CIVIL REFERANCE No.1 OF 1998 ----- In the matter of reference under section 113 of the Code of Civil Procedure ----- Sachida Nand Prasad Gupta & Ors. ----------Petitioner Versus THE STATE OF BIHAR & ORS ----------Respondents ----- For The Petitioners : None For The Respondent : None. ----- P R E S E N T THE HON'BLE MR. JUSTICE SHIVA KIRTI SINGH THE HON'BLE MR. JUSTICE JAYANANDAN SINGH Shiva Kirti Singh & Jayanandan Singh,J: Matter was called out yesterday for hearing but no body appeared to argue on behalf of the petitioners. Matter was passed over yesterday to avoid unnecessary dismissal for non-appearance. Today also, no body has appeared. From the record it appears that the original petitioner had died during the pendency of this reference and therefore, a vakalatnama was filed on 14.3.2005 by his legal heirs and the names of learned counsels of the legal heirs appear in the cause list. Original petitioner Sachida Nand Prasad Gupta was a party to L.A.R.Case No.82 of 1984 before the Subordinate Judge, Saran, Chapra. That case was under section 18 of the Land Acquisition Act, 1894 for determination of price of the land acquired by the State Government for construction of central godown of Bihar State Electricity Board at Chapra. From the facts of the case stated by - 2 - learned Subordinate Judge II, Chapra, it transpires that during arguments of the case which was pending before him since 1984, a petition under section 113 of the Code of Civil Procedure, hereinafter referred to as “CPC”, was filed on 3.10.1996 raising a challenge to the notification made under section 4 of the Land Acquisition Act on the ground that acquisition was not for public purpose and also to further proceeding at later stages. Learned Subordinate Judge was persuaded to make a reference to this Court on the ground that he had no jurisdiction to decide that petition. In the reference, learned Subordinate Judge has also noticed that the applicant Sachida Nand Prasad Gupta had sought to challenge the notification of the Government regarding acquisition of land. Learned Subordinate Judge came to a finding that since he had no jurisdiction to consider and decide the validity of the notification issued by the Government for acquisition of the land, therefore, the petition of the applicant had to be allowed and the matter had to be referred to this Court under section 113 of the CPC. This Court finds itself in a peculiar situation. A reference under section 18 of the Land Acquisition Act, 1894 is pending before the Subordinate Judge II, Saran, Chapra since 1984. The land owner has apparently not challenged the notification of the State Government issued under section 4 of the Land Acquisition Act or issued at - 3 - later stages. Clearly, no challenge was made through writ petition or through civil suit for more than a decade or two and then such challenge was raised before the civil court which has limited role to play under section 18 of the Land Acquisition Act. Learned Subordinate Judge rightly came to the conclusion that in a reference under section 18 of the Land Acquisition Act for determining the price of the acquired land, he had no jurisdiction to decide the bigger issues raised by the applicant through the petition under section 113 of the CPC. However, learned Subordinate Judge was clearly in error that since he had no jurisdiction, a reference was required to be made to this Court under section 113 of the CPC. Since a new bigger issue sought to be raised by the land owner was not covered by the jurisdiction of the learned Subordinate Judge in a reference case under section 18 of the Land Acquisition Act, 1894, he was competent to dismiss the application on the ground that the issue raised before him was beyond his competence in the pending proceeding. Instead of doing that, he has made reference to this Court without specifying as to on what issue he is seeking opinion of this Court. In the facts and circumstances of the case, we are constrained to hold that the reference itself is invalid. For challenging a notification under section 4 of the Land Acquisition Act and - 4 - other subsequent notifications, the aggrieved party had to file a substantive suit or a writ petition within a reasonable time. The issue raised before the learned Subordinate Judge II in course of a proceeding under section 18 of the Land Acquisition Act is clearly beyond the scope of the proceeding and in the opinion of this Court, instead of making a reference, learned Subordinate Judge should have himself passed appropriate orders on such an application of the applicant. The request for reference is answered accordingly. In order to defeat any attempt of delaying this matter any further by the land owner, it is made clear that in spite of absence of applicant, we have applied ourselves thoroughly to relevant aspects of the controversy and the reference has been answered on merits. The court below shall proceed with the pending matter expeditiously and dispose of the same in accordance with law within a period of six months. (Shiva Kirti Singh,J.) (Jayanandan Singh,J.) Patna High Court The 23rd January,2009 A.F.R./Pradeep