JOSEPH v. THE SPECIAL TAHSILDAR

APPENDIXPETITIONER'S EXHIBITS:EXT.P1TRUE COPY OF JUDGMENT IN O.P.NO.7252/2003 DATED 14.3.2003OF THIS COURT.EXT.P2TRUE COPY OF DECREE IN L.A.R.NO.221/94 DATED 20.11.2003OF THE III ADDL. SUB JUDGE, ERNAKULAM.EXT.P3TRUE COPY OF REGISTERED LETTER TO SPECIAL TAHSILDARLA, KAKKANAD BY PETITIONER WITH COPY TO DISTRICTCOLLECTOR, ERNAKULAM DATED 17.3.2004.EXT.P4TRUE COPY OF THE REGISTERED LETTER NO.C1-566/04 DATED 8.2.2006 OF THE FIRST RESPONDENT.RESPONDENTS' EXHIBITS:EXT.R1(a)LETTER NO.LAC 88/91 DATED 8.2.1994.//TRUE COPY//ahz/ K.T. SANKARAN, J. ------------------------------------------- W.P.(C) NO. 17522 OF 2006 J ------------------------------------------- Dated this the 24th day of August,2007 JUDGMENTThe questions involved in this Writ Petition are: (1) Is it incumbentupon the Reference Court under the Land Acquisition Act to refer back thepapers to the Land Acquisition Authority if the claimant dies afterreference? (2) Whether the legal representatives of the claimant areentitled to come on record as such in substitution of the deceasedclaimant in the Land Acquisition Reference proceedings? and (3) Whatshould be the procedure if the Land Acquisition Authority does not returnthe papers after complying with the directions issued by the ReferenceCourt within a reasonable time?2. An extent of 4.10 Ares of land belonging to one Raphel wasacquired along with other lands. On 20.6.1992, an award was passed.Since there was dispute regarding disbursement of the award amount,reference was made under Section 31(2) of the Land Acquisition Act, whichwas numbered as L.A.R.No.221 of 1994, on the file of the Sub Court,Ernakulam. Raphel, who was `B' claimant, died on 5.10.1994. The legalrepresentatives of Raphel, one of whom is the petitioner in this WritPetition, filed an application to get themselves impleaded in the land W.P.(C) NO.17522 OF 2006 :: 2 ::acquisition proceedings in L.A.R.No.221 of 1994. Instead of impleadingthem, the Reference Court issued a direction to the Land AcquisitionOfficer to get a report regarding identity of the legal representatives ofRaphel. That case was being adjourned from 1994 to 1998 awaiting thereport of the Land Acquisition Officer. Till 2003 nothing tangible transpired.The petitioner herein filed O.P.No.7252 of 2003, which was disposed of asper judgment dated 14.3.2003, directing the Land Acquisition Officer to re-submit the land acquisition file to the Reference Court. It was held that ifthe Land Acquisition Officer fails to do so, the petitioner would be free tosupply all the relevant documents before Court and the court below shouldreconstruct the file on the basis of such records. It is submitted that theLand Acquisition Officer did not comply with the directions and on the basisof the documents produced by the petitioner the files were reconstructedand L.A.A.No.221 of 1994 was disposed of as per Ext.P2 decree, holdingthat the legal representatives of Raphel would be entitled to receive theamount of compensation.3. Deceased Raphel had filed an application for reference underSection 18 of the Land Acquisition Act claiming enhanced compensation.Reference was made and the case was numbered as L.A.A.No.299 of1994. After reference, Raphel died. His legal representatives were not W.P.(C) NO.17522 OF 2006 :: 3 ::impleaded as no steps were taken either by the Land Acquisition Officer orby the legal representatives of deceased Raphel in that regard. Thelearned counsel for the petitioner submits that no notice was issued toRaphel in L.A.A.No.299 of 1994 nor did he appear in the case. Thecounsel submits that the legal representatives of Raphel were not bound todo anything in the Land Acquisition Reference. The Writ Petition is filedpraying for the issue of a writ of mandamus commanding the respondents,The Special Tahsildar (Land Acquisition) and the District Collector, to makea reference to the appropriate court or to take steps to reconstruct therecords of the Reference Court for disposal of the case.4. The petitioner submitted Ext.P3 representation dated 17.3.2004,to the Special Tahsildar and District Collector stating the facts in detail andrequesting for a reference showing the names of the legal representativesof Raphel to enable them to prosecute their claim for enhancement ofcompensation. Ext.P4 letter dated 8.2.2006 was sent by the SpecialTahsildar to the petitioner stating that on getting the information of theDistrict Government Pleader, he is of the view that a second reference isnot possible as requested for in Ext.P3, presumably under the impressionthat what was prayed for by the petitioner was for a second reference. W.P.(C) NO.17522 OF 2006 :: 4 ::5. A counter affidavit is filed by the first respondent stating thatreference application made by Raphel was forwarded to the Sub Court,Ernakulam as per letter dated 8.2.1994, which was despatched on16.3.1994. The stand taken by the first respondent is that once thereference is made under Section 18, a second reference is not possibleunder law.6. A report was called for from the Principal Sub Judge, Ernakulam.It is reported that the reference was made to that Court and it wasnumbered as L.A.R.No.299 of 1994 on 8.4.1994. After the death of theclaimant Raphel, the Land Acquisition Officer was addressed to reportabout the particulars of the legal representatives. Since no reply wasreceived, on 24.8.1995, the reference was returned for re-presentationafter obtaining the correct address of the legal representatives of thedeceased claimant. It is also reported that thereafter the papers were notre-presented. It is further stated that the status of the case is “idle” and thefile is kept in the record section of the Court.7. Section 53 of the Land Acquisition Act reads as follows:“53. Code of Civil Procedure to apply to proceedingsbefore Court:- Save in so far as they may be inconsistent withanything contained in this Act, the provisions of the Code of W.P.(C) NO.17522 OF 2006 :: 5 ::Civil Procedure, 1908 (5 of 1908) shall apply to allproceedings before the Court under this Act.”If the provisions of the Code of Civil Procedure apply, certainly theprovisions of Order XXII of the Code of Civil Procedure also must apply.Order XXII Rule 3 provides for impleading the legal representatives of thedeceased plaintiff. Rule 2 of Order XXII provides for recording that thesurviving plaintiffs or defendants shall represent the estate of the deceasedplaintiff or defendant. Article 120 of the Limitation Act provides for a periodof ninety days for filing the application for impleading the legalrepresentatives of the deceased plaintiff or defendant. If no suchapplication for impleading the legal representatives is filed within ninetydays, there would be abatement. Article 121 of the Limitation Act providesfor a period of sixty days to set aside the abatement. Even if no suchapplication is filed within 150 days from the date of death, the delay can becondoned under Section 5 of the Limitation Act.8. The question whether the provisions of Order XXII of the Code ofCivil Procedure would apply to Land Acquisition References wasconsidered by various High Courts. The Calcutta High Court in State ofW.B. v. Dwijendra Chandra Sen (AIR 1979 Calcutta 182), held that OrderXXII of the Code of Civil Procedure would apply to Land Acquisition W.P.(C) NO.17522 OF 2006 :: 6 ::References. In that decision, the Calcutta High Court held thus:“12. By virtue of Section 53 of the Land Acquisition Actthe provisions of Civil Procedure Code are applicable to allproceedings before the Court under the Act unless suchprovision in the Code is inconsistent with anything contained inthe Act. Any provision in the Land Acquisition Act would notappear directly to be inconsistent with the principle ofsubstitution under Order 22 of the Civil Procedure Code. Thereference under that Act cannot be regarded in any waydifferent from an ordinary Civil Proceeding. In this view of thematter, a reference under Section 18 of the Land AcquisitionAct or an appeal arising out of an award would be attracted byOrder 22 of the Civil Procedure Code....”The Gujarat High Court in Alihusain Abbasbhai and others v. Collector,Panch Mahals (AIR 1967 GUJARAT 118), held that a reference underSection 18 of the Land Acquisition Act is a proceeding before Court and byvirtue of Section 53 of the Act, the provisions of the Code of CivilProcedure including the provisions contained in Order XXII Rule 3 areapplicable to such references. When the applicant died during thependency of the proceedings before the Reference Court, the legalrepresentatives of the applicant are entitled to make an application to theCourt for bringing themselves on record as the legal representatives of thedeceased party. It was also held by the Gujarat High Court that no timelimit is prescribed for filing of an application for substituting the legalrepresentatives of the deceased applicant and that Article 176 of the W.P.(C) NO.17522 OF 2006 :: 7 ::Limitation Act, 1908 (corresponding to Article 120 of the Limitation Act,1963) would not apply.9. The Madhya Pradesh High Court in Abdul Karim v. State ofMadhya Pradesh (AIR 1964 MADHYA PRADESH 171), held that theprovisions of Order XXII of the Code of Civil Procedure do not apply to theproceedings under Section 18 of the Land Acquisition Act. It was held:“Section 53 cannot be read as creating a fiction fordeeming “proceedings before the Court under the Act” asproceedings in any suit. It is thus plain that Order 22 of theCode of Civil Procedure cannot be applied to proceedingsunder Section 18 of the Act taking those proceedings as suitproceedings in reality or fictionally under the Code of CivilProcedure. Its applicability to proceedings under Section 18 ofthe Act can only be by virtue of Section 53 and subject to thelimitation contained in that section. The limitation is that theprovision of the Code of Civil Procedure intended to be appliedmust not be inconsistent with anything contained in the Act.For the purpose of inconsistency it is not necessary that thereshould be an express provision to the contrary in the Act itself.It would be enough if the applicability of a provision of theCode of Civil Procedure to any proceedings before the Courtunder the Act would be incompatible with the nature of theproceedings.”It was further held by the Madhya Pradesh High Court that the presidingJudge has to make an award once a reference is made under Section 18,no matter whether the person at whose instance the reference has beenmade appears or fails to appear before the Court or fails to produceevidence in support of his objection. It was the view of the Madhya W.P.(C) NO.17522 OF 2006 :: 8 ::Pradesh High Court that there could be no dismissal of the reference asabated due to non-impleadment of the legal representatives of thedeceased claimant. In this context the Madhya Pradesh High Court heldthat:“If the person who moved for the reference dies and noone comes forward to represent him in the Court, then it isclearly the duty of the Government to supply to the Court thenames and addresses of the legal representatives of thedeceased claimant to enable the Court to issue fresh noticesto them under Section 20. In the present case, there was nodifficulty about tracing the legal representatives of AbdulHakim and issuing notices to them. They themselves hadcome forward as his legal representatives and made anapplication for being brought on record as Abdul Hakim's legalrepresentatives. The learned Additional District Judge shouldhave, therefore, brought Abdul Karim and Abdul Majid onrecord as the legal representatives of Abdul Hakim and giventhem an opportunity of leading evidence in support of theobjection made by Abdul Hakim to the award given by theLand Acquisition Officer. He was clearly in error in applyingOrder 22 of the Code of Civil Procedure and Articles 171 and176 of the Limitation Act. If, as we have said above, theproceedings under Section 18 are not suit proceedings, and inthe very nature of those proceedings Order 22 cannot beapplied to them, then clearly neither Article 171 nor Article 176can be invoked. It must be remembered that Article 176 of theLimitation Act applies to suits and appeals arising out of a suit.It has no applicability to other proceedings. If Order 22 canproperly be applied to proceedings which are not suitproceedings, then the relevant article of limitation would be theresiduary Article 181 and not Article 176 of the Limitation Act.”10. A Full Bench of the Delhi High Court in Mst.Ram Piari and W.P.(C) NO.17522 OF 2006 :: 9 ::others v. The Union of India (AIR 1978 DELHI 129) took the view thatOrder XXII Rules 3 and 9 would apply to a reference under Section 18 ofthe Land Acquisition Act and that the Limitation Act also would apply. Thelegal representatives of the deceased party are bound to apply to the Courtfor being brought on record to enable them to prosecute the reference.One of the reasons for taking this view is that no obligation is cast on theCourt to make an award on the failure of the applicant at whose instancethe reference is made, to appear and to adduce evidence. The Full Benchalso took the view that no obligation is cast on the Collector to furnish thenames and addresses of the legal representatives of the deceasedclaimant to keep the reference alive.11. Another Full Bench of the Delhi High Court in Chander andothers v. Mauji and others (AIR 1989 DELHI 97) followed the decision inAIR 1978 DELHI 129(supra) and held that the provisions of Order XXII ofthe Code of Civil Procedure and those of the Limitation Act relating toabatement on the death of a party would apply to the proceedings underSections 30 and 31 of the Land Acquisition Act and also to the appealarising out of the said proceedings.12. I have carefully considered the different views expressed by the W.P.(C) NO.17522 OF 2006 :: 10 ::Delhi, Calcutta, Madhya Pradesh and Gujarat High Courts. It is well settledby the decisions of the Supreme Court that the court dealing with areference under Section 18 of the Land Acquisition Act has to decide thereference on the merits. The Supreme Court also has taken the view thatan application under Order IX Rule 9 of the Code of Civil Procedure ismaintainable before the reference court. There is a difference between anordinary civil litigation and a reference under the Land Acquisition Act. Theplaintiff can directly approach the civil court and seek his relief bypresenting a plaint. A person aggrieved by the quantum of compensationfixed by the Land Acquisition Officer has no such right to directly approachthe reference court by filing an Original Petition or by making any otherapplication. He can ventilate his grievance only by filing an applicationbefore the Land Acquisition Officer stating that he is not satisfied with theamount awarded. A period of limitation is also provided under Section 18(2) of the Act for making an application for reference. Once an applicationis made under Section 18 of the Act, the claimant has no role to play in theprocessing of the application and in bringing the matter before thereference court. The claimant need appear before the reference court onnotice. Only thereafter, he can participate in the proceedings and putforward his contentions. There may arise cases where the death of theclaimant may occur after making the reference application but before the W.P.(C) NO.17522 OF 2006 :: 11 ::reference reaches the Court; or the death may occur after the referencereached to the Court but before notice was received by the claimant. In yetanother case, the death of the claimant may occur after he received noticeand before appearance is made by him before Court. Another situationmay arise where the death of the claimant occurs after he entersappearance in the reference case on notice. A claimant can be said tohave participated in the proceedings before the reference court only onreceipt of notice. So there can be no doubt that if the death occurs beforethe matter reaches the reference court, it is the duty of the Land AcquisitionOfficer to furnish the details of the legal representatives of the claimant andmake a proper reference to the court. Once the matter reaches the Courtby way of reference, the Land Acquisition Act does not provide for any dutyon the Land Acquisition Officer to make an application to substitute thelegal representatives of the claimant. The claimant in the reference casewould be in the position of a plaintiff. Therefore, in cases where the deathoccurs after the reference reaches the court and notice is received by theclaimant, it can be safely concluded that the legal representatives of thedeceased claimant have to come on record on their application. I am alsoof the view that if the death occurs after the reference and before notice isserved on the claimant, the Land Acquisition Court could legitimately directthe Land Acquisition Officer to furnish the details of the legal W.P.(C) NO.17522 OF 2006 :: 12 ::representatives of the claimant so that notice could be issued by the LandAcquisition Court to those legal representatives.13. In so far as abatement is concerned, I prefer to agree with theview taken by the Madhya Pradesh High Court that there could be nodismissal of the reference case on the ground of abatement.14. On consideration of the various views expressed by the HighCourts and taking into account the statutory provisions, I am of the viewthat the following principles can be adopted, which, according to me, wouldbe more suitable and would cause less inconvenience to the parties. (1) If the death of the claimant occurs before the reference is made,certainly the duty is on the Land Acquisition Officer to make areference showing the legal representatives of the deceasedclaimant as additional claimants. (2) If the death of the claimant occurs after the reference reaches theCourt and before service of notice, the reference court shall addressthe Land Acquisition Officer to furnish details of the legalrepresentatives of the deceased claimant and thereafter the LandAcquisition Court shall issue notice to those legal representatives. (3) If the death of the claimant occurs after the claimant has receivednotice in the Land Acquisition Reference, the duty to come on record W.P.(C) NO.17522 OF 2006 :: 13 ::is on the legal representatives of the deceased and to that extent,the provisions of Order XXII of the Code of Civil Procedure wouldapply. (4) The provisions of Order XXII as regards abatement would not apply toLand Acquisition Reference. Since there could be no abatement,there is no question of there being delay in making the application forimpleading. The question of condonation of delay, therefore, doesnot arise at all. (5) The provisions of the Land Acquisition Act or the Code of CivilProcedure do not cast any inhibition on the legal representatives ofthe deceased claimant for applying to bring them on record asadditional claimants in the party array in the land acquisitionproceedings. If such an application is filed by the legalrepresentatives, nothing prevents the Land Acquisition Court inentertaining that application and impleading the legal representativesof the deceased with due notice to the Land Acquisition Officer. It isnot necessary to refer the matter back to the Land Acquisition Officerfor a report since the Land Acquisition Officer is already on the partyarray in the Land Acquisition Reference. Objection, if any, to suchimpleading could be raised by the respondent Land AcquisitionOfficer and the Court could consider the same on the merits. W.P.(C) NO.17522 OF 2006 :: 14 ::In view of the principles enunciated above, the Writ Petition isdisposed of permitting the petitioner and other legal representatives of thedeceased Raphel to file an application before the Land Acquisition Courtfor impleading. If such an application is filed, the Land Acquisition Courtshall implead them as additional claimants and dispose of the LandAcquisition Reference on the merits. The Land Acquisition Court shalldispose of the reference as expeditiously as possible in view of the fact thatthe award was passed in 1992 and more than 15 years elapsed since thedate of award.(K.T.SANKARAN)Judgeahz/