Mr. Joao @ John Rodrigues vs Mr. Jose Maria Rodrigues

A.P. Lavande, J.—Heard Mr. G. Teles, learned Counsel for the petitioner and Mr. C. Mascarenhas, learned Counsel for the respondent. By this petition under Article 227, the petitioner takes exception to judgment and award dated 26/08/2009, passed by the District Judge-2, South Goa, Margao in Land Acquisition Case No. 4/2009 holding that the petitioner/party no.1 and respondent/party no.2 are entitled to equal share in the compensation of Rs. 4,472/- awarded by the Land Acquisition Officer in respect of the property bearing Survey No. 79/13 of Carmulim village of Salcete Taluka.

The Government of Goa acquired land for public purpose. An area of 25 square metres of Survey No. 79/13 of Carmulim village was part of the acquired land. Since there was a dispute between the petitioner and the respondent reference u/s 30 of the Land Acquisition Act, 1894 (''the Act'', for short) was made by the Land Acquisition Officer. In Land Acquisition Case No. 4/2009 the petitioner was party no.1 and the respondent was party no.2. At some stage, respondent remained absent and, as such, an ex-parte award came to be passed by the Reference Court on 18/04/2009 directing the payment of entire compensation in favour of the petitioner.

On 14/05/2009, the respondent made an application for setting aside ex-parte award. The application was opposed by the petitioner. The Reference Court allowed the application by order dated 12/07/2009. Thereafter, the Reference Court passed an award dated 26/08/2009 holding that both the parties were entitled to compensation in equal share. The petitioner has challenged order dated 12/07/2009 as well as award dated 26/08/2009 by filing the present petition.

Mr. C. Mascarenhas, the learned Counsel for the respondent at the outset submitted that the Writ Petition filed against the impugned award is not maintainable inasmuch as remedy of appeal is available to the petitioner to challenge the impugned award in terms of Section 54 of the Act. Mr. Mascarenhas further submitted that order dated 12/07/2009 can also be challenged in an appeal against the final award and, as such, the present petition filed is totally misconceived in law.

Mr. Teles, the learned Counsel for the petitioner submitted that the Reference Court, after having passed the award dated 18/04/2009, was functus officio and had no jurisdiction to entertain an application for setting aside ex-parte award. Mr. Teles placed reliance upon the judgment of this Court in the case of Shri Pandurang D. Rane & Ors. V/s. Mrs. Vijabai V. Rane Sardessai (since deceased) through LR''s & Ors. reported in CDJ 2009 BHC 1781. According to Mr. Teles, provision of Order 9 Rule 9 of the CPC is not applicable in a reference u/s 30 of the Act and, therefore, the impugned order dated 12/07/2009 and the impugned award dated 26/08/2009 are patently without jurisdiction and are liable to be set aside by this Court in exercise of writ jurisdiction.

I have considered the rival submissions and perused the record and the judgment relied upon by Mr. Teles.

Section 53 of the Land Acquisition Act, reads thus:

CPC to apply to proceedings before Court - Save in so far as they may be inconsistent with anything contained in this Act, the provisions of the [Code of Civil Procedure, 1908 (5 of 1908)] shall apply to all proceedings before the Court under this Act.

From a bare perusal of Section 53 of the Act, it is evident that the provisions of CPC in so far as they are not inconsistent with the provisions. The Act are applicable in proceedings under the Act. In the case of Shri Pandurang B. Rane & Ors. V/s. Mrs. Vijabai V. Rane Sardessai (since deceased) through LR''s & Ors. (supra) relied upon by Mr. Teles, this Court upheld an order passed by the Reference Court dismissing an application filed under Order 1, Rule 10 of the CPC after placing reliance upon several judgments of the Apex Court in which it has been held that in a reference u/s 30, the parties who had not made an application seeking a reference before the Land Acquisition Officer could not be joined before the Reference Court under Order 1 Rule 10 of the Civil Procedure Code. The ratio of the said judgment does not advance the case of the petitioner. In my considered view, provision of Order 9 Rule 9 of the CPC is applicable to a Reference Court under the act and if an ex-parte award is passed the party aggrieved is entitled to file an application seeking setting aside the award by showing sufficient cause. I am therefore unable to accept the submissions of Mr. Teles that the Reference Court has no jurisdiction to entertain an application for setting aside ex-parte award or that the impugned award passed by the Reference Court is without jurisdiction.

In my considered view, the remedy of Writ Petition is of Section 54 of the Act which provides for an appeal against an award.

For the reasons aforesaid, I do not find any ground to interfere with the impugned order dated 12/07/2009 and award dated 26/08/2009 passed by the Reference Court. The petition filed is totally misconceived in law and, therefore, is dismissed with costs quantified at Rs. 1,500/- in favour of the respondent.