RAJ MANI A v.

THE COLLECTOR, RAIPUR

JULY 25, 1996

[K. RAMASWAMY AND G.B. PATTANAIK, J.1.] B

Land Acquisitio11 Ac~ 1894:

Ss. 18, 20 a11d 26(2)-Referenc~Ex parte order passed by reference Court dismissing the refcre11ce for default of claimant-Application by C claimant under Order 9 Rule 13 CPC for setting aside ex parte order on the ground that he was not se/ved with the notic~Held, se1vice of notice was not duly effected on the claimant-It should be the duty of the court to have the notice se1ved-An applicatio11 under Order 9 Rule 9 read withs. 151 CPC is the proper remedy a11d procedure-Claimant lightly filed the application, though u11der Order 9 Rule 13, but it could be treated as one under Order 9 D Rule 9 read with s.151 CPC-Additio11al Distlict Judge 1ightly enteitained the application a11d set aside the ex pmte order.

Code of Civil Procedi1re, 1908 :

Order 9, Rule 9 R/W s.151-Refere11ce u11der s. 18 of Land Acquisition Act, 1894 dismissed for default of c/aimantlaima11t alleging non service of

noticemedyHeld, an application under Order 9 Rule 9 read withs. 151 is the proper remedy and procedure.

Practice and Procedure :

Refere11ce under s. 18 of Land Acquisition Ac~ 1894 dismissed for default of claimantlaimant alleging non-service of notic~Remedy-Held an application under Order 9 Rule 9 read with s. 151 CPC is thr proper

re111edy and procedure.

Deep Chand and Ors. v. La11d Acquisition Officer & Ors., (1994] 4 SCC 99; State of Mizoram v, Biakclthawna, [1995] 1 SCC 156 and State of Maharashtra v. M.S. Hatkw; (1995] 3 SCC 316, held inapplicable.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1885 of

1981.

I-I 59

A From the Judgment and Order dated 29.6.79 of the Madhya Pradesh

High Court in C.R. No. 1055 of 1978.

C.L. Sahu for the Appellant.

Sakesh Kumar, S.K. Agnihotri for the Respondent.

The following order of the Court was delivered.

This appeal. by special leave arises from the order passed by the learned single Judge of the Madhya Pradesh High Court on June 29, 1979 in C.R. 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 November 15, 1973 awarding compensation @ Rs. 1,000 per acre. Dissatisfied therewith, the respondent made an application on April 29, 1974 for reference under Section 18. In furtherance thereof, a reference came to be filed in the Court of the Addi- D tional 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 July 1, 1975, he directed issuance of notice to the appellant. ll came lo be adjourned from lime to time for service on the appellant.

Ultimately, on February 2, 1976 in the proceed; ngs of the Court the notice

was stated lo have been served on the appellant but no date thereon was put nor was it signed by the witnesses. Accordingly, by proceedings dated February 10, 1976 the reference Court passed order, after setting him ex-parle dismissing the reference for default and nil award. As against the order the appellant filed an application under Order 9, Rule 13, CPC. 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.

The question is : whether the view taken by the High Court is correct G in law ? It is contended by Shri Sahu, learned counsel for the appellanll,

that the appellant had not been served with the notice. As as 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, CPC to set aside the ex-parte order H and restoration of the case so as lo get an opportunity of being heard. The

RAIMANI v_ COLLECTOR 61

Additional District Judge rightly set aside the order. The view of the High A 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 CPC do not apply to the given set of 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 & Ors. v. Land Acquisition Officer &

010-., [1994] 4 SCC 99 and State of Mizoram v. Biakchltawna, [1995] 1 SCC 156.

With a vie\v to appreciate the respective contentions, it is necessary

to read relevant provisions of the Act. Section 53 of the Act envisages that "(s)ave in so far as they may be inconsistent \vith anything contained in this Act, the provisions of the C.P.C. shall apply to all proceedings before the D 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 C.P.C., all the provisions contained in C.P.C. shall apply to the proceedings under the Act. "Court" has been defined in Section 2(d) of the Act to mean "a principal Civil Court of original jurisdiction unless the appropriate Goverment has appointed a special judicial officer within any specified local limits to perform the functions of the Court under this Act''. When reference was made under Scction 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 sub-section (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. G 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 H

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 limitation prescribed 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 CPC 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 December

20, 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.

The question then is : whether the application would be under Order 9, Rule 9 or Order 9, Rule 13 or Section 151(2) ? It is settled law that the statement under Section 19 in terms of the objection under Section 18 of the Act is not treated as a plaint. Upon service of the notice on the claimant or interested persons, he is treated to be a plai,1tiff and Land Acquisition Collector to be a defendant for the purpose of conducting the proceedings as envisaged under Section 22 of the Act. They are entitled to be represented by counsel. On receipt of the application, it is the duty of the claimant and burden is always upon him, who seeks higher compensation to adduce evidence and prove in the Court that the compensation awarded by the Collector was inadequate and that the acquired lands possessed of higher value for award of the compensation to be just and adequate H compensation. The Land Acquisition Officer is to rebut the evidence

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IWMANI v. COLLECTOR 63

adduced by the claimant/interested person. The burden is always on the A claimant. Ultimately, it is the duty and power of the Court to determine just and adequate compensation on relevant facts and law sitting in the arm chair of a prudent purchaser in an open market. If the notice is not served on the claimant, he is deprived of his valuable opportunity. If the award in such circumstances came to be passed after setting aside the claimant ex-parte, though an appeal would lie under Section 54 of the Act against such an award, alternative remedy is also available. The appellate Court may not be in a position to decide the correctness of the award except again to fall back upon the question whether notice was properly served on the claimant and whether his remaining ex-parte is correct in law. That question could equally be gone into on an application filed by the claimant either under Order 9, Rule 9 CPC or under Order 9, Rule 13 or Section 151, CPC. We are of the view that the appropriate provisions that would be applicable to the claimant would be Order 9, Rule 9 read with Section

151, CPC. Therefore, he has rightly filed an application though under Order 9, Rule 13 but it could be treated as one under Order 9, Rule 9 read D with Section 151, CPC. Section 26(2) of the Act declares that the award is a decree obviously as defined in Section 2(3) CPC and the grounds in support thereof is a judgment under Section 2(9) CPC. The appeal under Section 54 would be dealt with under Order 41 CPC.

The ratio of Deep Chand's case has no application to the facts of this Case. In that case the question was : whether an order passed by the Collector under Section 49(1) of the Act is an award and whether it is appealable ? It was held to be neither a decree nor an award as no adjudication was involved in the order passed under Section 49(1) and, therefore, no appeal would lie under Section 96 of the C.P.C. or Section 54 of the Act. Equally, the ratio of Biakchhawna's case (supra) has no application to the facts of this case. Therein, without seeking reference under Section 18 and the procedure ta be fallowed under Sections 18 ta 20 and 31, civil suit came to he filed for determination of the compensation

for the acquired land. It was held that civil suit was not maintainable in view of the inconsistency found in the Act, viz., determination of the G compensation on reference and an appeal thereunder to the civil court under Section 54. Thus, the above two decisions are of little assistance to the State. The ratio of State of Maharashtra v. M.S. Hatkar, [1995] 3 SCC 316 also has no application to the facts in this case. Therein, after the decree and award passed under Section 26 became final an application H

' A under Sections 152 and 151 CPC came to be filed, after the coming into force of the Amendment Act 68 of 1984, to amend the decree and to grant additional amounts, as enjoined under Sections 23(2), 28 and 23(1-A) of the Act. Therein, it was held that after the decree becomes final, unless the decree is duly amended in accordance with law, the civil court has no

jurisdiction lo amend the decree and pass additional amount under the Amendment Act.

Accordingly, we hold that an application under Order 9, Rule 9 read with Section 151, CPC io the proper remedy and procedure. The Additional District Judge has rightly entertained, the application setting aside the ex-pwte order.

The appeal is accordingly allowed. The order of the High Court stands set aside and that of the civil court stands restored. No costs.

R.P.

Appeal allowed.