Special Land Acquisition Officer (2) vs Harichandra Ramji Patil and others

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1999 Supreme(Bom) 705

IN THE HIGH COURT OF BOMBAY
F.I. Rebello, J.
Special Land Acquisition Officer (2)..... Plaintiffs.
Versus
Shri Harichandra Ramji Patil others..... Claimants.
Land Acquisition Reference No. 31 of 1980, decided on 16-9-1999.
Advocates appeared :
Ms. Geeta Shastry with Ms. R. Ambekar, for SLAO.
S.R. Rajguru, for acquiring body.
R.S. Tripathi with C.M. Korde and M.B. Rele, for claimants.

Headnote:Order XXII.-See Land Acquisition Act, 1894, Sections 18, 19, 30 and 53.
Sections 18, 19, 30 and 53 - Civil Procedure Code, 1908, Order XXII and Limitation Act (36 of 1963), Articles 120 and 121-Reference proceedings as provided under Land Acquisition Act-Death of claimant Procedure to bring legal representatives on record-Order XXII, CPC as well as provisions of Limitation Act apply-Amendments to be carried out by Government Advocate/State in Reference.-Where the sole claimant or one of the claimants expires during the pendency of reference under the Land Acquisition Act before the Court, provisions of Order XXII of the Code of Civil Procedure as well as the provisions of the Limitation Act, will apply. Once Section 53 of the Land Acquisition Act makes applicable the provisions of Code of Civil Procedure, Order XXII becomes applicable. Even if it is construed that the reference is not a suit yet the reference has to be made to a Civil Court and considering Section 141 of the Code of Civil Procedure, the provisions of the Code of Civil Procedure will also apply insofar as the applications to a Court are concerned. Once an application is maintainable under Order XXII, CPC limitation will be governed by Articles 120 and 121 of the Schedule to the Indian Limitation Act. In a suit the plaint proceeds on the footing that it is the plaintiffs ~ho moved the Court based on the cause of action. Language of Order XXII refers to survival of the right to sue. The application therefore has to be made by the party interested in contesting the proceedings and in whom the right to sue survives. As it is the plaintiff who sues for the relief it will be the surviving plaintiff or their legal heirs, who must apply, similarly, insofar as reference is concerned, the reference is made on the application of the parties to the dispute who are not satisfied with the offer made by the Collector Land Acquisition Officer, the onus thereafter to prove the contention as to apportionment or the measurement of the land or compensation is on the party whose lands are acquired under Section 18. In a case under Section 30, it could be either of the parties who had filed the claim before the Land Acquisition Officer or Collector claiming that they are interested in the property. In such a case, the State is not an interested party. Once an application is made under Order XXII, it will be governed by Articles 120 and 121 of the Limitation Act, 1963. The application will have to be by the legal representatives of the claimants in whom the right to sue survives and on making of such application by the legal representatives of claimants, the question of State serving notice afresh on the legal representatives would not arise, unless fresh notice is directed to be issued by the Court to legal representatives who are not represented before it. By bringing the legal representatives on record what the Court in fact directs is an amendment of the reference. Reference technically cannot be amended by the Court or by the claimant. That can be done by the Collector himself or the Land Acquisition Officer. It is in this context that the direction for amendment of the reference to bring legal representatives on record is being followed. Therefore, the practice and procedure as being followed whereby the State is directed to carry out the amendments does not need to be interferred with or disturbed.
Articles 120 and 121-See Land Acquisition Act, 1894, Sections 18,19,30 and 53.

JUDGMENT - F.I. REBELLO, J.:---When the matter came up for hearing it was contended on behalf of the State Government that when a claimant expires the application to bring heirs on record is of the legal representatives of the deceased claimant and not of the State Government. It was therefore contended that the question of the State Government bringing the legal representatives on record would not arise. Considering the contention and as it was arising in a large number of matters, I have heard learned Counsel appearing for the legal representatives of the claimant as also other Counsel who have intervened in the matter and have advanced arguments.

2. At the outset, it may be pointed out that after arguments had been concluded on behalf of the legal representatives of the claimants, their learned Counsel referred to order dated 3rd February, 1994 of a learned Single Judge of this Court wherein it appears that the Court had allowed the legal heirs to be substituted as legal heirs and representatives. There was no formal Chamber Summons taken out to bring the legal representatives on record. The question raised before me however being of larger importance and as considerable time of the Court has been taken up in hearing arguments on the said contention the point is being disposed off by this order.

3. The question that requires to be considered is two fold namely (1) on the death of the claimant what is the procedure to be followed in bringing the legal representatives on record; and (2) Once the Court passes the order allowing the legal representatives to be brought on record, whether the existing practice followed, namely directing the Government Advocate to carry out the amendment and serve the legal representatives needs to be disturbed.

4. Under the Land Acquisition Act after an Award has been made under section 12 of the Land Acquisition Act, any person aggrieved by the Award whether it be pertaining to title to the land or measurement of the land or apportionment of the compensation of fixation of market value can move the Collector under section 18 of the Land Acquisition Act. The Collector or the Land Acquisition Officer as the case may be then under section 19 of the Act has to make a reference to the Court. Similarly, under section 30, if the Land Acquisition Officer or the Collector is not in a position to decide the dispute regarding apportionment or the person to whom the compensation or any part thereof is payable, the Collector may refer such dispute to the decision of the Court. Once a reference is made whether under section 18 or section 30 then under section 20 of the Act, the Court is bound to cause a notice to be served on the claimants and all other persons interested in the objection and if the objection is with regard to the area of the land or to the amount of compensation, the Collector, By virtue of section 50(2) in any proceeding before the Collector or Court where acquisition is for a local authority or any company, the local authority or company concerned is permitted to adduce evidence for the purpose of determining the amount of compensation. In these circumstances, the notice under section 20 of the Act is also to be served by the Court on such a body for whom the land is acquired. Authority for the said proposition is found in the case of (U.P. Awas Vikas Parishad v. Gyan Devi (Dead) by L.Rs. and another)1, A.I.R. 1995 S.C. 724. Under section 53 of the Act, the provision of the Code of Civil Procedure, 1908 shall apply to all proceedings before the Court under the Land Acquisition Act save in so far as they may be inconsistent with anything contained in the Land Acquisition Act. Section 54 of the Act provides the forum for Appeal against an award.

Under section 141 of the Code of Civil Procedure the procedure in regard to suits shall be followed as far as it can be applied to applications in all proceedings in any Court of civil jurisdiction. The question therefore is whether the provisions of Or

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