STATE OF ORISSA Vs. AJOYA KUMAR PADHEE

JUDGEMENT

(1.) THIS an appeal by the State of Orissa from the judgment of the Subordinate Judge of Sambalpur on a reference made by the Land Acquisition. Collector Sambalpur under Section 18 of the Land Acquisition Act. The Respondent 's plot of land, bearing Nos. 508, 511 and 516 having a total area of about 56 cents were acquired by the State for the construction of bridge over Haradjore near Sambalpur town. The Collector estimated the compensation payable at Rs. 25/ - percent but the Respondent claimed compensation at Rs. 300/ - percent. The suit was registered in the Civil Court on 9 -2 -1962 and for nearly a year adjournments were freely granted to both parties on their request. On 20 -8 -1962, the Government Pleader appearing for the Appellant filed a petition for issue of Dasti summons to his witnesses. Dasti summons were issued as prayed for and again on 2 -7 -1962 summons were issued at the request of the Advocate for the Respondent. The suit was posted for hearing on 7 -7 -1962 but on that day though the Respondent was ready with his witnesses, the State of Orissa asked for adjournment on the ground that the Government Pleader had gone away to Kuchinda on some urgent work. The prayer for adjournment was rejected and then the case was heard ex -parte and, after examining the Respondent and his witnesses the Court passed an ex -parte order to the effect that compensation be paid at Rs. 300/ - percent as deposed to by the Respondent. Soon after, a petition was filed for setting aside the Ex -parte judgment, but that petition itself was filed late by two days, Hence another petition for condoning the delay under Section 5 of the Limitation Act was filed starting that due to the absence of the Collector, the restoration petition could not be filed earlier. The learned Subordinate Judge was not satisfied with the reason given and hence refused to condone the delay and to set aside the ex -parte decree and dismissed the petition on 18 -8 -1962. The learned Advocate General contended that the lower Court exercised its discretion wrongly in not granting an adjournment when the State of Orissa was not ready on 7 -7 -1962 and that the State was willing to pay costs if the suit was remanded to the lower Court for re -hearing after giving both the parties an opportunity of being heard. Mr. Mohapatra for the Respondent was not agreeable to this suggestion. We are also not satisfied with the reasons given by the State for its non -appearance on 7 -7 -1962 when the case was fixed for hearing and also for the delay of two days in filing an application under Order 9, Rule 13 Code of Civil Procedure for setting aside the ex -parte decree. The State appears to have conducted this litigation in a very leisurely manner. It is not clear as to whether the work at Kuchinda was so very urgent that the Government Pleader could not give prior intimation to the Court about his inability to appear on 7 -7 -1902. Then again there is no reason as to why there should be a delay of two days in filing petition for restoration under Order 9, Rule 13 Code of Civil Procedure. Such gross negligence on the part of the lawyer for the State of Orissa could not be condoned. We are therefore not inclined to set aside the judgment of the lower Court merely because there was an ex -parte decree.

(2.) THE learned Advocate -General contended that even on the ex -parte evidence as recorded by the trial Court the amount of compensation fixed for the Respondent was not justified. But 1 find that the Respondent is a respectable legal Petitioner of Sambalpur, and his statement that the price would be Rs. 300/ - percent is fully corroborated by the evidence of recent sales of lands in the vicinity. His witness Ali Khan (p.w. 2) deposed that lands in the vicinity of the acquired land were purchased by him for Rs. 6500/ - about 4 or 5 years before the present acquisition (i.e. some time in 1957 -1958). Those lands were 25 cents in area hence the price of the adjacent land in 1957 -58 may be taken as Rs. 260/ - percent. The acquisition of the disputed lands took place in 1960 and in view of the steady increase in price of lands since then, especially in a place like Sambalpur town which is developing rapidly, it cannot be said that an increase of Rs. 40/ - percent during a period of three years was an exaggeration. We are therefore not inclined to interfere with the finding of the lower Court that the value of the acquired land should be estimated at Rs. 300/ - percent.

(3.) THE learned advocate -General also raised the question of jurisdiction of the Subordinate Judge of Sambalpur to bear this reference. We find that the reference was originally made to the District Judge who transferred it to the file of the subordinate Judge of Sambalpur on 6 -12 -1961. There were innumerable adjournments taken by the Government Pleader on behalf of the State of Orissa but the jurisdiction of the District Judge to transfer the case for disposal to the Subordinate Judge or of the latter 's jurisdiction to hear the case was not challenged, The contention of the Advocate -General is that by virtue of Clause (d) of Section 3 of the Land Acquisition Act the Court having the jurisdiction to hear the reference, is the principal Court of original jurisdiction (i.e. the District Judge) or any other special judicial officer appointed by the State Government for that purpose. Clause (d) of Section 3 of the said Act may be quoted in full: