Holding

An application under Order 9 Rule 9 read with Section 151 CPC is the proper remedy to set aside the ex‑parte order, and the award is a decree, so the Supreme Court allowed the appeal.

Summary

The appellant's land was acquired and a compensation award of Rs.1,000 per acre was made. He applied for a reference under Section 18 of the Land Acquisition Act, 1894, but the court’s notice was not properly served; the notice was allegedly served on a deceased father. The reference court dismissed the case ex‑parte for default and made a nil award. The appellant filed an application under Order 9 Rule 13 CPC, which the civil judge treated as an application under Order 9 Rule 9 read with Section 151 CPC and set aside the ex‑parte order. The High Court reversed, holding that only an appeal under Section 54 of the Act was permissible. The Supreme Court held that the CPC provisions apply to proceedings under the Act, that the court has a duty to serve notice, that the award is a decree, and that the proper remedy is an application under Order 9 Rule 9 with Section 151 CPC. Consequently, the ex‑parte order was set aside and the appeal was allowed.

Issues considered

Whether an application under Order 9 Rule 13 CPC (or Order 9 Rule 9 read with Section 151 CPC) is the correct remedy to set aside an ex‑parte dismissal when notice under the Land Acquisition Act was not properly served.
Whether the provisions of the Code of Civil Procedure apply to proceedings under the Land Acquisition Act, 1894.
Whether the award made by the reference court constitutes a decree within the meaning of the CPC.
Whether the only remedy available to the appellant is an appeal under Section 54 of the Land Acquisition Act.

Legislation cited

Amendment Act 68 of 1984
Code of Civil Procedure, 1908s. Order 9 Rule 13, s. Order 9 Rule 9, s. Section 151
Land Acquisition Act, 1894s. 18, s. 19, s. 20, s. 22, s. 26(2), s. 53, s. 54

Subjects

Land acquisitionNotice of serviceEx‑parte dismissalCPC Order 9Section 151 CPCAward as decreeSection 54 appealReference under Section 18

Judgment

RAJ MANI A
v.
THE COLLECTOR, RAIPUR

JULY 25, 1996

[K. RAMASWAMY AND G.B. PATTANAIK, J.1.] B

Land Acquisitio11 Ac~ 1894:

Ss. 18, 20 a11d 26(2)-Referenc~Ex parte order passed by reference
Court dismissing the refcre11ce for default of claimant-Application by C
claimant under Order 9 Rule 13 CPC for setting aside ex parte order on the
ground that he was not se/ved with the notic~Held, se1vice of notice was
not duly effected on the claimant-It should be the duty of the court to have
the notice se1ved-An applicatio11 under Order 9 Rule 9 read withs. 151 CPC
is the proper remedy a11d procedure-Claimant lightly filed the application,
though u11der Order 9 Rule 13, but it could be treated as one under Order 9 D
Rule 9 read with s.151 CPC-Additio11al Distlict Judge 1ightly enteitained the
application a11d set aside the ex pmte order.

Code of Civil Procedi1re, 1908 :

Order 9, Rule 9 R/W s.151-Refere11ce u11der s. 18 of Land Acquisition E
Act, 1894 dismissed for default of c/aimant~laima11t alleging non service of
notic~emedyHeld, an application under Order 9 Rule 9 read withs. 151
is the proper remedy and procedure.

Practice and Procedure :
F
Refere11ce under s. 18 of Land Acquisition Ac~ 1894 dismissed for
default of claimant~laimant alleging non-service of notic~Remedy-Held
an application under Order 9 Rule 9 read with s. 151 CPC is thr proper
re111edy and procedure.

- Deep Chand and Ors. v. La11d Acquisition Officer & Ors., (1994] 4
SCC 99; State of Mizoram v, Biakclthawna, [1995] 1 SCC 156 and State of
G

Maharashtra v. M.S. Hatkw; (1995] 3 SCC 316, held inapplicable.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1885 of
1981. I-I
59
60 SUPREME COURT REPORTS [1996] SUPP. 4S.C.R.

A From the Judgment and Order dated 29.6.79 of the Madhya Pradesh
High Court in C.R. No. 1055 of 1978.

C.L. Sahu for the Appellant.

Sakesh Kumar, S.K. Agnihotri for the Respondent.
B
The following order of the Court was delivered.

This appeal. by special leave arises from the order passed by the
learned single Judge of the Madhya Pradesh High Court on June 29, 1979
in C.R. No. 439 of 1977. The admitted facts are that the lands of the
c appellant came to be acquired for a public purpose. The Land Acquisition
Officer made his award dated November 15, 1973 awarding compensation
@ Rs. 1,000 per acre. Dissatisfied therewith, the respondent made an
application on April 29, 1974 for reference under Section 18. In fur-
therance thereof, a reference came to be filed in the Court of the Addi-
D tional District Judge, Raipur. The District Judge found the statement as
required under Section 19 of the Land Acquisition Act, 1894 (for short,
the "Act"). On July 1, 1975, he directed issuance of notice to the appellant.
ll came lo be adjourned from lime to time for service on the appellant.
Ultimately, on February 2, 1976 in the proceed;ngs of the Court the notice
was stated lo have been served on the appellant but no date thereon was
E put nor was it signed by the witnesses. Accordingly, by proceedings dated
February 10, 1976 the reference Court passed order, after setting him
ex-parle dismissing the reference for default and nil award. As against the
order the appellant filed an application under Order 9, Rule 13, CPC. The
civil Judge allowed the application and set aside the order against which
F the State went in revision. The learned single Judge in the impugned order
has held that the application for restoration does not lie. The only remedy
open to the appellant was to file an appeal under Section 54 of the Act to
the High Court. Thus this appeal by special leave.

The question is : whether the view taken by the High Court is correct
G in law ? It is contended by Shri Sahu, learned counsel for the appellanll,
that the appellant had not been served with the notice. As as consequence,
when he came to know of the award made by the reference Court confirm-
ing the award of the Land Acquisition Officer within three days, he filed
an application under Order 9, Rule 13, CPC to set aside the ex-parte order
H and restoration of the case so as lo get an opportunity of being heard. The
RAIMANI v_ COLLECTOR 61

Additional District Judge rightly set aside the order. The view of the High A
Court was not correct in law. Shri Agnihotri, learned counsel appearing
for the State contended that the order of the reference Court is not correct
in law. It was not an award of the court. In other words, every award is not
a decree and, therefore, the provisions of the CPC do not apply to the
given set of facts. The appellant is not a defendant. Therefore, Order 9,
B
Rule 13 does not apply since reference Court is not a civil Court. Section
151 also does not apply. Therefore, the view taken by the High Court is
correct in law. In support thereof, he places strong reliance on the judg-
ments of this Court in Deep Chand & Ors. v. Land Acquisition Officer &
010-., [1994] 4 SCC 99 and State of Mizoram v. Biakchltawna, [1995] 1 SCC
156. c
With a vie\v to appreciate the respective contentions, it is necessary
to read relevant provisions of the Act. Section 53 of the Act envisages that
"(s)ave in so far as they may be inconsistent \vith anything contained in this
Act, the provisions of the C.P.C. shall apply to all proceedings before the D
Court under this Act''. It would thus be clear that so long as there is no
inconsistency between the provisions of the Act and the C.P.C., all the
provisions contained in C.P.C. shall apply to the proceedings under the
Act. "Court" has been defined in Section 2(d) of the Act to mean "a
principal Civil Court of original jurisdiction unless the appropriate Gover-
ment has appointed a special judicial officer within any specified local E
limits to perform the functions of the Court under this Act''. When refer-
ence was made under Scction 18, it should be to the principal Civil Court
of original jurisdiction or special judicial officer within any specified local
limits to perform the functions of the Court. Section 19 envisages that upon
an application made under Section 18 in the manner prescribed there- F
under, the Collector should make reference to the Court with all the
information in writing, as indicated in sub-section (1) of Section 19. The
said statement shall be attached with a schedule giving the particulars of
the notices served upon and of the statements in writing made or delivered
by, the parties interested therein respectively. On receipt thereof, Section
20 enjoins the court the service of the notice with a mandatory language. G
The Court shall thereupon, cause notice served upon the persons named
in the reference including the Land Acquisition Officer/Collector, as indi-
cated in clauses (a) to (c) of Section 20 giving and specifying the day on
which the Court will proceed to determine the objection and direct the
parties to appear before the Court on that day. In other words, it is the H
62 SUPREME COURT REPORTS [1996] SUPP. 4 S.C.R.

A mandatory duty of the Court to have the notices served on the persons;
viz., the applicant or all persons interested in the objection filed before the
Land Acquisition Collector, except if any of them gives consent when
produced to receive payment of the compensation awarded and in case of
objection relating to the area or the amount of land acquired or the amount
of the compensation upon the Collector Land Acquisition Officer. Upon the
B receipt and after service of the notice, Section 22 envisages that every
proceedings shall take place in the open Court and all persons entitled to
practise in any civil Court in a State shall be entitled to appear, plead and
act in such proceedings. It would thus be clear that upon an application
made under Section 18 of the Act the Land Acquisition Officer/Collector,
c when he receives the application within the limitation prescribed under the
Act, is enjoined to make a reference, as above mentioned in Section 19.
Upon receipt of those applications, the Court should cause the
notices/notice served on the applicants, as well as all interested persons
and Land Acquisition Officer/Collector. The notice required to be served
as is envisaged in Order 5 of the CPC and the manner of service has been
D
indicated thereunder. Therefore, it should be the duty of the Court to have
the notice served. It is seen that the notice was not properly served on the
applicant. It would appear that notice was served on the father of the
Appellant, Brij Mohan Lal who is now found to have died on December
20, 1973, i.e., much before the date of the alleged service. It would,
E therefore, be clear that the service of notice has not been duly effected on
the appellant. As a consequence, he did not have any occasion to appear
before the Court.

The question then is : whether the application would be under Order
F 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 persons, he is treated to be a plai,1tiff 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 repre-
G sented 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 possessed of
higher value for award of the compensation to be just and adequate
H compensation. The Land Acquisition Officer is to rebut the evidence
IWMANI v. COLLECTOR 63

adduced by the claimant/interested person. The burden is always on the A
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 arm
chair 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
B
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 c
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 provisions 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 D
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.

The ratio of Deep Chand's case has no application to the facts of this E
Case. In that case the question was : whether an order passed by the

-
..
Collector under Section 49(1) of the Act is an award and whether it is
appealable ? It was held to be neither a decree nor an award as no
adjudication was involved in the order passed under Section 49(1) and,
therefore, no appeal would lie under Section 96 of the C.P.C. or Section F
54 of the Act. Equally, the ratio of Biakchhawna's case (supra) has no
application to the facts of this case. Therein, without seeking reference
under Section 18 and the procedure ta be fallowed under Sections 18 ta 20
and 31, civil suit came to he filed for determination of the compensation

- for the acquired land. It was held that civil suit was not maintainable in
view of the inconsistency found in the Act, viz., determination of the
compensation on reference and an appeal thereunder to the civil court
under Section 54. Thus, the above two decisions are of little assistance to
G

the State. The ratio of State of Maharashtra v. M.S. Hatkar, [1995] 3 SCC
316 also has no application to the facts in this case. Therein, after the
decree and award passed under Section 26 became final an application H
64 SUPREME COURT REPORTS 11996] SUPP. 4 S.C.R.
'
A under Sections 152 and 151 CPC came to be filed, after the coming into
force of the Amendment Act 68 of 1984, to amend the decree and to grant
additional amounts, as enjoined under Sections 23(2), 28 and 23(1-A) of
the Act. Therein, it was held that after the decree becomes final, unless
the decree is duly amended in accordance with law, the civil court has no
jurisdiction lo amend the decree and pass additional amount under the
B Amendment Act.

Accordingly, we hold that an application under Order 9, Rule 9 read
with Section 151, CPC io the proper remedy and procedure. The Addition-
al District Judge has rightly entertained, the application setting aside the
c ex-pwte order.

The appeal is accordingly allowed. The order of the High Court
stands set aside and that of the civil court stands restored. No costs.

R.P. Appeal allowed.