Madhya Pradesh High Court
Sahib vs The Land Acquisition ... on 31 March, 2022
Author: Vishal Mishra
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VISHAL MISHRA
ON THE 31st OF MARCH, 2022
MISC. PETITION No. 3933 of 2018
Between:-
SAHIB S/O SALIKRAM , AGED ABOUT 37 YEARS,
OCCUPATION: LABOUR R/O VILLAGE NANDANA,
TEHSIL HARSUD, DIST. EAST NIMAD , KHANDWA
(MADHYA PRADESH)
.....PETITIONER
(BY SHRI KAMLESH KUMAR MISHRA, ADVOCATE)
AND
1. THE LAND ACQUISITION REHABILITAION
OFFICER NHDC NO. 8 INDRA SAGAR/
OMKARESHWAR PROJECT KHANDWA, (MADHYA
PRADESH)
2. THE COLLECTOR EAST NIMAD KHANDWA
(MADHYA PRADESH)
3. EXECUTIVE ENGINEER NARMADA VALLEY
DEVELOPMENT DEPARTMENT SUB DIVISION 32
B AD WAHA KHAR GON THR OUGH N H D C NVDA
OFFICE COMPLEX (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI RAJESHWAR RAO, GOVERNMENT ADVOCATE )
T h is petition coming on for admission this day, the court passed the
following:
ORDER
With the consent of the parties, the matter is finally heard.
The present petition has been filed challenging the order dated 29.07.2011
passed by the Third Additional District Judge, Khandwa whereby the application
filed by the petitioner under Section 18 of the Land Acquisition Act, 1894 has been
dismissed in default.
2. It is submitted that the petitioner was the owner of the land in question
and his land has been acquired for the construction of Dam for public purpose of
Indira Sagar Project. A notification under Section 4 of the Act was issued and the
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objections were called under Section 6 (3) of the Act of 1894. The petitioner filed
his objection but the same was not considered. All the proceedings were
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completed and the award was passed and thereafter a notice for intimation of the
Award under Section 12 of the Act of 1894 was issued to the land owners whose
lands were acquired for construction of the dam. As the amount of award was on a
very lower side and was not in accordance with the guidelines, therefore, the
petitioner preferred an application under Section 18 of the Land Acquisition Act,
which was referred as reference before the Court below for proper consideration
of the Award. The reference case was registered as Reference Case No.536/2009.
The learned Trial Court has dismissed the case for want of prosecution on
29.07.2011 and the reason is given that the applicant is not producing evidence in
the case. It is submitted that similar issues came up before this Court for
consideration and the orders have been passed, considering the settled legal
proposition in the case of Khazan Singh (Dead) By Lrs. Vs. Union of India
reported in (2002) 2 SCC 242 wherein it is categorically held that the reference is
required to be answered and the same cannot be dismissed in default. This Court
has also considered the aforesaid judgment passed by the Hon’ble Supreme
Court and has passed various orders in the case of W.P.No.758/15
(Nageenchand Vs. Land Acquisitionl & Rehabilitation Officers & others)
and W.P.No.763/15 (Ishrat Bee Vs. Land Acquisition & Rehabilitation
Officers & others). The petitioner is praying for a similar relief which has been
extended by the aforesaid cases.
3. Per contra, learned counsel appearing for the State has vehemently
opposed the prayer and submitted that the order impugned has been passed in the
year 2011 and the present petition has been filed in the year 2018 without there
being any proper explanation for the delay. It is submitted that the judgment passed
by the Khazan Singh (supra) is of no help to the petitioner as he has not
approached this Court within time. He has prayed for rejection of the petition.
4. Heard the learned counsel for the parties and perused the record.
5. From the perusal of the record, it is seen that with respect to the
acquisition proceedings the final award was passed in the matter and as the amount
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of award is on lower side then an application under Section 18 was preferred and
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the matter was referred to the District Judge in reference. The reference case was
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registered and the same has been dismissed by the impugned order.
6. Counsel appearing for the State has further pointed out that the order
impugned does not only reflect that it is dismissed for want of prosecution rather
the objection filed by the petitioner was also taken into consideration and not
found to be satisfactory, therefore, the reference was rejected, but the fact remains
that the order impugned does not reflect any application of mind by the
Authorities. There is no consideration of any objection filed by the petitioner. No
reasons are assigned while rejecting the reference. The reasons are the heart beats
of the orders or judgments as has been held by the Hon’ble Supreme Court in
the case of Kranti Associates Private Limited and Anr. vs. Masood Ahmed
Khan and others, reported in (2010) 9 SCC 496 wherein the Hon’ble
Supreme Court has held as under :-
“47. Summarizing the above discussion, this Court holds:-
(a) In India the judicial trend has always been to record reasons, even in administrative
decisions, if such decisions affect anyone prejudicially.
(b) A quasi-judicial authority must record reasons in support of its conclusions.
(c) Insistence on recording of reasons is meant to serve the wider principle of justice that
justice must not only be done it must also appear to be done as well.
(d) Recording of reasons also operates as a valid restraint on any possible arbitrary exercise
of judicial and quasi-judicial or even administrative power.
(e) Reasons reassure that discretion has been exercised by the decision maker on relevant
grounds and by disregarding extraneous considerations.
(f) Reasons have virtually become as indispensable a component of a decision making
process as observing principles of natural justice by judicial, quasi-judicial and even by administrative
bodies.
(g) Reasons facilitate the process of judicial review by superior Courts.
(h) The ongoing judicial trend in all countries committed to rule of law and constitutional
governance is in favour of reasoned decisions based on relevant facts. This is virtually the life blood of
judicial decision making justifying the principle that reason is the soul of justice.
(i) Judicial or even quasi-judicial opinions these days can be as different as the judges and
authorities who deliver them. All these decisions serve one common purpose which is to demonstrate
by reason that the relevant factors have been objectively considered. This is important for sustaining the
litigants' faith in the justice delivery system.
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(j) Insistence on reason is a requirement for both judicial accountability and transparency.
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(k) If a Judge or a quasi-judicial authority is not candid enough about his/her decision
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making process then it is impossible to know whether the person deciding is faithful to the doctrine of
precedent or to principles of incrementalism.
(l) Reasons in support of decisions must be cogent, clear and succinct. A pretence of
reasons or `rubber-stamp reasons' is not to be equated with a valid decision making process.
(m) It cannot be doubted that transparency is the sine qua non of restraint on abuse of
judicial powers. Transparency in decision making not only makes the judges and decision makers less
prone to errors but also makes them subject to broader scrutiny. (See David Shapiro in Defence of
Judicial Candor (1987) 100 Harward Law Review 731-737).
(n) Since the requirement to record reasons emanates from the broad doctrine of fairness in
decision making, the said requirement is now virtually a component of human rights and was
considered part of Strasbourg Jurisprudence. See (1994) 19 EHRR 553, at 562 para 29 and Anya vs.
University of Oxford, 2001 EWCA Civ 405, wherein the Court referred to Article 6 of European
Convention of Human Rights which requires,
"adequate and intelligent reasons must be given for judicial decisions".
(o) In all common law jurisdictions judgments play a vital role in setting up precedents for
the future. Therefore, for development of law, requirement of giving reasons for the decision is of the
essence and is virtually a part of "Due Process".
7. In view of the aforesaid judgment passed by the Hon’ble Supreme
Court the order impugned is a non-speaking order and does not reflect application
of mind.
8. From the judgment passed by the Supreme Court in the case of Khazan
Singh (supra) it is apparently clear that the reference cannot be dismissed for want
of prosecution. The Hon’ble Supreme Court has held as under :-
“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 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
concerned party. But non-participation of any party would not confer jurisdiction on the Civil
Court to dismiss the reference for default.â€
9. After going through the aforesaid order of the Court, it is clear that
reference could not be dismissed for want of prosecution.
10. It is seen from the record that the petitioner could have very well filed
an application for restoration of the reference under Order Rule 9 of C.P.C. read
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with Section 151 of C.P.C., as the same was held to be maintainable, in view of the
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judgment passed in the case of Jogi Sahu Vs. Collector reported in AIR 1991
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Orissa 283. This Court in the case of Abdul Karim Vs. State of M.P. reported
in AIR 1964 MP 1 has also considered the similar controversy and has held that
non-participation of any party could not confer jurisdiction on the Civil Court to
dismiss the reference for default.
11. As far as delay in filing the present petition is concerned, in the case of
Khazan Singh (supra), the petition was filed with a considerable delay before this
Court and the same was entertained and it was held that reference cannot be
dismissed for want of prosecution. In para 4 of the writ petition, it is submitted that
no information was sent to the petitioner by his counsel that the case has been
dismissed for want of prosecution and the petitioner was having no knowledge
about the same. As far as delay in filing the writ petition is concerned, it is settled
that for fault of counsel party should not suffer as has been held by the
Hon’ble Supreme Court in the case of M.K. Prasad Vs. P. Arumugam, AIR
2001 SC 2497, Dindayal Bansal Vs. Gwalior Nagar Tatha Gram Vikas
Pradhikaran, 2007 (5) MPHT 470, Rafiq and Another Vs. Munshilal and
Another AIR 1981 SC 1400. It is argued that it was the duty of the Reference
Court to decide the reference on merits that is not being done in the present case.
12. In such circumstances and in view of the settled legal proposition of
law that a reference cannot be dismissed for want of prosecution, the order
impugned is unsustainable and is hereby set aside/quashed. The matter is
remanded back to the District Judge for reconsideration of the reference case. It is
directed that the reference should be decided on merits.
13. With the aforesaid observations, this petition is disposed of.
(VISHAL MISHRA)
JUDGE
Prar
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