2004(1) ALL MR 651
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(NAGPUR BENCH)
S.G. MAHAJAN, J.
Kawadu S/O. Madhav Bansod Vs. State Of Maharashtra & Anr.
Civil Revision Application No.114 of 2003
2nd July, 2003
Petitioner Counsel: Shri. V. S. DHOBE
Respondent Counsel: Shri. DOIFODE
Land Acquisition Act (1894), Ss.18, 26, 53, 54 - Proceedings under Act - Provisions of Civil P.C. apply to proceedings before court under Act in terms of S.53 of Act - Reference under S.18 to civil court - On date fixed for hearing applicant and counsel absent - Reference dismissed by judgment and order - Dismissal is for failure to adduce evidence - Order cannot be taken to be an adjudication and hence cannot be treated to be award - Dismissal also cannot be treated as dismissal in default - Appeal against such order does not lie under S.54 of Act - Hence remedy of revision is available to claimant - Revision is maintainable in the case. (Paras 7, 9)
M. S. Ramaiah Vs. Special Land Acquisition Officer, AIR 1974 Karnataka 122 [Para 8]
2. This revision is directed against the judgment and order dated 30-12-02 passed by Civil Judge Senior, Division, Yavatmal, in Land Acquisition Case No.146 of 1997, whereby he dismissed the reference made to the Civil Court under Section 18(1) of Land Acquisition Act.
3. The land bearing Sur. No.67/2 of village Borgaon owned by the present revision petitioner, who is the applicant in the Land Acquisition Case, was acquired in the land acquisition proceedings bearing No.L.A.C./2/47/94-95 of mouza Borgaon by the Special Land Acquisition Officer, Minor Irrigation Works II, Yavatmal. The Land Acquisition Officer passed an award. As the revision petitioner was not satisfied with the amount of compensation awarded by the Land Acquisition Officer he applied to the Collector for making a reference and a reference was made by the Collector accordingly under Section 18 of the Land Acquisition Act for the enhancement of compensation to the Civil Court Yavatmal.
4. The proceedings of Land Acquisition Case No.146/97 were taken before the Civil Judge, Senior Division, Yavatmal. On the date on which the case was fixed for evidence the revision petitioner remained absent. His counsel was also not present. So no evidence came to be adduced by the revision petitioner. The learned Civil Judge, Senior Division, Yavatmal therefore dismissed the reference by the judgment and order as stated above, which are impugned in this revision.
5. The question is whether the revision would lie against the above judgment and order. As per Section 54 of the Land Acquisition Act, 1894, an appeal lies only in any proceedings under the Land Acquisition Act to the High Court from the award or from any part of the award of the Court (Civil Court). The learned counsel for revision petitioner canvassed that in this case the judgment and order passed by the learned Civil Judge Senior Division, Yavatmal is not an award and hence no appeal would lie against the said judgment and order. It is his submission that the requirements of award as per Section 26(1) of the Land Acquisition Act are not fulfilled. The provision of Section 26(1) of Land Acquisition Act reads as below :
"Every award under this part shall be in writing signed by the Judge, and shall specify the amount awarded under clause first of sub-section (1) of Section 23, and also the amounts (if any) respectively awarded under each of the other clauses of the same sub-section, together with the grounds of awarding each of the said amounts."
He, therefore, submitted that the order passed by the Civil Judge, Senior Division, in the aforesaid case cannot be regarded to be an award since the same is not in the form of Section 26(1) of the Land Acquisition Act.
7. It is true that the adjudication made by the Civil Court on the reference has to be regarded as an award, whether an enhanced compensation is given or not. But in that event the Court should consider the material on record, even if the party is absent and has failed to adduce evidence. Unless the material on record is considered the order cannot be said to be an adjudication. In the instant case the ground given for the dismissal of reference by the Civil Court is that the applicant (present revision petitioner) remained absent and did not adduce any evidence to show that a proper compensation was not paid to him and that he is entitled to more compensation than paid. The above order clearly shows that the reference was dismissed only for the reason of failure of the applicant (present revision petitioner) to adduce evidence. Thus the material on record is not considered by the Civil Court. It is not considered as to how the compensation awarded by the Land Acquisition Officer was correct. So the order cannot be taken to be an adjudication and therefore the same cannot be treated to be an award. The order passed by the Civil Judge, Senior Division, Yavatmal also cannot be treated to be a dismissal of the reference in default. The learned counsel for revision petitioner submitted that the case could not be dismissed in default also.
8. On the point as to what should be the form of award and the duty of the court when the claimant is absent or if present fails to adduce evidence, the learned counsel for revision petitioner cited M. S. Ramaiah and others Vs. Special Land Acquisition Officer, AIR 1974 Karnataka 122. This case lays down that when a reference is made to the Court (Civil Court), it is its duty to determine the amount of compensation payable for the land or lands acquired; the Court has no jurisdiction to refuse to determine the amount of compensation even where the claimant remains absent or where he is present, fails to adduce evidence; the Court further has to apply its mind and make an award and cannot blindly confirm the award of the Land Acquisition Officer. The case further enunciates that the award which the Court passes must be in the form of a judgment containing the statement of the grounds for the award. Where the claimant remains absent or does not produce evidence, it is not open to the Court to dispose of the reference stating that the claim of the claimant is dismissed or that the reference is rejected. This case is also on the point that the reference cannot be dismissed in default.
9. As already stated above an appeal against the order of the Civil Court lies to the High Court against the award as is laid down in Section 54 of the Land Acquisition Act. The observations made above would reveal that the judgment and order of the Civil Judge Senior Division, Yavatmal in the above mentioned case cannot be regarded to be an award. So no appeal would lie. Then the question would arise as to what remedy is available to the claimant/applicant. In this connection the learned counsel for revision petitioner placed reliance on the provision of Section 53 of the Land Acquisition Act which reads as below :
"Save in so far as they may be inconsistent with anything contained in this Act, the provisions of the Code of Civil Procedure, 1908, shall apply to all proceedings before the Court under this Act."
By virtue of the above provision of Section 53 of the Land Acquisition Act the Court under the Land Acquisition Act can be taken to be subject to the revisional jurisdiction of the High Court. Since there is no remedy of appeal and Section 53 provides that provisions of the Code of Civil Procedure shall apply to all the proceedings under the Land Acquisition Act, the remedy of revision would be available to the applicant/claimant. In the above view of the matter the present revision is maintainable.
10. Since the Civil Judge, Senior Division, Yavatmal dismissed the reference of the present revision petitioner without considering the material on record, the matter needs to be remanded to that Court for passing the order in the light of the discussion made above. As the matter is being remanded, the Civil Judge shall also be directed to give an opportunity to the revision petitioner and also to State to lead evidence.
The matter is remanded back to the Court of Civil Judge, Senior Division, Yavatmal for deciding the reference afresh. The Civil Judge, Senior Division shall give an opportunity to the revision petitioner (original applicant) and also to State to lead evidence and shall then decide the reference in the light of the observations made by this Court in the instant judgment and pass an award accordingly.
The revision petitioner shall appear in the Court of Civil Judge, Senior Division, Yavatmal on 01-08-2003.
Rule is disposed of in above terms.