The provisions above subsumed would thus make it clear that the Civil Court has to pass an award in answer to the reference made by the Collector under Section 18 of the Act. If any party to whom notice has been served by the Civil Court and did not participate in the inquiry it would only be at his risk because an award would be passed perhaps to the detriment of the party concerned. But non participation of any party would not confer jurisdiction on the Civil Court to dismiss the reference for default"
The Apex Court considering the aforesaid provision held that reference application cannot be dismissed because of the default.
Madhya Pradesh High Court
Prahlad vs The Land Acquisition And ... on 26 February, 2013
Shri Shashank Upadhyay, learned counsel for the petitioners in all the petitions.
Shri Sanjeev Kumar Singh, learned counsel for the respondents-State on advance notice.
Shri Arpan J. Pawar, learned counsel for respondent No.4 in W.P. No.174/2013.
As the question involved in all these four cases are similar, they are being heard together and are being decided by this common order.
Challenging the order Annexure P/4 dated 25.3.2010 passed by the learned Additional District Judge, Khandwa, dismissing the reference made to it by the competent authority under Section 18 of the Land Acquisition Act, these writ petitions have been filed.
It is stated by Shri Shashank Upadhyay, learned counsel for the petitioners that the reference has been rejected only on the ground that witnesses of the petitioner was not present. It is submitted by him that without adverting to consider the question on merits, dismissal of the appeal on the ground of default committed by the petitioners in the matter of producing witnesses was not proper. He invites my attention to an order passed by the Division Bench of this Court on 27.8.2010 in W.P. No.11372/2010, W.P.11373/2010 and W.P. No.11374/2010 and submits that mere dismissal of 2
the reference in default committed by the petitioners is not proper and seeks for remand of the matter for decision on merit and passing of a proper award after complying with the requirement of Section 26 of the Land Acquisition Act as held by the Division Bench.
In W.P. No.180/2013 by the impugned order dated 3.9.2010 also the reference is dismissed due to non appearance of the witnesses of the petitioner and similar contentions as is made in W.P. No.175/2013 is made by Shri Shashank Upadhyay.
In W.P. No.174/2013 and W.P. No.231/2013 also same contentions is advanced by Shri Shashank Upadhyay. Shri Arpan Pawar and Shri Sanjeev Kumar Singh, learned counsel appearing for the respondents refuted the aforesaid and pointed out that in W.P. No.174/2013 the order impugned is not an order dismissing the reference only on default. On the contrary, it is submitted by Shri Pawar that the award passed by the Land Acquisition Officer is upheld and as the award is upheld by the impugned order, it is not an order of dismissal simplicitor due to default, therefore, petitioner has to take recourse to the remedy of filing an appeal under Section 54 of the Land Acquisition Act and this writ petition is not maintainable. It is submitted by Shri Pawar that in the order passed by the Division Bench in the cases relied upon by Shri Shashank Upadhyay this aspect of the matter has not been considered. Accordingly, Shri Arpan 3
Pawar submits that in W.P. No.174/2013 as the award is upheld on merit and it is not a case where the reference is rejected on default of witnesses not being produced, the judgment rendered by the Division Bench may not apply. Similar objection is raised by Shri Sanjeev Kumar Singh in W.P. NO.175/2013 and W.P. 231/2013 wherein the award is upheld by holding that it is proper.
Shri Shashank Upadhya, learned counsel for the petitioners refuted the contentions advanced in this regard by Shri Arpan Pawar and Shri Sanjeev Kumar Singh, particularly with regard to the award passed in W.P. NO.175/2013, WP No.174/2013 and W.P. No.231/2013 and argued that under Section 26 of the Land Acquisition Act, the forms in which the award has to be passed is indicated and when the provision of Code of Civil Procedure in the matter of passing a judgment and decree has been made applicable and when the order in question dismissing the reference does not meet the requirement of Section 23(1) read with the provision of Section 2 of the CPC and as the order is not passed by recording reasons and evaluation of rival contentions, it is not a proper judgment or decree as required under the law and therefore, order passed by the Division Bench will be made applicable.
I have heard learned counsel for the parties at length and perused the record. In the order passed by the Division Bench on 27.8.2010 in the cases as relied upon by Shri 4
Shashank Upadhyay, the following directions have been issued :-
"The Court below observed that inspite of various opportunities, the process fee was not paid and the petitioner had not taken any steps for service on the respondents.
"26. Form of Award:-(1) Every award under this part shall be in writing signed by the Judge, and shall specify the amount awarded under clause first of sub section (1) of Section 23, and also the amounts (if any) respectively awarded under each of the other clauses of the same sub section, together with the grounds of awarding each of the said amounts.
(2) Every such award shall be deemed to be a decree and the statement of the grounds of every such award a judgment within the meaning of Section 2 clause (2) and Section 2 clause (9) respectively, of the Code of Civil Procedure, 1908.
7. The provisions above subsumed would thus make it clear that the Civil Court has to pass an award in answer to the reference made by the Collector under Section 18 of the Act. If any party to whom notice has been served by the Civil Court and did not participate in the inquiry it would only be at his risk because an award would be passed perhaps to the detriment of the party concerned. But non participation of any party would not confer jurisdiction on the Civil Court to dismiss the reference for default"
5
The Apex Court considering the aforesaid provision held that reference application cannot be dismissed because of the default.
The controversy involved in this case is covered by the judgment in the case of Khazan Singh (supra). In view of the aforesaid, the impugned judgment order is not sustainable in law and it is set aside, the matter is remanded back to the reference Court to restore the file of Reference Case No.1077/2010 and proceed in the case.
Considering the facts of the case, there shall be no order as to costs."
A perusal of the aforesaid order of Division Bench clearly goes to show that apart from taking note of the fact that the reference has been rejected on the ground of the default committed by the petitioner, the provision of Section 26 is taken note of and the matter is remanded back to the reference Court for proceeding in accordance with law. In the present writ petitions also defaults have been committed by the petitioners and the reference is refused to be answered due to the aforesaid default on the part of the petitioners. However, in three of the cases i.e. W.P. No.175/2013, WP 174/2013 and WP 231/2013 it is stated that the award is confirmed but the requirement of writing a judgment as contemplated under Section 26 of the Land Acquisition Act and after following the proceeding required under Section 23 6
of CPC is not followed. That being so, it is a case where even though it is held that the award passed by the Land Tribunal is upheld but while upholding the award the requirement of Section 26 of the Land Acquisition Act is not followed. Under such circumstances, I do not deem it appropriate to relegate the petitioners to take recourse to the alternate remedy. Instead it is held that as the order passed by the Reference Court is not after following due process of law as held by the Division Bench, therefore, it is a fit case where the order passed in all the four cases should be quashed and matter is remanded back to the Reference Court for proceeding further as already been directed under similar circumstances in the order passed on 1.7.2011 in W.P. No.7822/2011 by this Court.
In view of the above, all the petitions are allowed. Orders impugned passed by the Court below are quashed. Reference Case No.762/2009, 50/2009, 566/2009 and Reference Case No.1061/2007 are restored to its original file and matter is remanded back to the Reference Court. Original file, if any received from the Court below be sent back.
All the four petitions stands allowed and disposed of. c.c. as per rules.
(RAJENDRA MENON)
JUDGE
Mrs.mishra
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