VIJAYKUMAR HANUMANPRASAD GOENKA Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) RULE returnable forthwith by consent of the learned counsel for revision-petitioners and the learned A. G. P. appearing for respondent.

(2.) THE present revision-petitioners are the owners of field Gat No. 111, admeasuring 7. 96 hectares, situated at Village Yeota, Taluka and District Akola. The abovesaid land was acquired by the State of Maharashtra. The Land Acquisition Officer (General), Akola, in Case No. LAQ/47/shioni-Shivapur, Yeota and Kumbhari/2/91-92 passed an award. Dissatisfied with the amount of compensation awarded, the revision-petitioners filed a reference under Section 34 of Maharashtra Industrial Development Act, 1961 and the same was registered as LA Case No. 386/97. The case was allotted to the Court of 3rd Additional District Judge, Akola. As per the revision-petitioners, when the case was fixed for evidence, it was adjourned from time to time. On 27-3-2002 when the case was for evidence, the counsel for the revision-petitioners, who were the applicants in the reference case, did not file an application for adjournment. He was under the impression that the case would be adjourned because a Session Trial was going on in the abovesaid Court. However, after 2/3 days, it was found that the reference was dismissed on 27-3-2002 itself on the ground that the present revision-petitioners (applicants in that case) had not proved the enhanced rate.

(3.) THE revision-petitioners then filed MJC No. 66 of 2002 for the restoration/recall of the abovesaid order dated 27-3-2002 under Order 9, Rule 9 read with Section 151, Civil Procedure Code. Thus, by referring to the provision under Order 9, Rule 9, Civil Procedure Code, the revision-petitioners treated the dismissal of reference to be a dismissal in default. Alternatively, it was the stand of the revision-petitioners that if it was not treated to be a dismissal in default, still since the order was not on merits, it was liable to be recalled under Section 151, Civil Procedure Code. During the arguments, it was canvassed on behalf of the revision-petitioners that the case could not have been dismissed by the reference Court for the reason that the revision-petitioners/applicants were absent and the Court, while passing the order of dismissal, ignored the material available on record. Considering the ratio of Khazan Singh (Dead) by LRs. v. Union of India, (2002) 2 SCC 242, the learned 3rd Additional District Judge accepted that the Court conducting the trial of land acquisition reference case is not empowered to dismiss the case for want of prosecution or in default of the applicants/claimants and the Court has to deliver a judgment within the scope of clause II of Section 2 of the Code of Civil Procedure. However, as per the learned Judge, the above principle was not violated by him while passing the order dated 27-3-2002 dismissing the reference. As per the learned Judge, in the order passed by him, the reasons considering the material available on record were given and the disposal of the abovesaid land acquisition case (reference) was not for want of prosecution or in default of the applicants. In this view, the 3rd Additional District Judge, Akola, by the judgment and order dated 27-6-2003, dismissed MJC No. 66 of 2002.