25 July 1996
Supreme Court


Case number: Appeal (civil) 1885 of 1981






DATE OF JUDGMENT:       25/07/1996


CITATION:  1996 SCALE  (5)700



JUDGMENT:                          O R D E R      This appeal  by special  leave arises  from  the  order passed by  the learned  single judge  of the  Madhya Pradesh High Court  on June  29, 1979  in C.R.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 November  15,  1973  awarding compensation @  Rs.1,000/- per acre. Dissatisfied therewith, the respondent  made an  application on  April 29,  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  July 1, 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  February   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 February  10, 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.      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 judgments of this Court in Deep Chand & ors. v. Land  Acquisition Officer  & Ors.  [(1994) 4  SCC 90] and State of Mizoram v. Biakchhawna [(1995) 1 SCC 156].      With a  view to  appreciate the respective contentions, it is  necessary to  read relevant  provisions of  the  Act. Section 53  of the  Act envisages  that "[s]ave in so far as they may  be inconsistent  with anything  contained in  this Act, the  provisions  of  the  C.P.C.  shall  apply  to  all proceedings before  the Court under this Act". It would thus be clear  that so  long as there is no inconsistency between the provisions of the Act and the C.P.C., all the provisions contained in C.P.C. shall apply to the proceedings under the Act. "Court"  has been  defined in Section 2 [d] of the Act. to mean  "a principal  Civil Court  of original jurisdiction unless the  appropriate Government  has appointed  a special judicial  officer  within  any  specified  local  limits  to perform the  functions of  the Court  under this  Act", When reference was  made under  Section 18,  it should  be to the principal Civil  Court of  original jurisdiction  or special judicial  officer  within  any  specified  local  limits  to perform the  functions of  the Court.  Section 19  envisages that upon an application made under Section 18 in the manner prescribed thereunder,  the Collector  should make reference to the  Court  with  all  the  information  in  writing,  as indicated  in  sub-section  [1]  of  Section  19.  The  said statement shall  be attached  with  a  schedule  giving  the particulars of the notices served upon and of the statements in writing  made or  delivered by,  the  parties  interested therein respectively. On receipt thereof, Section 20 enjoins the court  the  service  of  the  notice  with  a  mandatory language. The  Court shall  thereupon, cause  notice  served upon the  persons named  in the reference including the Land Acquisition Officer/Collector,  as indicated  in clauses (a) to (c)  of Section 20 giving and specifying the day on which the Court will proceed to determine the objection and direct the parties  to appear  before the  Court on  that clay.  In other words,  it is  the mandatory duty of the Court to have the notices  served on  the persons,  viz., the applicant or all persons  interested in  the objection  filed before  the Land Acquisition  Collector, except  if any  of  them  gives consent when produced to receive payment of the compensation awarded and in case of objection relating to the area or the amount of  land acquired  or the  amount of the compensation upon the  Collector.  Land  Acquisition  Officers  upon  the receipt  and   after  service  of  the  notice,  Section  22 envisages that  every proceedings shall be taken in the open Court and  all persons  entitled to  practise in  any  civil Court in  a State shall be entitled to appear, plead and act in such  proceedings. It  would thus  be clear  that upon an application made  under Section  18  of  the  Act  the  Land Acquisition  Officer/Collector,   when   he   receives   the



application within  the limitation prescribed under the Act, is enjoined  to make  a  reference  as  above  mentioned  in section 19.  Upon receipt  of those  applications, the Court should case  the notices notice served on the applicants, as well  as   all  interested   persons  and  Land  Acquisition Officer/Collector. The  notice required to be served as 5 of the CPC  and  the  manner  of  service  has  been  indicated thereunder. Therefore, it should be the duty of the Court to have the  notice served.  It is seen that the notice was not properly served  on the  applicant.  It  would  appear  that notice was  serve on the father of the appellant, Brij Mohan Lal who  is now found to have died on December an, It, i.e., much before  the date  of these  alleged service.  It would, therefore be  clear that  the process  has not duly effected the service  on the  appellant. As a Consequence, he did not have any occasion to appear before the Court.      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  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  possessed  of higher value  for award  or 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 arm  chair 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 upon the question whether  notice he properly served on the  claimant and 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  or 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 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   ground  in  support thereof is  a judgment  under Section  2(9) CPC.  The appeal under Section 54 would live dealt with under Order 41 CPC.      The ratio  of Deep  Chand’s case  has no application to the facts  of this  Case. In  that case  the  question  was: whether an  order passed  by the  Collector under Section 49 [1] of  the Act is an award and whether it is appealable? It was held  to  be  neither  a  decree  nor  an  award  as  no adjudication was involved. in the order passed under Section 49 [1]  and, therefore, no appeal would i.e under Section 96 of the  C.P.C. or  Section 54 of the Act. Equally, the ratio



of Biakchhawna’s  case [supra]  has no  application  to  the facts of this case. Therein, without seeking reference under Section 18  and the  procedure to be followed under Sections 18  to   20  and  31,  civil  suit  came  to  be  filed  for determination or  the compensation for the acquired land. It was held that civil suit was not maintainable in view of the inconsistency found  in the  Act, viz., determination of the compensation on  reference and  an appeal  thereunder to the civil Court  under Section 54. thus, the above two decisions are of little assistance to the State. The ratio of v. State of Maharashtra  v. M.S. Hatkar [(1995) 3  SCC 316 ] also has no application to the facts in this case. Therein, after the decree and  award passed  under Section  26 became  final an application under  Sections 152 and 151 CPC came to be filed after the  coming into  force of  the Amendment.  Act. 68 of 1984, to  amend the  decree and to grant additional amounts, as enjoined  under Sections  23 [2]  28 and  23 [1-A] of the Act. Therein,  it was  held that  after the  decree  becomes final, unless  the decree is duly amended in accordance with law, the civil Court has no jurisdiction to amend the decree and pass additional amount under the Amendment Act.      Accordingly we  hold that an application under Order 9, Rule 9  read with  Section 151, CPC is the proper remedy and procedure.  The   Additional  district   Judge  has  rightly entertained the  application,  setting  aside  the  ex-parte order.      The appeal  is accordingly  allowed. The  order of High Court stands  set aside  and that  of the civil Court stands restored. No costs.