RAJMANI Vs. COLLECTOR, RAIPUR

JUDGEMENT

(1.) THIS appeal by special leave arises from the order passed by the learned Single Judge of the Madhya Pradesh High Court on 29.6.1979 in CR 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 15.11.1973 awarding compensation @ Rs. 1000 per acre. Dissatisfied therewith, the respondent made an application on 29.4.1974 for reference under section 18. In furtherance thereof, a reference came to be filed in the Court of the Additional 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 1.7.1975, he directed issuance of notice to the appellant. It came to be adjourned from time to time for service on the appellant. Ultimately, on 2.2.1976 in the proceedings of the Court the notice was stated to have been served on the appellant but no date thereon was put nor was it signed by the witnesses. Accordingly, by proceedings dated 10.2.1976 the reference Court passed order, after setting him ex parte 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.

(2.) THE question is whether the view taken by the High Court is correct in law? It is contended by Shri Sahu, learned counsel for the appellant, that the appellant had not been served with the notice. As a 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 and restoration of the case so as to get an opportunity of being heard. The Additional District Judge rightly set aside the order. The view of the High 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 judgment of this Court in Deep Chand v. Land Acquisition Officer [(1994) 4 SCC 99] and State of Mizoram v. Biakchhawna [(1995) 1 SCC 156].

(3.) 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 person, he is treated to be a plaintiff 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 were possessed of higher value for award of the compensation to be just and adequate compensation. The Land Acquisition Officer is to rebut the evidence adduced by the claimant/interested person. The burden is always on the 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 armchair 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 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 of 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 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.