SHYAM SHANKAR SAHAI Vs. STATE OF BIHAR

JUDGEMENT

(1.) Certain land belonging to the petitioners was acquired under the Land Acquisition Act, 1894 (hereinafter called the Act). Collector's award was made for a certain amount. The petitioners asked the Collector to make a reference under Section 18 of the Act as, according to them, the amount awarded by the Collector was too inadequate. Accordingly reference was made by the Collector in Land Acquisition Case No. 289 of 1964. On the 9th of September, 1967 a time petition was filed on behalf of the petitioners on certain grounds. The time petition was rejected and thereafter the court dismissed the land acquisition case for default The petitioners filed an application, presumably, under Order 9, Rule 9 of the Code of Civil Procedure (hereinafter called the Code) for restoration of the land acquisition case trying to make out a sufficient cause. The court below, on a consideration of the evidence adduced before it, did not find in favour of the petitioners that sufficient cause prevented them from appearing when the land acquisition case was called out on 9-9-67. In that view of the matter, their application was dismissed. The petitioners filed miscellaneous first appeal under Order 43, Rule 1 (c) of the Code.

(2.) Learned counsel for the petitioners first pressed his miscellaneous appeal and endeavoured to persuade us, on the evidence adduced by the petitioners, to find sufficient cause for them lor their non-appearance on 9-9-67. We did not feel persuaded to hold that there was sufficient cause for their non-appearance. Learned counsel for the petitioners then pointed out that the order of the court below passed on 9-9-67 dismissing the land acquisition case in default of appearance of the petitioners was without jurisdiction as the court below had no power to dismiss a reference case under Section 18 of the Act for default of the claimant. In support of the said proposition of law, learned counsel relied upon a Bench decision of the Madhya Pradesh High Court in Abdul Karim v. State of Madhya Pradesh, (AIR 1964 Madh Pra 171) and some observations in a Bench decision of this Court in Bhadar Munda v. Dhuchua Oraon. (AIR 1970 Pat 209). Learned counsel submitted that the application filed by the petitioners ought to have been treated as an application invoking the inherent jurisdiction of the court under Section 151 of the Code to recall the order dated 9-9-67 which was passed without jurisdiction. We were impressed by this argument. The claimant has to file a petition before the Collector under Section 18 of the Act asking him to make a reference to the court. On such reference being made, the claimant does not become a plaintiff or a petitioner in the land acquisition case; rather under Section 20 of the Act the court has to serve a notice even on the claimant who had filed the application before the Collector asking for a reference under Section 18 of the Act. The court has to make an award under Section 26. Although Section 53 provides-

(3.) In our opinion, the order dated 9-9-67 passed by the court below dismissing Land Acquisition Case 289 of 1964 for default was without jurisdiction; this ought to have been recalled in exercise of the inherent power of the court. We accordingly allow this civil revision, set aside the order of the court below dismissing the application for restoration of the land acquisition case and direct the court below to recall the order dated 9-9-67 and proceed to make the award in accordance with Section 26 of the Act on such materials as were available before the court on that date, i.e., 9-9-67. In this civil revision we cannot, justifiably in law, allow the petitioners to adduce any further evidence because it is not for us to examine in this civil revision whether the time petition filed by them on 9-9-67 was rightly rejected or wrongly rejected. This matter may come up for consideration if a first appeal is filed in this Court from the award which may be made by the court below, in pursuance of our direction, on the materials available on 9-9-67. In that first appeal it may be possible for the petitioners to agitate that their time petition was wrongly rejected and then it will be for the first appellate court to take such view of the matter as it may deem fit and proper to take for deciding the case in accordance with law. As the State of Bihar has not appeared to oppose this application, there will be no order as to cost.