SHYAMSUNDAR MANTRI Vs. LAND ACQUISITION COLLECTOR CUTTACK

JUDGEMENT

(1.) In a reference under Ss. 18/30 of the Land Acquisition Act (hereinafter referred to as the 'Act') which was registered as Land Acquisition Case No. 41/90 in the court of Subordinate Judge, Jagatsinghpur, the date of hearing was fixed to 10-2-1981. The petitioner in this case could not appear on the date of hearing and the case was dismissed for default. A petition was filed u/S. 151 of the Civil Procedure Code for restoration of the land acquisition case on the ground that he was suffering from rheumatism on the relevant date and could not attend the court due to his illness. The learned trial court disbelieving the evidence adduced on behalf of the petitioner held that there was no sufficient cause which prevented him from appearing in the case on the date of hearing. In the result, the application for restoration was dismissed. The aforesaid order of the learned Subordinate Judge has been challenged in this revision. The Hon'ble Single Judge before whom the matter was placed for admission felt that it is necessary for examination as to whether the inherent power of a Civil Court can be invoked by the Subordinate Judge in a reference under the Land Acquisition Act and since the decision on this point is of far reaching consequence, the point should be decided by a Division Bench. This is how the matter has been placed before this Court.

(2.) Section 18 of the Act provides for a reference by the Collector to the court for determination as to the measurement of the land, the amount of the compensation, the persons to whom it is payable or the apportionment of the compensation among the persons interested. Section 30 empowers the Land Acquisition Collector to refer any dispute as to the apportionment of the compensation awarded under S. 11 of the Act or any part thereof or as to the persons to whom the same or any part thereof is payable. Section 53 of the Act is to the effect that save in so far as they may be inconsistent with any thing contained in the Land Acquisition Act the provisions of the Code of Civil Procedure, shall apply to all proceedings before the Court under the Act. In a case reported in 1976 (1) CWR 1 Gopal Charan Sahu v. Collector, Cuttack the Hon'ble single Judge of this Court observed that the Court dealing with a reference under the Land Acquisition Act is a Court and as such it has its inherent power which it can exercise is suitable cases. In the case reported in AIR 1977 SC 1348 : (1977 Tax LR 685) M/s. Jaipur Mineral Development Syndicate, Jaipur v. The Commissioner of I.T. New Delhi their Lordships examined the scope and ambit of inherent power of the Court in a case in which the Rajasthan High Court refused to entertain an application for rehearing a reference u/S. 66(1) of the Income tax Act. 1922 on the basis that it has become functus officio after declining to answer the reference in the absence of the party at whose instance the reference was made. Their Lordships found it difficult to subscribe to the view that whatever might be the ground for nonappearance of a party, the High Court having once passed an order declining to answer the question referred to it because of the nonappearance of that party, it functus officio or helpless and cannot pass an order for disposing of the reference on merits. Their Lordships expressed the view that the High Court in suitable cases has inherent power to recall the order made in the absence of the party and to dispose of the reference on merits. It was further observed that there is nothing in any of the provisions of the Act which, either expressly or by necessary implication, stands in the way of the High Court from passing an order for disposal of the reference on merits. This is so because the Courts have power in the absence of any express or implied prohibition, to pass an order as may be necessary for the ends of justice or to prevent the abuse of the process of the court. Section 151, CPC is not a substantive provision conferring any right to get any relief of any kind. There are of course some limitations in the matter of exercise of inherent power by a court. In exercising inherent power the court cannot override the express provisions of the law. To meet the various situations arising in a litigation, the courts do possess inherent powers to prevent miscarriage of justice or abuse of the process of court. In other words, by exercise of such inherent power, which the court would be deemed to possess, the court has the power to do the right or to undo a wrong in course of administration of justice in the absence of any provision in law to meet any situation in a case.

(3.) In a case reported in (1985) 60 CLT 234 Maharatna Khamari v. State of Orissa the Hon'ble single Judge of this Court following the view expressed in the case of Gopal Charan Sahu 1976 (1) CWR 1 permitted the Misc. Appeal to be converted to a civil revision in which an order passed under Order 9, Rule 9, C.P.C. rejecting an application for restoration of a land acquisition reference case was challenged. His Lordship in that case held that the Subordinate Judge had no jurisdiction to dismiss the reference for nonappearance of the petitioner and, therefore, set aside the order of the Sub-Judge on that ground. In a case recently decided by another single Judge of this Court reported in 1991 (II) OLR 164 Jogi Saha v. Collector, Cuttack his Lordship following the decisions already mentioned and taking note of the decisions of various other Courts came to the same conclusion that the land acquisition reference cannot be dismissed for non-appearance of the claimant under Order 9, Rule 8, C.P.C. and directed restoration of the case. In that case after dismissal of the land acquisition case for default the interested party had filed an application under Order 9, Rule 9, CPC for restoration and the same was dismissed as not maintainable. Examining various decisions touching the point his Lordship came to the conclusion that the reference court was justified in rejecting the application which was filed under Order 9, Rule 9, CPC, but an application u/S. 151, C.P.C. is maintainable in the circumstances. In the ultimate conclusion the court restored the reference case and directed for proceeding with the case from the stage immediately before its dismissal for default.