The Order cannot be said to have been passed on merits in absence of claimants and therefore, it shall be treated as an ex parte order as per Order 17 Rule 2 of the Code, 1908 and as such Order 9 Rule 9 r/w Section 151 of the Code, 1908 seeking to restore the L.A.O.P. is applicable

The Order cannot be said to have been passed on merits in absence of claimants and therefore, it shall be treated as an ex parte order as per Order 17 Rule 2 of the Code, 1908 and as such Order 9 Rule 9 r/w Section 151 of the Code, 1908 seeking to restore the L.A.O.P. is applicable

VJP, J

C.M.A.No.1207 of 2008

1

 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

***

C.M.A. No.1207 of 2008

Between:

Polamreddy Venkata Ramana Reddy and another

 …. Petitioners

 And

Special Deputy Collector-cum-Land Acquisition

Officer, Telugu Ganja Project, Nellore.

….Respondent.

Date of Order pronounced on : 20.02.2023

HON’BLE SMT. JUSTICE VENKATA JYOTHIRMAI PRATAPA

1. Whether Reporters of Local newspapers : Yes/No

 may be allowed to see the judgments?

2.Whether the copies of judgment may be marked: Yes/No

to Law Reporters/Journals:

3.Whether the Lordship wishes to see the fair copy : Yes/No

 of the Judgment?

_______________________________________

 VENKATA JYOTHIRMAI PRATAPA, J

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C.M.A.No.1207 of 2008

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*HON’BLE SMT. JUSTICE VENKATA JYOTHIRMAI PRATAPA

+ C.M.A No.1207 of 2008

% 20.02.2023

# Polamreddy Venkata Ramana Reddy and another

 …. Petitioner

 And

$ Special Deputy Collector-cum-Land Acquisition

Officer, Telugu Ganja Project, Nellore.

….Respondent.

! Counsel for the Petitioners : Sri P. Sridhar Reddy,

Counsel for the Respondents: G.P. for Land Acquisition.

<Gist :

>Head Note:

? Cases referred:

1) (2002) 2 SCC 242

2) AIR 1991 NOC 98

3) 2015 (5) ALL MR 690

4) (1996) 5 SCC 701

5) AIR 1991 Ori 283

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C.M.A.No.1207 of 2008

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HON’BLE SMT. JUSTICE VENKATA JYOTHIRMAI PRATAPA

C.M.A.No.1207 of 2008

JUDGMENT:-

1. Claimants Nos.,6 and 7 in L.A.O.P.No.57 of 1990 moved

the instant Civil Miscellaneous Appeal under Order 43 Rule 1 of

Civil Procedure Code, 1908 (for brevity ‘the Code, 1908’)

impugning the Order dated 13.08.2004 in I.A.No.14 of 1998 on

the file of the learned Senior Civil Judge, Gudur, filed under Order

9 Rule 9 r/w Section 151 of the Code, 1908 seeking to restore the

L.A.O.P. to file.

2. Heard the submissions of Sri P. Sridhar Reddy, learned

counsel for the Appellants/Claimant Nos.,6 and 7 and the learned

Government Pleader appearing for the respondent. Perused the

material on record.

3. Bereft of unnecessary details, the facts leading to

preferring this appeal in brief are as follows:

3.1. The lands of the Appellants/Claimant Nos.,6 and 7

were acquired by the Government for the purpose of Kandalaru

Reservoir under Telugu Ganga Project at Tamancherla Village.

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C.M.A.No.1207 of 2008

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3.2. The claimants received the compensation amount

under protest.

3.3. Thereupon, the Special Collector, Land Acquisition,

made a reference of the matter to the Court under Section 18

of the Land Acquisition Act (for brevity ‘the Act’) which

culminated into L.A.O.P.No.57 of 1990 on the file of learned

Senior Civil Judge, Gudur (hereinafter referred ‘Reference

Court’).

3.4. Notices were issued to the claimants. Though the

claimants appeared through an Advocate before the Reference

Court, they failed to file the claim petition.

3.5. After hearing the learned Government Pleader, the

learned Judge answered the reference by forfeiting the right of

the claimants to file their claim petition.

3.6. Thereafter, the Claimants Nos., 6 and 7 filed I.A.No.

14 of 1998 under Order 9 Rule 9 r/w 151 of the Code, 1908

seeking to set aside the ex parte Order passed against the

claimants dated 28.01.1997 and to permit them to file their

claim statements to contest the petition by restoring the O.P.

3.7. While so, the learned Government Pleader reported

no Counter on the said I.A.

4. Enquiry-finding:

4.1. The Claimant No.6 was examined as PW.1.

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4.2. The learned Judge dismissed I.A.No.14 of 1998

stating that the Court answered the reference on merits after

hearing the learned Assistant Government Pleader and as the

matter was disposed of on merits, the petition under Order 9

Rule 9 of the Code, 1908, is not maintainable, advised the

claimants to prefer an appeal against the said Orders.

Grounds of Appeal:

5. Aggrieved by the impugned Order, the Claimant Nos., 6

and 7 approached this Court on the grounds that:

5.1. The claimants on acquisition of their land by the

Government, have settled down at various places,

consequently, they could not contact their counsel to

prosecute proceedings.

5.2. They were paid meager compensation by the

Government.

5.3. The Order cannot be said to have been passed on

merits in absence of claimants and therefore, it shall be

treated as an ex parte order as per Order 17 Rule 2 of the

Code, 1908.

5.4. No prejudice would be caused to the Government if

the petition is restored and disposed of on merits.

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5.5. The reference Court shall have to dispose of the

matter on merits and;

5.6. The Hon’ble Apex Court observed that the Courts

should not have hyper technical approach while dealing with

applications to set aside the ex parte orders and liberal

approach should be adopted.

Arguments advanced at the Bar

6. Learned counsel for the Claimant Nos., 6 and 7 in

elaboration to what has been stated in the grounds of appeal

would contend that the learned reference Judge cannot pass any

order on merits in the absence of the party and contra pleadings

and that the Reference court had erroneously dismissed the

application for restoration of the petition to its original number,

despite the Government reported no counter.

7. Per contra, the learned Government Pleader appearing for

the respondent would submit that the appeal is devoid of merits

and that the Appellants/Claimant Nos. 6 and 7 kept silent for 6

years without filing their claim statements during the pendency of

O.P. and made the court to forfeit their right to file the same.

Immediately after disposal of the matter, the claimants

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approached the Reference Court by filing the restoration petition

to drag on the matter. As such, the learned counsel contended

that the learned Reference Judge was right in dismissing the I.A.

holding that the reference order was passed on merits and

advised the parties to file an appeal against such order.

Point for Determination:

8. In the light of rival submissions, the point that would

emerge for determination is:

Whether the Order impugned is tenable under law or any

interference is warranted while sitting in the appeal?

Analysis & Finding:

9. There is no dispute about the fact that the lands of the

claimants along with others were acquired by the Government for

foreshore submersion of Kandaleru Reservoir under Telugu

Ganga Project situated at Tanamcherla Village. After making a

draft notification and enquiry, the respondent herein i.e., the

Special Deputy Collector, passed an Award No.133/89-90, dated

12.02.1990. It is also an admitted fact that the claimants herein

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C.M.A.No.1207 of 2008

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received compensation under protest stating that the market

value fixed by the Land Acquisition Officer is not just and

reasonable. They filed applications to that effect to refer the

matter to the Civil Court under Section 18 of the Land Acquisition

Act for fixation of fair market value, which got numbered as

L.A.No.57 of 90 on the file of the Senior Civil Judge, Gudur, on

23.04.1990.

10. The record further shows the notices were served on

the claimants. The claimants entered their appearance through

Advocate. It is also a fact that though the matter was adjourned

from time to time, the Claimant Nos. 6 and 7 did not choose to

file their Statements. While things stood thus, the learned Judged

heard the arguments of the learned Assistant Government

Pleader on 20.12.1996 and pronounced Judgment confirming the

Award passed by the Land Acquisition Officer vide Judgment

dated 20.01.1997. The claimants herein after knowing the

disposal of the said L.A.O.P.No.57/1990 in their absence

approached the Court by filing a petition for restoration of the

main petition and to permit them to pursue the matter by

contesting the main petition.

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11. The relevant extract from the order of the learned

Reference court Dt:13.08.2004 dismissing the I.A., is reproduced

hereinunder:

“But in the present case that the orders passed on merits on

20.01.1997. So, the above said decision is no way relevant

or identical to the facts of the present case. In this case the

claimants are not set ex parte and the reference was not

dismissed for default. But, it was passed on merits on

hearing the learned Assistant Government Pleader for

the Referring Officer and the matter was disposed of

on merits. Hence that this petition is not maintainable under

law and at best petitioners/ claimants can be advised to

prefer an appeal against the said Orders. Hence, these

petitions are liable to be dismissed.”

12. Now, it is pertinent to look into the Order Dt:20.01.1997,

which as referred by the learned reference Judge supra, was

passed on merits. The same reads as follows:

“This clearly goes to show that the Claimants 6 to 12 have no

interest to prosecute the OP, no useful purpose will be served

by keeping the OP pending years together. Hence, there is

no other go for this Court except to confirm the Award

passed by the Land Acquisition Officer.

In the result, the Award passed by the Land

Acquisition Officer in respect of claimants 6 to 12 is

confirmed. The claimants 1 to 5 have settled their claims

through compromise. The reference is answered accordingly.”

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13. It is indiscernible that taking inference from the

fact that the Claimant Nos.,6 and 7 did not choose to file their

Statements, the learned Reference Judge opined that it is of no

useful purpose to keep the O.P. pending and as such there

exists no other option except to confirm the Award as originally

passed by the Land Acquisition Officer with respect to Claimant

Nos., 6 to 12, since the other Claimants have settled their

claim through compromise before the Lok Adalat.

14. Needless to say, for passing any order on merits, the

contentious pleadings of both parties are necessary. The

claimants in the reference under Section 18 of the Land

Acquisition Act are in the status of the plaintiffs as the burden is

on the claimants to prove that the Land Acquisition Officer has not

considered the correct market value for fixing the compensation.

If they fail to establish the same, the petition has to be dismissed.

If the claimants succeed in their attempts to demonstrate that the

Land Acquisition Officer is not fair in fixing the compensation as

per the market value as on the date of notification in that locality,

the Court has to consider and enhance the compensation.

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15. Here, the learned reference Judge while dismissing

the I.A. opined that he disposed of the case on merits, and that

the petition itself is not maintainable and has advised the parties

to approach the Appellate Court against such order. The Order

impugned itself shows the claimants failed to submit their claim

statements, evidence much less any document. Apart from that,

the counsel did not advance any arguments on behalf of the

claimants. The impugned Order is also vivid on the point that after

hearing the learned Assistant Government Pleader, the Court

disposed of the matter. The learned Reference Judge also

expressed his displeasure in disposing of the matter without any

discretion stating that no option is left to him except to confirm

the Award.

16. It is trite to observe that when once a reference is

made under Section 18 of the Land Acquisition Act, 1894, the

reference Court is bound to issue notice to all the persons

interested in the reference and proceed to determine the

reference under Section 20 even if the person at whose instance

the reference is made, fails to appear before the reference Court

or fails to produce evidence in support of their plan.

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17. In Khazan Singh (dead) by L.Rs v. Union of

India1

, the Hon’ble Apex Court has observed that the nonparticipation of a party would not confer jurisdiction on the

reference Court to dismiss the reference for default and it is

impermissible to do the same. Further, in Mangeelal v State of

Madhya Pradesh2

it was held that in a reference made under

Section 18, an award has to be made under Section 26 even in

case of non-appearance and non-production of evidence in

support of petition by the referring party.

18. It is profitable to refer the decision of a Coordinate

Bench of Hon’ble Bombay High Court in Arvind Vyankatrao

Tarar v. State of Maharashtra3

, which fit in the factual matrix

of the case on hand. It is a matter where an application for

restoration of reference was rejected as not maintainable on the

ground that the reference was supposedly decided on merits after

deciding all issues holding that the applicant and his counsel are

absent and as such no evidence was let to substantiate their

claim.

1

(2002) 2 SCC 242

2 AIR 1991 NOC 98

3 2015 (5) ALL MR 690

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19. The contention of the claimant/petitioner in Arvind

(supra) was that the court cannot decide a reference in the

absence and the only option left for the court should have been to

dismiss the reference for default. On the point of maintainability

of the petition filed under Order IX Rule 9 C.P.C., reliance was

placed by the petitioner in Arvind (supra) on the decision of the

Hon’ble Apex Court in Rajmani v. Collector, Raipur4

, wherein

it was observed by their Lordships at para 4 as follows;

“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 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

4

(1996) 5 SCC 701

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C.M.A.No.1207 of 2008

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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".

(Emphasis supplied)

20. Accepting the contention of the petitioner, the

Hon’ble Bombay High Court held that the trial court committed a

serious error in dismissing the application as not maintainable

instead of deciding the same on merits. In Jogi Sahu v.

Collector,

5 Hon’ble High Court of Orrisa held that an application

for restoration of reference can be entertained under Section 151

of Code even when the same was filed by quoting Order 9 Rule 9.

21. Similarly, in the present matter on hand, prima facie,

the words employed by the learned reference Judge and the

manner in which the matter was disposed of itself clearly indicate

5 AIR 1991 Ori 283

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C.M.A.No.1207 of 2008

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that it was a disposal of the matter otherwise but not on merits.

Such being the case, dismissing of a petition on the point of

lethargic attitude of the party is different from that of dismissing a

petition saying that it is not maintainable. Learned Judge advising

the parties to approach the Appellate Court saying that petition is

not maintainable is not tenable under law. Nevertheless, the order

impugned reveals that the learned Assistant Government Pleader

reported no counter on that petition.

22. The Order impugned clearly manifest non-application

of mind to the contents of the Award passed by the Land

Acquisition Officer. No whisper is made about the market value of

the sale deeds considered as on the date of the notification and

possession much less any other sales in the vicinity during the

relevant period to scrutinize the sustainability of the Award under

law. Though the learned Judge labelled the Order impugned as

passed on merits and addressed the parties to tap in appeal

remedies, it is purely a technical disposal of a case but not an

order in the eye of law.

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23. Under these circumstances, it is apposite to set aside

the impugned Order and remit the matter to the reference Court

with a direction to give an opportunity to the claimants as well as

the Land Acquisition Officer to adduce evidence in the case and

then to determine the compensation according to law. It is further

clarified that this Court has not expressed any opinion about the

merits of the L.A.O.P., which shall be decided strictly based on the

evidence that may be led by the parties in accordance with law.

24. This Civil Miscellaneous Appeal is accordingly allowed,

but, in the circumstances, the parties are directed to bear their

own costs.

Miscellaneous petitions pending, if any, shall stand closed.

VENKATA JYOTHIRMAI PRATAPA, J

Date : 20.02.2023

eha

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HON’BLE SMT. JUSTICE VENKATA JYOTHIRMAI PRATAPA

C.M.A.No.1207 of 2008

Date :20.02.2023

eha

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