The High Court
Case Details
Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 11-Mar-2024 14:22:35 IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C).NO.41720 OF 2023 Muralidhar Naik @ Banjara …. Petitioner Mr. Krushna Chandra Dash, Advocate -versus- Special Land Acquisition Officer, Nuapada …. Opp. Party Mr. Swayambhu Mishra, Additional Standing Counsel Order No. 03. 1. 2. CORAM:
Decision
JUSTICE K.R. MOHAPATRA ORDER 06.03.2024 This matter is taken up through hybrid mode. Order dated 10th April, 2023 (Annexure-1) passed by learned Senior Civil Judge, Nuapada in CMA No.02 of 2020 is under challenge in this writ petition, whereby an application to restore L.A.R. Case No.188 of 2010 filed under Section 18 of the Land Acquisition Act, 1894 (For brevity ‘the Act’) has been rejected. 3. Mr. Dash, learned counsel for the Petitioner submits that L.A.R. Case No.188 of 2010 was initiated on an application filed by the predecessors of the Petitioner under Section 18 of the Act for enhancement of the compensation awarded under Section 11 of the Act. In due course, the matter was taken up on 28th January, 2014. On the said date, learned counsel appearing for the Petitioner filed an application for adjournment to adduce evidence in the matter. Learned Civil Judge (Senior Division), Nuapada holding that sufficient opportunities were given to the grandfather of the Petitioner, who was the applicant in the petition under Section 18 of the Act to adduce evidence, rejected the petition for adjournment Page 1 of 5 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 11-Mar-2024 14:22:35 // 2 // and directed learned counsel to come ready to adduce evidence of the applicant. In the second hour, none appeared on behalf of the applicant. Hence, reference was closed and returned to the Land Acquisition Officer. As the grandfather of the Petitioner and father of the Petitioner were suffering during the relevant period and were bed ridden, they could not appear to adduce evidence in the matter. Soon thereafter, both of them died one after another. Thus, the Petitioner could not know about the order passed in the reference. Higher compensation has been awarded in respect of the similar nature of land as that of the Petitioner. Hence, an application in CMA No.02 of 2020 was filed to restore the reference and to afford opportunity to the Petitioner to adduce evidence in the matter. The said application was rejected vide order under Annexure-1. Hence, this writ petition has been filed. 4. Mr. Dash, learned counsel for the Petitioner relied upon the order dated 9th August, 2023 passed in W.P.(C). No.25020 of 2023 stating that in similar situation, this Court set aside the order passed in CMA (filed under Section 18 of the Act) directed learned referral Court to adjudicate the reference in accordance with law. He, therefore, submits that the Petitioner should be treated equally. He also relied upon the decision in the case of Khazan Singh (Dead) by LRs, vrs. Union of India, reported in (2002) 1 SCR 431 and submits that a reference under Section 18 of the Act cannot be dismissed for default. In the instant case, the reference was closed due to default of the applicant, namely, the grandfather of the Petitioner. Such a procedure was not approved by Hon’ble Supreme Court. Hence, he prays for setting aside the impugned order dated 10th April, 2023 (Annexure-1) and order dated 21st January, 2014 (Annexure-3) passed in L.A.R. Case No.188 of 2010 and direct Page 2 of 5 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 11-Mar-2024 14:22:35 // 3 // learned Senior Civil Judge, Nuapada to adjudicate the reference on its own merit giving opportunity of hearing to the Petitioner. 5. Mr. Mishra, learned Additional Standing Counsel vehemently objects to the same. It is his submission that the case laws relied upon by learned counsel for the Petitioner have no application to the instant case. Since the facts involved in W.P.(C). No.25020 of 2023 is not borne out from the order relied upon by the Petitioner, it would not be safe to rely upon the said order. He further submits that the reference was not dismissed for default. It was answered in the negative as the Petitioner did not adduce any evidence. While adjudicating the matter, learned Senior Civil Judge, Nuapada in his order dated 28th January, 2014 has categorically stated as under: “Govt. Pleader is present. Petitioner is absent on calls, Advocate for the petitioner files a petition for time for evidence on the grounds stated therein. Heard. The case record reveals that, petitioner has adduced no evidence despite a number of adjournments. It shows that he is satisfied with the award received from the L.A.O and accordingly he does not want to proceed with this case. Hence, the petition for time deserves no merit and stands rejected. Petitioner to come ready for his evidence by 2.00 P.M. Put up later for hearing.” 6. Thus, it is apparent from the order that learned referral Court closed the case without answering the reference in affirmative as the Plaintiff did not adduce any evidence in the matter. It is his submission that without explaining the inordinate delay of six years, the Petitioner filed the petition to restore the reference, which is not permissible in law. Hence, learned trial Court has committed no error in passing the order either under Annexure-1 or under Annexure-3. He, therefore, prays for dismissal of the writ petition. Page 3 of 5 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 11-Mar-2024 14:22:35 // 4 // 7. Taking note of the submission made by learned counsel for the parties, this Court finds that the reference (LAR No.188 of 2010) was posted to 28th January, 2014 for adducing evidence on behalf of the applicant (grandfather of the Petitioner). Before hand, sufficient opportunities were given to the applicant to adduce evidence in the matter, but he had failed to do so. On the date of posting, learned counsel for the applicant filed an application for adjournment to adduce evidence. Learned trial Court holding that sufficient opportunities were given to the applicant and that he was not interested to adduce evidence in the matter, rejected the petition for adjournment and directed to adduce evidence in the matter. When the matter was taken up during later hour, none appeared on behalf of the applicant although Government Pleader was present. Thus, learned Senior Civil Judge, Nuapada closed the reference and returned the same to the Land Acquisition Officer concerned. The tenor of the order dated 28th January, 2014 clearly indicates that the reference was not dismissed for default. Hence, the ratio in the case of Khazan Singh (supra) is not applicable to the case. Learned referral Court holding that the Petitioner was hopefully satisfied with the award, closed the reference which impliedly indicates that he answered the reference in the negative. Thus, the Petitioner had other remedy instead of filing an application to restore the reference. On perusal of Annexure-1, it is crystal clear that learned Senior Civil Judge, Nuapada discussed the matter in detail referring to the evidence adduced and materials available on record and observed that sufficient cause for condonation of inordinate delay of six years has not been explained. 8. It further appears that during cross-examination, the Petitioner could not also state the date of death of his grandfather. Page 4 of 5 Signature Not Verified Digitally Signed Signed by: ROJALIN NAYAK Designation: Junior Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 11-Mar-2024 14:22:35 // 5 // From the petition filed for restoration of the reference as well as from the discussions made in the impugned order, it appears that the Petitioner proceeded on a misconception that the reference was dismissed for non-prosecution. 9. In view of the discussions made above, since it is observed that the reference was not dismissed for non-prosecution, learned referral Court has no jurisdiction to restore the same. As such, this Court is not inclined to interfere with the order under Annexure-1. 10. Hence, the writ petition is disposed of with an observation that the Petitioner is at liberty to work out his remedy in accordance with law against the order under Annexure-3. Urgent certified copy of this order be granted on proper application. Rojalin (K.R. Mohapatra) Judge Page 5 of 5