Further it is also apparent from the lower Court's record that the Hazura Singh's reference under Section 18 of the Act was made by the Collector to the District Court. As Hazura Singh died, none appeared for him on two dates. On 30.8.1978 as none appeared for Hazura Singh, his reference was dismissed. From the lower Court's record, it is evident that on this date, the Government Pleaded appeared. Under these circumstances, it was the duty of the government to supply to the Court the names and addresses of the legal representatives of the deceased-claimant to enable the Court to issue fresh notices to them under Section 20 of the Act. For holding this view, I take support from Abdul Karim S/o Abdul Hakim and Anr. v. State of Madhya Pradesh through the Collector, Bilaspur, A.I.R. 1964 Madhya Pradesh 171, wherein it is held that the proceedings under Section 18 are not suit proceedings, and in the very nature of those proceedings Order 22 Civil Procedure Code, cannot be applied to them, when a reference is made under Section 18 of the Act, the Court has to make an award under Section 26, no matter whether the person at whose instance the reference has been made appears or fails to appear before the Court or fails to produce evidence in support of his objection. It is, thus, clear that there cannot be a dismissal or abatement of reference petition as becoming infructuous. When the sons of deceased Hazura Singh filed the petition on 25.8.1981 to decide reference petition on merits and to set aside the order dated 30.8.1978, reference Court should have decided this petition on merits instead of taking the easiest course of dismissing this petition for non payment of process fee. Further, when the appellant filed the petition for restoration of that petition, even at that time their petition was dismissed vide the impugned order dated 7.10.1982.
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Punjab-Haryana High Court
Hazura Singh vs State Of Punjab on 22 November, 1996
Equivalent citations: (1997) 115 PLR 515
Bench: S Saksena
1. Being aggrieved by the order passed by the Additional District Judge, Faridkot dated 7.10.1982, appellant has filed this appeal.
2. Brief resume of !he facts is that 13 Kanals 1 Maria of land of appellants' father Hazura Singh along with other share holders was acquired by the government for setting up a grain market at-Malout. The Collector gave his award. Hazura Singh Hied an application under Section 18 of the Land Acquisition Act (in short the Act ) for enhancement of compensation. It was ordered that the notice be given to both the parties for 27.7.1979. On this date none appeared for Hazura Singh. The Government Pleader appeared for the Slate and an order was passed that notice be issued for summoning the petitioner for 30.8.1979, On this date, as none appeared for Hazura Singh, the reference was dismissed as having become infructuous. Hazura Singh could not appear as he died. By the will dated 28.12.1976 Hazura Singh bequeathed all his properly to applicants Balbir Singh and Sukhdev Singh, who are his sons. These applicants came to know of the dismissal of the reference petition on 11.8.1981. They immediately applied for certified copy of the said order, which was supplied to them on 24.8.1981. They filed an application on 25.8.1981 praying that order of dismissal of the reference petition be recalled; delay in filing the application be condoned. This application was fixed for 11.8.1982. Notice to the respondent could not be issued as process fee was not paid. Hence, on this date, petition was dismissed for non payment of process fee. On 26.8.1982 the applicants filed the petition for restoration of the petition filed on 25.8.1981. By the impugned order this petition was dismissed on 7.10.1982.
3. Petitioner's counsel contended that the notification was issued under Section 4 of the Act under which land of different land owners was acquired by the government. Hazura Singh's land was also acquired. 36 land references were decided and compensation was enhanced by the reference Court. This being 36th reference was dismissed because Hazura Singh died and none could appear on 30.8.1978. When the sons of Hazura Singh came to know of the dismissal of reference petition, they filed an application on 25.8.1981 for setting aside the dismissal order dated 30.8.1979. Counsel submits that these petitioners paid the amount of process fee etc. to their counsel, but by mistake the, counsel failed to pay the process fee and on that count, their petition was dismissed on 11. 8.1982. In their petition filed for its-restoration, petitioners contended that because of the absence of their counsel, their petition was dismissed. The learned lower Court held that it was not dismissed for non appearance of the counsel, but it was dismissed for non payment of process fee. Counsel contended that the process fee only worth Rs. 3/- was to be paid. For such a petty amount, the land reference should not have been dismissed by the learned Additional District Judge. Counsel never informed the petitioners that their petition has been dismissed for non payment of process fee. Later on, when they came to know of dismissal of their petition, they filed the petition on 26.8.1986 for the restoration.
4. Petitioners' learned counsel relying on Baldev Singh and Ors. v. State of Punjab through the Secretary Urban Development Department, Punjab at Chandigarh and Ors., (1982)84 P.L.R.124, State Bank of Paliala v. Shri Hakam Singh and Anr., (1983)85 P.L.R. 170, Lajpat Rai and Ors. v. State of Punjab and Anr., AIR 1981 Supreme Court 1401, The State of Punjab and Anr. v. Garja Singh and Ors., (1993-2)104 P.L.R. 40, Smt. Kamla Devi v. State of Haryana, (1986-1)89 P.L.R. 692, Shyam Shankar Sahai and Ors. v. State of Bihar, AIR 1974 Patna 176, contended that the reference should not have been dismissed in default or for non payment of process fee. The Court was duty bound to decide the reference even if the petitioners were not able to adduce their evidence. The Court should have decided the reference on the basis of the material on record.
5. Respondent's learned counsel vehemently argued that the case was not dismissed in default; hence the authorities relied on by the learned appellant's learned counsel are inapplicable in this case. He further contended that as after the death of Hazura Singh, these L. Rs never appeared in the reference case, the Court had no other option but to dismiss the reference petition as having become infructuous. Later on when the sons of Hazura Singh filed the petition for recalling the order dated 30.8.1979 and for deciding the reference on merits, it was ordered that the notice be sent to the respondents on payment of process fee, but as the process fee was not paid, the petition was dismissed on that count. Thus, according to him, the learned Additional District Judge, Faridkot has rightly passed the impugned order.
6. From the lower Court's record, it is evident that as process fee was not paid, the petition filed by the sons of deceased Hazura Singh was dismissed on 7.10.1982. For such a petty fault of a counsel/party, petition for deciding the reference under Section 18 of the Act on merits, should not have been dismissed. The learned Additional District Judge should have restored the petition under his inherent power. The lower Court fell into an error in passing the impugned order.
7. Further it is also apparent from the lower Court's record that the Hazura Singh's reference under Section 18 of the Act was made by the Collector to the District Court. As Hazura Singh died, none appeared for him on two dates. On 30.8.1978 as none appeared for Hazura Singh, his reference was dismissed. From the lower Court's record, it is evident that on this date, the Government Pleaded appeared. Under these circumstances, it was the duty of the government to supply to the Court the names and addresses of the legal representatives of the deceased-claimant to enable the Court to issue fresh notices to them under Section 20 of the Act. For holding this view, I take support from Abdul Karim S/o Abdul Hakim and Anr. v. State of Madhya Pradesh through the Collector, Bilaspur, A.I.R. 1964 Madhya Pradesh 171, wherein it is held that the proceedings under Section 18 are not suit proceedings, and in the very nature of those proceedings Order 22 Civil Procedure Code, cannot be applied to them, when a reference is made under Section 18 of the Act, the Court has to make an award under Section 26, no matter whether the person at whose instance the reference has been made appears or fails to appear before the Court or fails to produce evidence in support of his objection. It is, thus, clear that there cannot be a dismissal or abatement of reference petition as becoming infructuous. When the sons of deceased Hazura Singh filed the petition on 25.8.1981 to decide reference petition on merits and to set aside the order dated 30.8.1978, reference Court should have decided this petition on merits instead of taking the easiest course of dismissing this petition for non payment of process fee. Further, when the appellant filed the petition for restoration of that petition, even at that time their petition was dismissed vide the impugned order dated 7.10.1982.
8. Thus, in my considered view, the whole of the approach of the learned Additional District Judge is erroneous, unjust and against the provisions of the Act.
9. Accordingly, the appeal is hereby allowed: impugned order is set aside and the learned lower Court is hereby directed to decide the petition under consideration in accordance with the observations made herein above.
Parties arc directed to appear before the lower Court on 2.12.1996.
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