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2018 Supreme(Kar) 409
IN THE HIGH COURT OF KARNATAKA AT DHARWAD BENCH
B. VEERAPPA, H.T. NARENDRA PRASAD, JJ.
Sri. Bimal S/o. Kantilal Mehata – Appellant
Vs.
The Assistant Commissioner and Land Acquistion Officer, Dahrwad and Ors. – Respondents
Writ Appeal No. 100295 of 2018
Decided On : 10-09-2018
For the Appellant : Sri. A.S. Patil
For the Respondents: Sri. Ravi V. Hosamani, Sri. Chetan T. Limbikai, Sri Ajay U. Patil
Headnote:
Land Acquisition Act, 1894 - Section 4(1), 17(4), 18(1), 18, 20 and 26 - Constitution of India, 1950 - Section 226 and 227 - High Courts Act, 1861 - Section 15 - Government of India Act, 1935 - Section 224 and 224(2) - Government of India Act, 1915 - Section 107 - Land - Land Acquisition Officer - Compensation - Whether petitioner/appellant has made out a case to interfere with order passed by learned Single Judge dismissing writ petition and confirming order passed by Senior Civil Judge closing case in facts and circumstances of present case - Whether it is proper that party should suffer for inaction, deliberate omission, or misdemeanour of his agent - Whether requisite findings had been entered by Additional District Judge on both those aspects - Whether there was a clear finding that plaintiff was forcibly dispossessed as alleged by him - Whether finding on possession was rendered based on a discussion of available evidence - Whether directions in order of remand had been complied - Whether order of interim mandatory injunction was supported by necessary findings - Whether his objection be to measurement of land, amount of compensation, person to whom it is payable, or apportionment of compensation among persons interested – Held, Failure to render necessary findings to support its order would also be a jurisdictional error liable to correction - Here jurisdiction to grant an interim mandatory injunction could be exercised on entering a finding that on day order for maintaining status quo was passed, plaintiff was in possession and a day after interim order was passed, he was in fact dispossessed - Interim direction to maintain status quo was an ex parte order - From order of Additional District court it is not possible to come to conclusion that on a proper advertence to relevant materials, prima facie clear findings had been rendered by that court on these aspects - Possession will be restored to them through court - But considering questions to be decided in suit, Court direct defendants, once they are put in possession of premises in restitution, not to create any third party interest in respect of plaint schedule building pending disposal of suit - It is well settled that against award passed by Land Acquisition Officer, aggrieved party has to file an application under Section 18(1) of Act for reference and ultimately it is for reference Court to pass an award in answer to reference - Non-participation by any party would not confer jurisdiction on Civil Court to dismiss reference for default - Provisions above subsumed would thus make it clear that Civil Court has to pass an award in answer to reference made by Collector under Section 18 of Act - If any party to whom notice has been served by Civil Court did not participate in inquiry it would only be at his risk because an award would be passed perhaps to detriment of party concerned - But non-participation of any party would not confer jurisdiction on Civil Court to dismiss reference for default - In view of aforesaid reasons, impugned order passed by learned Single Judge dismissing petition on ground that petitioner has not made out good ground to continue to grant chances, confirming order passed by learned Senior Civil Judge and JMFC, Hubballi, closing case, cannot be sustained - For reasons stated above, issue raised in appeal has to be answered in affirmative holding that appellant has made out case to interfere with impugned order passed by learned Single Judge confirming order passed by learned Senior Civil Judge, closing case – Appeal allowed.
The appellant, who is the unfortunate land loser, has preferred the present appeal against the order dated 20.05.2018 made in W.P.No.101731/2018 by the learned Single Judge of this Court, dismissing the writ petition holding that the petitioner has not made out any good ground to continue to grant chances, when he has chosen to remain absent on various dates.
I. FACTS OF THE CASE :
2. It is the case of the appellant/petitioner that he is the absolute owner of the land bearing Survey No. 21/1 measuring 2 acre 25 guntas situated at Bengeri village, Hubli Taluk, Dharwad District. On 28.10.2010, the Land Acquisition Officer acquired the said land invoking urgency clause under the provisions of Section 4(1) read with Section 17(4) of the Land Acquisition Act (hereinafter referred to as “the Act” for short) for the purpose of Hubli-Hospete and Hubli-Londa bypass line. The appellant has not challenged the acquisition proceedings. The possession of the land of the appellant was taken even prior to passing of the award i.e. on 21.07.2011. Subsequently, the Land Acquisition Officer passed award on 29.01.2013 made in LAQ-SR/H/06/2010-11 awarding compensation of Rs.13,384/-per gunta, in total Rs.22,35,175/-for 2 acres 25 guntas.
II. LAND ACQUISITION PROCEEDINGS BEFORE LEARNED CIVIL JUDGE:-
3. The appellant, being dissatisfied with the meager amount of compensation awarded by the Land Acquisition Officer, filed an application before the Assistant Commissioner under Section 18(1) of the Act seeking enhancement. On the reference made by the Land Acquisition Officer, the learned Senior Civil Judge and JMFC, Hubballi has numbered it as LAC No. 132/2014. The 2nd respondent/Union of India, represented by the Senior Divisional Engineer, South-Western Railways, filed objections on 10.01.2017 before the reference Court denying all the contentions and sought for rejection. The matter was posted for petitioner’s evidence. Unfortunately, the counsel for the petitioner/appellant therein has not proceeded with the matter to lead evidence. When the matter was posted finally on 28.11.2017, the case was called out, the claimant and his advocate remained absent before the Court and the learned Senior Civil Judge passed an order confirming the order passed by the learned SLAO for the reason that the matter is very old, no reason to grant time and petition came to be closed. Virtually, the petition came to be closed for default.
III. WRIT PROCEEDINGS:-
4. Being aggrieved by the said order, writ petition under Section 226 and 227 of the Constitution of India came to be filed before the learned Single Judge in W.P.No.101731/2018 seeking to quash the order dated 28.11.2017, passed by the learned Senior Civil Judge and JMFC, Hubballi. The learned Single Judge of this Court has dismissed the petition mainly on the ground that the order sheet maintained by the learned Senior Civil Judge clearly indicates that the petitioner was not interested to prosecute the case and remained absent on various dates and no good ground to continue to grant chances, when he was chosen to remain absent on various dates. Against the said order dated 20.03.2018 passed by the learned Single Judge in W.P.No.101731/2018, the present appeal is filed.
IV. ARGUMENTS ADVANCED BY THE LEARNED COUNSEL FOR THE PARTIES:-
5. We have heard the learned counsel for the parties to the lis.
6. Sri. A.S. Patil, the learned counsel for the appellant vehemently contended that the impugned order passed by the learned Single Judge of this Court dismissing the writ petition mainly on the ground that the petitioner/appellant has not shown any interest to proceed with the case is erroneous and contrary to the law. He further contended that the learned Single Judge ought to have allowed the writ petition and ought to have provided an opportunity to the appellant/petitioner, who is a land loser, whose lands have been acquired by the State for the purpose of formation of Hubli-Hospete and Hubli-Londa bypass line,
