Krishna Bai (Died) Her Lrs ... vs The Land Acquisition Officer And ...
2022 Latest Caselaw 2529 MP

                                                                        1
                                         IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR
                                                                         BEFORE
                                                           HON'BLE SHRI JUSTICE VISHAL MISHRA
                                                              ON THE 23rd OF FEBRUARY, 2022

                                                            MISC. PETITION No. 939 of 2020

                                               Between:-
                                               KRISHNA BAI (DIED) HER LRS GULABCHAND S/O
                                               MISHRILAL , AGED ABOUT 48 YEARS, R/O
                                               HARSUD AT PRESENT GURUDEV PARISHAR,
                                               HARDA, DISTRICT HARDA, M.P. (MADHYA
                                               PRADESH)

                                                                                                       .....PETITIONER
                                               (BY SHRI SHASHANK UPADHYAY, ADVOCATE )

                                               AND

                                    1.         THE   LAND   ACQUISITION  OFFICER   AND
                                               REHABILITATION OFFICER NHDC NHDC NO. 6
                                               INDRA   SAGAR/OMKARESHAWAR,     PROJECT
                                               KHANDWA, M.P. (MADHYA PRADESH)

                                    2.         THE COLLECTOR EAST NIMAD KHANDWA EAST
                                               NIMAD (MADHYA PRADESH)

                                    3.         EXECUTIVE       ENGINEER      NARMADA
                                               DEVELOPMENT DIVISION SUB DIVISION THR.
                                               N H D C NVDA, OFFICE COMPLEX KHANDWA
                                               (MADHYA PRADESH)

                                                                                                    .....RESPONDENTS
                                               (BY SHRI VIJAYENDRA SINGH, PANEL LAWYER )

                                           This petition coming on for admission this day, the court passed the
                                    following:
                                                                         ORDER

I n this petition filed under Article 227 of the Constitution of India, the petitioner has assailed the order dated 02.05.2009 passed in Reference Case No.1372-A/2007 by the Second Additional District Judge, District Khandwa (M.P.), whereby the reference case filed by the petitioner has been dismissed on default.

Case of the petitioner is that the reference Court was required to answer the reference and it could not have been dismissed without answering it.

The coordinate Bench in the matter of Vinay Kumari Vs. The Land Signature Not Verified SAN Acquisition & Rehabilitation Officer and others in W.P. No.17704/2015 vide Digitally signed by SUSHEEL KUMAR JHARIYA Date: 2022.02.26 14:16:57 IST order dated 5/11/2015 has held as under:-

“Shri Shashank Upadhyay, learned counsel for the petitioner. Shri Deepak Awasthi, learned G.A. for the respondent/State. Heard.

Being aggrieved by the rejection of the reference in default of appearance and assailing the said order, this petition has been filed.

Since the issue is covered by the decision rendered by the Apex Court in the case of Khazan Singh (dead) by L.R.s vs. Union of India, [(2002) 2 SCC 242, the matter is heard finally.

The reference was made under Section 18 of the Land Acquisition Act on an application made by the petitioner before the Collector, Land Acquisition to the District Court, where the same was registered as Reference Case No.796/2009. The reference was dismissed by the court below on the ground that the counsel for the applicant did not want to prosecute the same and affirmed the award passed by the Land Acquisition Officer.

After examining the order passed by learned Reference Court, it seems that the Reference Court was required to answer the reference and not to dismiss the same mechanically, as has been done vide order impugned.

In view of the aforesaid and in view of the law laid down by the Apex Court in case of Khazan Singh (supra), wherein it has categorically been held that reference is required to be answered and not to be dismissed in default, the writ petition is allowed. The order dated 22.2.2010 is hereby set aside. The reference case is restored to its original number and remitted back to the Reference Court to decide the same in accordance to law.

With the aforesaid, the writ petition stands finally disposed of. Certified copy as per rules."

Similarly in the matter of Prahlad Vs. The Land Acquisition & Rehabilitation Officer and others in W.P. No.174/2013 by order dated 26/2/2013 taking note of Section 26 of of the Act it has been held as under:-

“I have heard learned counsel for the parties at length and perused the record. In the order passed by the Division Bench on 27.8.2010 in the cases as relied upon by Shri Shashank Upadhyay, the following directions have been issued :-

"The Court below observed that inspite of various opportunities, the process fee was not paid and the petitioner had not taken any steps for service on the respondents.

"26. Form of Award:-(1) 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 Signature Not Verified SAN clauses of the same sub section, together with the grounds of awarding each of the said

Digitally signed by SUSHEEL KUMAR amounts.

JHARIYA Date: 2022.02.26 14:16:57 IST

(2) Every such award shall be deemed to be a decree and the statement of the

grounds of every such award a judgment within the meaning of Section 2 clause (2) and Section 2 clause (9) respectively, of the Code of Civil Procedure, 1908.

7. The provisions above subsumed would thus make it clear that the Civil Court has to pass an award in answer to the reference made by the Collector under Section 18 of the Act. If any party to whom notice has been served by the Civil Court and did not participate in the inquiry it would only be at his risk because an award would be passed perhaps to the detriment of the party concerned. But non participation of any party would not confer jurisdiction on the Civil Court to dismiss the reference for default."

The Apex Court considering the aforesaid provision held that reference application cannot be dismissed because of the default.

The controversy involved in this case is covered by the judgment in the case of Khazan Singh (supra).

In view of the aforesaid, the impugned judgment order is not sustainable in law and it is set aside, the matter is remanded back to the reference Court to restore the file of Reference Case No.1077/2010 and proceed in the case.

Considering the facts of the case, there shall be no order as to costs." A perusal of the aforesaid order of Division Bench clearly goes to show that apart from taking note of the fact that the reference has been rejected on the ground of the default committed by the petitioner, the provision of Section 26 is taken note of and the matter is remanded back to the reference Court for proceeding in accordance with law. In the present writ petitions also defaults have been committed by the petitioners and the reference is refused to be answered due to the aforesaid default on the part of the petitioners. However, in three of the cases i.e. W.P. No.175/2013, WP 174/2013 and WP 231/2013 it is stated that the award is confirmed but the requirement of writing a judgment as contemplated under Section 26 of the Land Acquisition Act and after following the proceeding required under Section 23 of CPC is not followed. That being so, it is a case where even though it is held that the award passed by the Land Tribunal is upheld but while upholding the award the requirement of Section 26 of the Land Acquisition Act is not followed. Under such circumstances, I do not deem it appropriate to relegate the petitioners to take recourse to the alternate remedy. Instead it is held that as the order passed by the Reference Court is not after following due process of law as held by the Division Bench, therefore, it is a fit case where the order passed in all the four cases should be quashed and matter is remanded back to the Reference Court for proceeding further as already been directed under similar circumstances in the order passed on 1.7.2011 in W.P.No.7822/2011 by this Court.

In view of the above, all the petitions are allowed. Orders impugned passed by the Signature Not Verified SAN

Court below are quashed. Reference Case No.762/2009, 50/2009, 566/2009 and Reference Digitally signed by SUSHEEL KUMAR JHARIYA Date: 2022.02.26 14:16:57 IST Case No.1061/2007 are restored to its original file and matter is remanded back to the

Reference Court. Original file, if any received from the Court below be sent back.â€​

Undisputedly the present case also stands on the same footing. Hence for the reasons which have been assigned in the aforesaid orders in the case of Vinay Kumari (supra) and Prahlad (supra) and the fact that the reference has not been answered in the present case, the impugned order is set aside and the matter is remanded back for fresh decision of the reference in accordance with law.

With the aforesaid observations, this petition is disposed of. C.C. as per rules.

(VISHAL MISHRA) JUDGE sj

Signature Not Verified SAN

Digitally signed by SUSHEEL KUMAR JHARIYA Date: 2022.02.26 14:16:57 IST