the appropriate government has appointed (as it is hereby empowered to do) a special judicial officer within any specified local limits to perform the functions of the court under this Act". When reference was made under Section 18, it should be to the principal civil court of original jurisdiction or special judicial officer within any specified local limits to perform the functions of the court. Section 19 envisages that upon an application made under Section 18 in the manner prescribed thereunder, the Collector should make reference to the court with all the information in writing, as indicated in Ss. (1 of Section 19. The said statement shall be attached with a schedule giving the particulars of the notices served upon and of the statements in writing made or delivered by the parties interested therein respectively. On receipt thereof. Section 20 enjoins the court the service of the notice with a mandatory language. The court shall thereupon, cause notice served upon the persons named in the reference including the Land Acquisition Officer/collector, as indicated in clauses (a) to (c) of Section 20 giving and specifying the day on which the court will proceed to determine the objection and direct the parties to appear before the court on that day. In other words, it is the mandatory duty of the court to have the notices served on the persons, viz. , the applicant or all persons interested in the objection filed before the Land Acquisition Collector, except if any of them gives consent when produced to receive payment of the compensation awarded and in case of objection relating to the area or the amount of land acquired or the amount of the compensation upon the Collector/land Acquisition Officer. Upon the receipt and after service of the notice, Section 22 envisages that every proceedings shall take place in the open court and all persons entitled to practise in any civil court in a State shall be entitled to appear, plead and act in such proceedings. It would thus be clear that upon an application made under Section 18 of the Act the Land Acquisition Officer/collector, when he receives the application within the limitationprescribed under the Act, is enjoined to make a reference, as above mentioned in Section 19. Upon receipt of those applications, the court should cause the notices/notice served on the applicants, as well as all interested persons and Land Acquisition Officer/collector. The notice required to be served as is envisaged in Order 5 of the Civil Procedure Code and the manner of service has been indicated thereunder. Therefore, it should be the duty of the court to have the notice served. It is seen that the notice was not properly served on the applicant. It would appear that notice was served on the father of the appellant, Brij Mohan Lal who is now found to have died on 20/12/1973, i. e. , much before the date of the alleged service. It would, therefore, be clear that the service of notice has not been duly effected on the appellant. As a consequence, he did not have any occasion to appear before the court.