Writ Petition No.5428 of 2014

2nd February, 2015.

Petitioner Counsel: Shri A. SHELAT
Respondent Counsel: Ms. PREETI RANE, Shri V.H. KEDAR

Cases Cited:
Rajmani Vs. Collector, Raipur, (1996) 5 SCC 701 [Para 5]

JUDGMENT

JUDGMENT :- Rule made returnable forthwith.

Heard the matter finally by consent of the learned counsels appearing for the parties.

2. The Reference Court under Section 18 of the Land Acquisition Act has dismissed an application under Order IX, Rule 9 read with Section 151 of C.P.C for restoration of Land Acquisition Case No. 19 of 2001, on the ground that it is not maintainable, as the reference has been decided on merits by answering all the issues framed.

3. In Land Acquisition Case No. 19 of 2001, the Court decided all the issues after holding that the applicant and his counsel are absent and no evidence has been led to substantiate the claim on merits. This dismissal of reference was on 13.08.2012.

4. The petitioner who is the original applicant had two remedies, either to file Regular Civil Appeal under Section 54 of the Land Acquisition Act or to file an application under Order IX, Rule 13 of C.P.C to set aside the ex parte decree. The applicant has preferred an application under Order IX, Rule 9 read with Section 151 of C.P.C. for restoration of the Land Acquisition Reference case, proceeding on the footing that the reference need to be decided on merits after framing the application to lead evidence in support of the claim. In the absence of the applicant and his counsel before the Reference Court, which is an undisputed fact in the present case, according to the petitioner, the option with the Court was to dismiss the application in default and there was no occasion for the court to decide the case on merits. Therefore, presuming that the matter has been dismissed in the absence of the applicant and his counsel, the application under Order IX, Rule 9 of C.P.C is filed.

5. Shri Shelat, the learned counsel for the petitioner has relied upon the decision in the case of Rajmani vrs. Collector, Raipur, reported in (1996) 5 SCC 701, more particularly Paragraph No.4, which is reproduced below;

"4. 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 Acquisition Collector to be a defendant for the purpose 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 were possessed of higher value for award of 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 armchair 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 was 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 provision 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 9 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 grounds in support thereof is a judgment under Section 2(9) CPC. The appeal under Section 54 would be dealt with under Order 41 CPC".

6. The Apex Court has held that though an appeal would lie under Section 54 of the Land Acquisition Act against such an award, alternate remedy is also available. It further holds that whether the application is filed under Order IX Rule 9 of C.P.C or under Order 9 Rule 13 or under Section 151 C.P.C, it does not make any difference. In view of this, the trial Court has committed an error in holding that the application under Order IX Rule 9 of C.P.C read with Section 151 of C.P.C was not maintainable. The application should have been decided on its own merits and it should not have been dismissed on the ground that it is not maintainable.

7. In the result, the writ petition is allowed. The order dated 05.07.2013 passed by the trial Court in M.J.C. No. 340 of 2012 below Exh.1 is hereby quashed and set aside. The trial Court is directed to decide the M.J.C. No. 340 of 2012 on its own merits.

Rule is made absolute in these terms. No orders as to costs.

Petition allowed.