# SUB-DIVISIONAL OFFICER, MIRZAPUR v. RAJA SRI NIWAS PRASAD SINGH

- **Citation:** [1966] 2 S.C.R. 970
- **Court:** Supreme Court of India
- **Decided:** 1965-12-09
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sub-divisional-officer-mirzapur-v-raja-sri-niwas-prasad-singh-3669
- **Pages:** 12

## Headnote

970
SUB-DIVISIONAL OFFICER, MIRZAPUR
v.
RAJA SRI NIWAS PRASAD SINGH
December 9, 1965
[P.
B.
GAJENDRAGADKAR,
C.J., K.
N.
WANCHOO,
M.
HIDAYATULLAH, V.
RAMASWAMI
AND
P.
SATYANARAYANA
RAJU,
JJ.]
Uttar Pmdesh Zamindari Abolilion and Land Reforms Act, 1952
( U.P. I of 1952), s. 343--<Compensation Assessment Roll, Objection
to--Notlce to State Governn1ent-lf necersary-Manner of Service.
The Sub-Divisional Officers of Mirzapur and Chunar Tahsils, functioning as Compensation Officers under
the Uttar Pradesh
Zamindari
Abolition and Land Reforms Act, 1952 prepared draft Compensation
Assessment Rolls, and notified them in the Official Gazette as required by
s. 46(1)(a) of the Act.
A notice was
also served on the respondent,
who was entitled to compensation under the Act.
The ·respondent filed
objections and claimed higher compensation.
The State Government was
not given notice of the objections nor any intimation of the date of hearing was sent to it.
As a result of the objections, the Compensation
awardable to the respondent was enhanced,
and the final compensation
Rolls were then signed and sealed.
Nearly eight months thereafter, the
State Government filed applications before the Compensation Officer for
reopening the objection cases, and claimed (o have made these applications on the 30th day of their knowledge about the revision of the Rolls.
The respondent opposed the applications
alleging that the State had
knowledge of the proceedings, and asked
for the production of certain
documents to prove that the State Government had notice of the proceedings and the State, had, in fact" appeared through
the Zamindari
Abolition Naib Tahsildars to contest the objections. The State Government claimed privilege which was allowed
by
the Objection
Officer.
Thereupon the respondent challenged
the claim of privilege in a
writ
petition to the Hi!l'.h Court, where the respondent was also allowed to
claim a writ of prohibition against the reopening of the objection easeo.
The Single Judge dismissed the writ petition, but on appeal, the Division
Bench quashed the order of the Objection Officer holding the documents
were privileged. It also issued a writ of prohibition.
In appeal,
HELD : Section 343 says that Government shall be a party to every
proceeding and it was therefore
necessary
to join Government and to
send it a notice of the objection.
The definition of "person interested"
is not an exhaustive definition and the interest of Government is manifest.
When the section says that Goverrunent shall b.e deemed to be a party, it
only means that Government can
appear
even if not joined. [977 G;
978 CJ
A notice to Government must be sent to the District Collector
and
till notice is so sent Government cannot be treated as serve\}. [978 F[
Every court and tribunal is entitled to reopen a proceeding which bas
proceeded ex parte, not because a party has failed to appear but because
A
B
c
D
E
F
G
a notice has not been sent to a necessary party. [980 A-Bl
H
. As the question whether the compensation officer would or would not
allow the objection cases to be reopened still
remained to be decided,
the High Court \Vas in error in issuing a writ of prohibition
when the
{ .r-
•
s. D. 0. v. N. P. SINGH (Hidayatul!ah, 1.)
971
A
Cmnpensation Officer had jurisdiction to determine whether to reopen the
proceedings. The question of jurisdiction can only be decided after it
has been considered by the Compensation Officer
and he proceeds
to
reopen the proceedings. [980 E-G]
C1v1L APPELLATE JuR1smcnoN: Civil Appeal No. 751 of
J 963.
B
Appeal from the judgment and decree dated November 21,
1961, of the Allahabad High Court in Special Appeal No. 123 of
1960.
C. B. Agarwala and 0. P. Rana, ·for the appellants.
G. S. Pathak, B. Dutta, C. S. P. Singh, S. N. Prasad and J. B.
C
Dadachanji, for the respondent.

## Text

970
SUB-DIVISIONAL OFFICER, MIRZAPUR
v.
RAJA SRI NIWAS PRASAD SINGH
December 9, 1965
[P.
B.
GAJENDRAGADKAR,
C.J., K.
N.
WANCHOO,
M.
HIDAYATULLAH, V.
RAMASWAMI
AND
P.
SATYANARAYANA
RAJU,
JJ.]
Uttar Pmdesh Zamindari Abolilion and Land Reforms Act, 1952
( U.P. I of 1952), s. 343--<Compensation Assessment Roll, Objection
to--Notlce to State Governn1ent-lf necersary-Manner of Service.
The Sub-Divisional Officers of Mirzapur and Chunar Tahsils, functioning as Compensation Officers under
the Uttar Pradesh
Zamindari
Abolition and Land Reforms Act, 1952 prepared draft Compensation
Assessment Rolls, and notified them in the Official Gazette as required by
s. 46(1)(a) of the Act.
A notice was
also served on the respondent,
who was entitled to compensation under the Act.
The ·respondent filed
objections and claimed higher compensation.
The State Government was
not given notice of the objections nor any intimation of the date of hearing was sent to it.
As a result of the objections, the Compensation
awardable to the respondent was enhanced,
and the final compensation
Rolls were then signed and sealed.
Nearly eight months thereafter, the
State Government filed applications before the Compensation Officer for
reopening the objection cases, and claimed (o have made these applications on the 30th day of their knowledge about the revision of the Rolls.
The respondent opposed the applications
alleging that the State had
knowledge of the proceedings, and asked
for the production of certain
documents to prove that the State Government had notice of the proceedings and the State, had, in fact" appeared through
the Zamindari
Abolition Naib Tahsildars to contest the objections. The State Government claimed privilege which was allowed
by
the Objection
Officer.
Thereupon the respondent challenged
the claim of privilege in a
writ
petition to the Hi!l'.h Court, where the respondent was also allowed to
claim a writ of prohibition against the reopening of the objection easeo.
The Single Judge dismissed the writ petition, but on appeal, the Division
Bench quashed the order of the Objection Officer holding the documents
were privileged. It also issued a writ of prohibition.
In appeal,
HELD : Section 343 says that Government shall be a party to every
proceeding and it was therefore
necessary
to join Government and to
send it a notice of the objection.
The definition of "person interested"
is not an exhaustive definition and the interest of Government is manifest.
When the section says that Goverrunent shall b.e deemed to be a party, it
only means that Government can
appear
even if not joined. [977 G;
978 CJ
A notice to Government must be sent to the District Collector
and
till notice is so sent Government cannot be treated as serve\}. [978 F[
Every court and tribunal is entitled to reopen a proceeding which bas
proceeded ex parte, not because a party has failed to appear but because
A
B
c
D
E
F
G
a notice has not been sent to a necessary party. [980 A-Bl
H
. As the question whether the compensation officer would or would not
allow the objection cases to be reopened still
remained to be decided,
the High Court \Vas in error in issuing a writ of prohibition
when the
{ .r-
•
s. D. 0. v. N. P. SINGH (Hidayatul!ah, 1.)
971
A
Cmnpensation Officer had jurisdiction to determine whether to reopen the
proceedings. The question of jurisdiction can only be decided after it
has been considered by the Compensation Officer
and he proceeds
to
reopen the proceedings. [980 E-G]
C1v1L APPELLATE JuR1smcnoN: Civil Appeal No. 751 of
J 963.
B
Appeal from the judgment and decree dated November 21,
1961, of the Allahabad High Court in Special Appeal No. 123 of
1960.
C. B. Agarwala and 0. P. Rana, ·for the appellants.
G. S. Pathak, B. Dutta, C. S. P. Singh, S. N. Prasad and J. B.
C
Dadachanji, for the respondent.
The Judgment of the Court was delivered by
Hidayatullah, J.
This is an appeal by certificate under Art.
J 33(1)(b) and (c) of the Constitution against the judgment of the
D
High Court of Allahabad in Special Appeal No. 123 of 1960,
dated November 21, 1961. By the judgment under appeal the
Divisional Bench reversing the decision of a learned single Judge
of that Court accepted a petition under Art. 226 of the Constitution filed by the present respondent in the following circumstances.
The respondent Raja Sri Niwas P.rasad Singh owned extensive
E
zamindari interests in tahsils Mirazpur and Chunar of Mirzapur
District in Uttar Pradesh.
The present dispute concerns the
assessment of compensation to which the Raja became entitled
under the Uttar Pradesh Zamindari Abolition and Land Reforms
Act, 1950 (U.P. Act I of 1951) from July l, 1952. Under that
Act, the proprietary interests of the Raja in the Zamindari proF
perties situated in the two tahsils vested in the State of Uttar Pradesh.
The Sub-Divisional Officers of Mirzapur and Chunar
tahsils, who were functioning as Compensation Officers under the
Act, prepared draft Compensation Assessment Rolls and they were
notified in the official Gazette as required by cl. (a) of s. 46(1)
of the Act.
A copy of the notice was also served on the Raja
G
along with a copy of the draft Compensation Assessment Rolls
as required by cl. (b).
The Raja filed objections to the draft
Rolls, contending that the amount of compensation should have
been higher than what was fixed. · It is an admitted fact that no
notice of the objections filed by the Raja was given to the State
of Uttar Pradesh; nor was any intimation of the date of hearing
H
sent. The State Government had, however, issued a notification
[~o .. 145 Z.A.C.-5/158(1953)] on July 29, 1953 instructing all
Dtstnct Officers that in objection cases, in which it was deemed
972
SUPREME COURT
REPORTS
[1966] 2 S.C.R.
necessary to arrange for the State Government to be represented
A
before t.he Compensation Officers, the District Officers should
specifically authorise the Zamindari Abolition N aib Tahsildars to
plead on behalf of the State Government. No special authorisation
in terms of the notification was, however, issued in the present
case, although the Naib Tahsildars without authorisation appeared
~s a matter of course. As a result of the objections, the CompensaB
hon awardable to the Raja for his zamindari interest in Mirzapur
Tahsil was enhanced by about Rs. 3,01,348-5-0. The compensation in respect of his interests in Chunar Tahsil was also substantially enhanced. The final Compensation Rolls were then signed
and sealed on various dates, the last being January 31, 1955 in
the Mirzapur case and December 13, 1954 in the Chunar case.
1:he Raja received the bonds in respect of the original compensatron and also a part of the enhanced compensation. A sum of
over rupees three lakhs remains still to be paid.
c
On August 22, 1955 the State of Uttar Pradesh filed two
applications before the Compensation Officers at Mirzapur and D
Chunar praying that the objection cases be re-opened and the
State Government given a hearing. The main ground on which
the State Government claimed to have the proceedings re-opened
was that notices of the objections ·were not issued to the State
Government as required by ·the Act and that the State Government, having no knowledge of the objections, could not appear E
and contest the case set up by the Raja. The State Government
claimed that the final Compensation Rolls were not binding upon
it.
The State Government averred that information about the
revision of the> Compensation Rolls was received by it for the
first time on July 22, 1955 and the applications were moved
immediately. The Raja opposed the applications and alleged that F
th~ State Government had knowledge of the proceedings and had
actually participated in them before the Compensation Officers
through its Naib Tahsildars.
He urged that the Compensation
Roll~ had become final and could not be reopened.
The Raja
also stated that the State Government and its officers had in their
possession certain documents from which it could be proved conG
elusively that the State Government had full knowledge of the
objections filed by him. In support of his plea the Raja filed an
application on November 11, 1955 before the Compensation Officer, Mirzapur, under 0. 11 rr. 12 and 14 of the Code of Civil
Procedure for discovery and production of the documents
mentioned in the application.
The State Government claimed H
privilege under ss. 123 and 124 of the Indian Evidence Act and
the application was rejected the same day by the Compensation
'
£
:....}
• ...
•
i
s. D. o. v. N. P. SINGH (Hidayatullah, J.)
97~
A Officer.
A similar application for discovery and production of
documents made before the Compensation Officer, Chunar, on
December 15, 1955 was rejected on January 5, 1956 when the
State Government claimed privilege.
On October 6, 1956 the
Pistrict Judge, Allahabad, consolidated the two compensation
cases pending in Mirzapur and Chunar Tahsils and directed that
B
they should be heard by the Sub-Divisional Officer (Compensation
Officer), Mirzapur.
When the cases went before the Sub-Divisional Officer (Compensation Officer), Mirzapur, two fresh applications were filed
on August 22, 1957 for discovery, production and inspection of
c
the documents already the subject of the previous applications and
some more.
The State Government again objected to the last
applic:ation, claiming privilege and al5o pointing out that similar
applications had already been rejected earlier. The State Government requested the Compensation Officer, Mirzapur (Mr. R. K.
Misra) to decide the question whether a second application was
D ·maintainable after the first had been rejected.
By an order,
dated October 12, 1957, Mr. Misra held that the question could
be reconsidered and directed the State Government to file objections in detail.
Before, however, Mr. Misra could decide the
matter finally he was transferred and was succeeded by Mr.
Upadhaya as Compensation Officer in the Tahsil. Mr. Upadhaya
E differed from Mr. Misra and held that the proceedings could not
be reopened. He, accordingly, rejected the two applications for
discovery and inspection.
His order was made on March 31,
1958.
•
The Raja, thereupon, filed on April 11, 1958, a petition under
F
Art. 226 of the Constitution, impugning the order passed by Mr.
Upadhaya and asking that it be quashed by a writ of certiorari.
The Raja also asked for a writ of mandamus or direction to the
Compensation Officer, to hear and determine his (Raja's) application under 0. 11 rr. 12 and 14 of the Code of Civil Procedure.
Subsequently, with the court's permission, two more grounds
G
were added on May 5, 1958 and one such ground was the
following :-
H
"Because the Assessment Rolls have become final
and they cannot be opened at this stage".
Although the matter in dispute really was whether inspection and
discovery had been wrongly disallowed, the High Court at the
hearing permitted the Raja to raise the more fundamental
question : whether the State of Uttar Pradesh was entitled to
974
SUPREME COURT
REPORTS
[1966] 2 S.C.R.
claim to reopen the proceedings by which compensation was
A
revised.
The main ground on which the State ·Government
resisted the plea of the Raja was that it had no notice under the;
Act of the proceedings for revision.
Mr. Justice Jagdish Sahai
who heard the petition for writ dismissed it on February 23,
1960, but on appeal his judgment was reversed by the Divisional
Bench on November
21,
1960.
The Divisional Bench B
quashed the order, dated March 31, 1958, and issued a
writ of prohibition restraining the Compensation Officer, Mirzapur from proceeding with the applications filed by the State
Government for the restoration of the objection cases to file. The
present appeal has been flied against the last order.
It is hardly necessary to set down the reasons given by Mr.
Justice Jagdish Sahai and the Divisional Bench in reaching
opposite conclusions, or the arguments that were advanced before
us in support of the rival cases.
The matter is to be resolved
on a construction of the sections of the Act and as we proceed
c
to consider them we shall advert to the arguments where
D
necessary.
Chapter III of the Act deals with the Assessment of Compensation. Under s. 27 every intermediary whose rights, title or
interests in any estate are acquired under the provisions of the
Act is entitled to receive and be paid compensation.
The sections that follow lay down how compensation is to be assessed.
The first step is to prepare draft Compensation Assessment Rolls
in respect of each intermediary.
After the draft Compensation
Assessment' Rolls are ready they are published. Section 46 lays
. <lown how they are to be published. It reads :
"46. Preliminary publication of the draft Compensation Assessment Roll.
(I) After the draft Compensation Assessment Roll
in respect of any intermediary has been prepared, the
Compensation Officer shall-
(a) publish a notice in _the Gazette and in such
other manner as may be prescribed to the effect that
the Statement referred to in section 38 and the draft
Compensation Assessment Roll mentioned in section 40
have been prepared and are open to inspection by the
persons concerned;
(b) serve or cause to be served on the intermediary concerned a copy of the notice aforesaid along
with a copy of the draft Compensation Assessment Roll.
E
F
G
H
:>
i
'
B
s. D. o. v. N. P. SINGH (Hidayatullah, J.)
975
(2) The notice under sub-section (1) shall call upon
all persons interested, including a person who claims
that the name of the intermediary is, in respect of any
share or interest to which such person is entitled,
entered in a representative capacity or in the capacity
of the karta of a joint Hindu family, to appear and file
objfrtions upon such statement or roll within a period
of two months :
Provided that no objection on the ground that the
intermediary is entitled to a greater or lesser share or
part of the estate or is not entitled to any share or
C
part thereof shall be entertained except when it is on
any of the grounds mentioned in the notice or is in
pursuance of any order under section 32 or 33."
A notice was in fact published in the Gazette as required by
cl. (a) of sub-s. (1) and a special notice was served upon the
D intermediary as required by cl. (b).
The notice in s11b-s. (1) is
addressed to "persons interested" which term is defined in s. 63
as including all persons whether or not recorded in the recordof-rights claiming to be entitled as intermediaries to the compensation or any part or share therein to be assessed and paid
on account of the' acquisition of the estates under the Act. The
E definition does not include Government but it is not exhaustive.
Persons interested are called upon to appear and file objections
within 2 months of the publication.
The question, therefore, is
whether the State Government was bound to appear in answer
to a notice published in the Gazette under s. 46 or a separate
F
notice to the State Government was necessary when objections
were raised to the amount of compensation.
This can only be •
decided by referring to a few sections of the Act and some of
the rules framed under it. The first section to consider is s. 343
which provides :
G
H
"34:3. State Government to be a party in the proceedings under chapters III to V."
(1) The State Government shall be and be deemed
t? be a party in every proceeding before the Compensal!on Officer or the Rehabilitation Grants Officer under
chapters III to V and every notice to be served or
. intended to be served on the State Government may be
served on the Collector or any authority nominated by
the Collector.
976
,
SUPREME COURT REPORTS
[1966] 2 S.C.R·
(2) Notwithstanding anything contained in the said
chapters or clause (d) of sub-section (1) of Section 344,
the period of limitation for filing of an appeal by or on
behalf of the State Government shall be ninety days
from the date of the order appealed against.
A
This section must be construed with ss. 4 7 to 52. Under s. 4 7
B
it is provided that if any objection is filed it shall be registered
by the Compensation Officer'who shall fix a date for hearing the
same and give intimation to the intermediary concerned and to
any person who may have appeared in reply to the notice under
s. 46.
l.t is contended on behalf of the respondent that no ,
notice
to
the State Govermnent was necessary because it c
was not a person interested and had not appeared in reply to
the notice under s. 46. It is contended on behalf of the State
Government that the State Government was entitled to a notice
because the Act intends that it should be a party to every proceeding before the Compensation Officer.
Both sides refer to
ss. 48 to 52 in aid and construe them in their favour.
Under
D
s. 48 it is stated that in hearing and deciding objections the
Compensation Officer shall have· all the powers of a civil court
and, subject to modifications as may be prescribed, must follow
the procedure laid down in the Code of Civil Procedure for hearing and disposal of suits relating to immovable properties. The
State Government contends that the proceedings before the ComE
pensation Officer are thus equated to a suit and the State Government which has to pay the compensation is in the position of
a defendent and must receive notice. of the objection. On behalf
of the respondent it is contended that the State Government is
already a party by virtue of the deeming clause in s. 343 and
no notice is therefore required unless the State appears in answer
F
to the Gazette notification.
One thing is clear : that a notice
to the State Government was not sent in the manner required
by s. 343 which says that every notice to be served or intended
to be served on the State Government may be served on the
Collector or any authority nominated by_ the Collector.
No
notice could be given except to the Collector and it was not
G
enough to publish a general notice in the Gazette because notice
to the State Government had to be in the manner laid down by
the section and no other. If it was desired that the State Government should have notice of the objection, a notice under s. 343
had to issue. No notice was served upon the Collector as laid
down in the section and no intimation of the date was· sent to H
the State Government under s. 4 7 informing the State Government of the date fixed for hearing of the objections. The State
1
. <:
,
)
A
s. D. o. v. N. P. SINGH (Hidayatullah, J.)
977
Government contends that as under s. 49 the order under s. 48
is deemed to be a decree of a civil court and is appealable under
ss. 50 and 51 to the District Court and to the High Court, if a
notice had been sent to the State Government it could have
availed itself of these sections and appealed against the decision
of the Compensation Officer and refer to the special limitation
B laid down for appeals by State Government in s. 343(2) quoted
above.
This, it is contended, indicates that the State Government is to be a party to the proceedings.
The other side, on
the other hand, contends that as a notice was already published
in the Gazette under s. 46 the State Government was bound to
appear on its own and the only remedy which it had was by
C way of an appeal since there is no provision in the Act by which
the order of the Compensation Officer, which is deemed to be
a decree, can be set aside.
The respondent says that the provisions of 0. 9 and s. 151 of the Code of Civil Procedure under
which the decrees which are passed ex parte, are ordinarily set
D
E
F
G
H
aside do not apply and contends that since the State Government did not appear and contest the objection to the amount
of compensation and did not appeal under s. 50 to the District
Court the final Compensation Assessment Roll, which was signed
and sealed, became final under s. 52(1) and (2) of the Act and
it cannot now be re-opened.
This is the case accepted by the
Divisional Bench.
We have first to construe s. 343 of the Act which seems to
have led to the rival conclusions in the High Court. That section
says that the State Government shall be deemed to be a party
to every proceeding. Now it cannot be denied that on the objection being made, a proceeding started before the Compensation
Officer.
The State Government must be deemed to be a party
to that proceeding and the only question is what the Act means
by saying that "the State Government shall be a party" to every
proceeding.
The learned Single Judge found the section inartistic but, in our opinion, it clearly conveys two ideas which are
quite distinct.
By the words "the State Government shall be a
party" is intended that the State Government must be joined as
a party to every proceeding under the Act.
The effect of the
words "the State Government shall be deemed to be a party to
every proceeding" is that it does not have to apply to be joined
as a party -even if not so joined.
The State Government can
always appear without being joined because it is always deemed
to be a party.
Even if the State Government was left out by
the objector and no other party asked that the State Government be joined, the State Government could always intervene,
978
SUPREME COURT
REPORTS
(1966] 2 S.C.R.
not by asking to be joined but as one already deemed to be a
A
party.
The section, therefore, works in two-ways.
It entitles
State Government to take part in any proceeding withbut being
in the array of the parties. It also compels any one starting a
proceeding to join the State Government as a party. The result
of this section is that when a notice is issued under s. 46(1) the
State Government may object to a draft Compensation AssessB
ment Roll if it chooses, but ·it must be made a party to a proceeding started on an objection by any party. The definition of
"persons interested" is not an exhaustive definition and the
interest of the State Government is manifest because it is the
party which is required to pay the compensation. By virtue of
s. 343, therefore, State Government is always a person interested
C
in every proceeding and it was, therefore, incumbent upoij the
Compensation Officer to send an intimation of the date of hearing to the State Government so that the State Government might
make arrangements for opposing the objections if it chose.
It
is futile to say that because the State Government is deemed
to be a party, it was not entitled to the special intimation which D
the law requires should be given to an intermediary as well as
every person interested. There were thousands of such compensation cases and it would be impossible for the State Government
to arrange to appear in every objection case without intimation
and to watch the proceedings in hundreds of courts for this
E
purpose. It is thus provided by s. 343 that if a notice has to be
sent or is intended to be sent to the State Government it shall be
sent to the District Collector.
No general notice can suffice.
Till a notice is sent, the State Government will not be deemed
to be served. It is, therefore, quite clear that the State Government ought to have been joined by the objector to the proceedF
ings for enhancement of compensation. It is equally clear that
even though not joined the State Government was entitled to
a special notice, in common with the intermediaries and other
persons interested, of the date of the hearing.
Since no such
intimation was sent the proceedings will not,
prima facie, bind
the State Government and that in fact is the claim made by
G
the State Government by its applications for the reopening of
the proceedings before the Compensation Officers.
It is contended that under certain notifications all Sub-Divisional Officers were empowered to discharge the functions of a
Collector under the Abolition Act and all Assistant Collectors
were made ex officio Compensation Officers and the CompensaH
lion Officer having notice, the State Government must be deemed
to have notice also.
This is not correct.
The Compensation
'('
I
,
)
A
B
c
D
s. D. o. v. N. P. SINGH (Hidayatul/ah, J.)
979'
Officer acts as a court and a court cannot represent a party. A
separate notice was necessary.
It was contended that the State Government could have
appealed against the decision of the Compensation Officer.
An
affidavit has been sworn on behalf of the State Government that
it did not know the decision of the Compensation Officer till the
22nd July, 1959. The application for reopening the proceedings
was filed on the 30th day and would be within time for setting
aside and ex parte decree if the intimation did reach the State
Government on July 22 for the first time.
This matter must
be tried and has not been tried. The respondent, however, contends that there is no provision for review; that the Compensation Rolls became final under s. 52; and that the State Government not having appealed, the Compensation Officer cannot reopen the proceedings. This, in our opinion, is not quite correct.
The other side relies upon Craig v. Kanssen(')
and contends
that failure to serve a notice rendered null and void the order
against the State Government and the State Government was
entitled to have it set aside and the Compensation Officer has
inherent power to set it aside.
The other side challenges t.his
inherent power.
No doubt the Code of Civil Procedure is to be used as far as
E may be and even if 0. 9 does not strictly apply the inherent power
conferred by s. 151 of the Code of Civil Procedure must be
available to the Compensation Officer.
It is contended that no
general power of review is granted by the Act and as the Civil
Procedure Code provides for the manner in which ex parte decrees
can be set aside, inherent powers to set aside ex parte decrees may
F
G
H
not be invoked by the Compensation Officer and the proceedings
before him for reopening the objection case must be without jurisdiction. Reference is also made to s. 61 under which a slip order
can be made and it is contended that the Compensation Officer
after signing and sealing the final Compensation Assessment Rolls
cannot do more than correct slips or errors apparent on the record ..
Here the question is not one of reopening the Compensation
RoU or the objection case for purposes of making a correction or
for review. The question here is that one of the necessary parties
to the objection cases ·was neither joined nor noticed to appear.
The most important party, besides the objector, claiming enhancement of the compensation, was the State which has to pay the
enhanced compensation. That party had to be joined to the proceedings under s. 343 and a notice or intimation .of the date of
(1) LR. [1943] K.B.D. 216.
980
SUPREME COURT
REPORTS
[ l 966] 2 S.C.R.
the hearing had to be sent as .laid down in s. 343. Section 343
prescribes not only the manner of serving notices but lays down
that the State Government must be joined. Every court and tribunal is entiNed to reopen a proceeding which has proceeded ex parte,
not because a party has failed to appear but because a notice has
not been sent to a necessary party. A decision reached behind the
back of a necessary party to whom notice must be sent is not
binding upon such a party and the Court may in such a' case
reopen the proceeding to give the party a chance to state its case.
When the petition for writ was filed the proceedings before
the Compensation Officer were at a very early stage.
The State
Government had applied for reopening of the objection cases and
the Zamindar had asked for certain documents to prove that the
State Government had notice of the proceedings and had, in fact,
appeared through the Zamindari Abolition Naib Tahsildars to
contest the objections.
The State Government had claimed privilege and the claim of privilege was allowed by the Objection
Officer.
The Zarnindar had thereupon filed the
application to
challenge the claim of privilege and to get the order of the Compensation Officer quashed.
As we have said earlier the matter
was allowed to be enlarged so that the respondent was enabled
to claim a writ of prohibition to stifle the case of the State Government for reopening of the object.ion case.
The High Court
not only quashed the order by which the documents asked to be
produced were held to be privileged, but at the same time issued
a writ of prohibition in the case. The question whether the Compensation Officer would or would not allow the objection cases
_, be reopened still remains to be decided and the High Court
was in error in issuing a writ of prohibition when the Compensation Officer had clearly jurisdiction to determine whether to reopen the proceedings.
The question of jurisdiction can only be
decided after it has been considered by the Compensation Oiicer
and he proceeds to reopen the proc~dings. No such question
appears to have been raised before the Compensation Officer and
in fact it was not so raised even in the petition before the High
Court. In such circumstances the writ of prohibition was not
called for and ought not to have been issued.
It is manifest that
the State Government was not sent a notice of the hearing of the
objection cases and it has a right to move the Objection Officer to
reopen the proceedings. Whether the Compensation Officer would
reopen the proceeding or not is a matter for the Objection Officer
to decide in the first instance. It cannot be said at thfa stage that
the.re is no juri~diction in the Objection Officer to consider the
petition of the State Government.
A
B
c
D
'
E
~
F
G
H
r
)
I
s. D. 0. v. N. P. SINGH (Hidayatul/ah, !.)
981
A
In the circumstances, we dissolve the writ of prohibition which
has been issued by the High Court but maintain the order of the
High Court quashing the order, dated March 31, 1958.
This
does not mean that the State Government is bound to produce all
the documents.
The Compensation Officer will be required to
decide, in the light of the decisions of this Court reported in
B The State of Punjab v. Sodhi Sukhdev Singh(') and Amar Chand
Butail v. Union of India and Others('), whether the claim of
privilege raised by the State Government should be sustained or
not. That must be done after appropriate affidavits by the heads
of the Departments concerned are filed and the claim of privilege
is properly examined.
c
In the result the writ of prohibition issued by the High Court
is dissolved but the order quashing the order, dated March 31,
1958, is upheld.
The claim for privilege which has not been
properly raised shall be raised in accordance with law. The Compensation Officer, who undoubtedly possesses jurisdiction to reD open the case, shall decide whether to reopen it or not after passing an order on the claim of privilege in accordance with the
rulings of this Court. The respondent shall be entitled to raise
such pleas in opposition as may be open to him in law.
The
appeal is thus allowed in part but in the circumstances the respondent shall pay the costs of the appellant.
E
Appeal allowed in part.
(1) [19,I] 2 S.C.R. 371.
(2) A.I.R. 1964 s.c.R. 1658,