Research › Search › Judgment

Madhya Pradesh High Court · body

2001 DIGILAW 583 (MP)

Dhapubai v. Union of India

2001-08-08

A.K.GOHIL

body2001
JUDGMENT This order shall also govern the disposal of Misc. Appeal No. 909 of 2000 (Smt. Dhapubai and others v. Union of India and another). The appellants have filed this Misc. Appeal under Order 43 Rule 1, CPC against the order dated 20.4.2000, passed by the II ADJ, Mhow, in Land Acquisition Reference Case No. 541/94, thereby rejecting the applications filed on behalf of the appellants under Order 22 Rule 9 read with section 151, CPC, for setting aside abatement and also an application under Order 22 Rule 3, CPC, for bringing LRs of claimants and also an application u/s 5 of the Limitation Act for condonation of delay. Undisputedly, reference proceedings u/s 18 of the Land Acquisition Act were pending before the Court below. During the pendency of the reference, Mangilal, sole claimant, died on 4.6.1999. Thereafter on 12.11.1999, the legal heirs of the claimant Mangilal filed applications under Order 22 Rule 3 read with section 151, CPC, for bringing LRs on record alongwith application under Order 22 Rule 9 for setting aside abatement and application u/s 5 of Limitation Act for condonation of delay. These applications were heard and decided by the reference Court by order dated 20.4.2000. The reference Court rejected the aforesaid applications simply on the ground that the appellant has failed to make out a case for condonation of delay as the application was barred by limitation for more than two months and no sufficient cause was assigned in the application against which the applicant has preferred this miscellaneous Appeal. Learned counsel mainly raised the ground that the provisions of Order 22, CPC, are not applicable to the reference proceedings and in support of his submission, he cited two Division Bench decisions reported in 1964 JLJ 205 (Abdul Karim v. State) and in 1978(1) MPWN 456 (Collector, Raipur v. Smt. Rajkumari) and the reference Court has committed an illegality in rejecting the applications for condonation of delay, for bringing the LRs on record and to set aside the abatement. The submission was that the applicants are rustic and illiterate villagers and they were not knowing about the legal position. The applications were not delayed much, therefore, delay ought to have been condoned. The submission was that the applicants are rustic and illiterate villagers and they were not knowing about the legal position. The applications were not delayed much, therefore, delay ought to have been condoned. Learned counsel for appellant relied on the decisions reported in the case of State of M.P. v. S.S. Akolkar, reported in AIR 1996 SC 1984 , Rama Ravalu Gavade v. Sataba Gavadu Gavadu (dead) through LRs and another, reported in 1997 Supreme Appeals Reporter (SC) 61 and Ram Sumiran and others v. D.D.C. and others, reported in AIR 1985 SC 606 , in which it has been held that in cases of setting aside abatement, the liberal approach should be considered because the applicants belong to rural area and are illeterate, they do not know the law, therefore, in such circumstances the application should not have been dismissed. In reply, Shri Neema, learned senior standing counsel for Union of India, does not dispute the submissions made by Shri Maheshwari. Having heard the parties, I am of the view that according to the aforesaid two Division Bench decisions cited above, in which it has been held that if the proceedings u/s 18 of the Land Acquisition Act are not suit proceedings, in the very nature of these proceedings, provisions of Order 22 cannot be applied to them. An application for reference u/s 18 is not made by the person interested to the Court but to the Collector asking him to make a reference to the Court. The reference is made not by the party but by the Collector albeit at the instance of the party. If the reference proceedings had been suit proceedings then there would have been no necessity of inserting the section 53 laying down' that 'Save in so far as they were not inconsistent with anything contained in the Act,' the provisions of CPC shall apply to all proceedings before the Court of this Act. So also there would have been no need to create the fiction embodied in section 26(2) that an award made under section 18 shall be deemed to be a decree within the meaning of section 2, clause (2) of the Code of Civil Procedure. So also there would have been no need to create the fiction embodied in section 26(2) that an award made under section 18 shall be deemed to be a decree within the meaning of section 2, clause (2) of the Code of Civil Procedure. According to the aforesaid Division Bench, the provisions of Order 22 of CPC are not applicable to the proceedings u/s 18 of the Act and if the person at whose instance reference has been made, dies during the pendency, then the Court must issue fresh notice to his heirs. The legal representatives of the deceased would clearly be persons interested in the objections lodged by the deceased against the award made by the Land Acquisition Officer. In view of the aforesaid two Division Bench decisions, it is very much clear that in the reference proceedings u/s 18 of the Land Acquisition Act, the provisions are of special nature, therefore, they are not within the purview of the suit and the provisions of Order 22 cannot be applied to them. In the impugned order under challenge, the trial Court has mentioned a Fun Bench decision of Delhi High Court in the case of Mst. Ram Piari v. Union of India (AIR 1978 Delhi 129), in which it has been held that provisions of Order 22 are applicable to the reference proceedings. Some other High Courts are also of the same view that the provisions of Order 22 are applicable to the reference proceedings but the result of all the dicta, including this Court, are same that LRs of the claimants be substituted in the reference cases. More so, the Division Bench decisions of this High Court are binding on me and the trial Court has committed an illegality in not considering the Division Bench decision of this High Court. So far as the question of the condonation of delay and also for abatement and for bringing LRs on record, constantly it is the view of our own High Court as well as of Supreme Court that in such cases where the applicants are rustic and illiterate villagers, approach of Court should be liberal in considering the applications for condonation of delay and the delay should be liberally condoned and this should be treated a sufficient ground for condonation of delay. It is true that in view of the aforesaid observation that the provisions of Order 22 are not applicable to the reference proceedings and it was not necessary for the applicant to file the applications and it was obligatory on the Court itself to issue notices to the LRs of the deceased claimant. However, the reference Court has not examined the matter legally and properly and has also not considered the application for condonation of delay objectively considering the spirit and ratio decided in the various decisions; accordingly, this appeal is allowed and the impugned order passed by the reference Court, dated 20.4.2000, is hereby set aside and the application filed by the appellants for condonation of delay, setting side the abatement and for bringing the LRs on record are hereby allowed. The delay is condoned and the abatement is also set aside. It is directed that the LRs be brought on record. The case is remanded to the reference Court for deciding the same on merits. Parties to bear their own costs. Parties shall appear before reference Court. Record be returned back immediately before said date positively. Retain this order in the record of Misc. Appeal No. 908/2000 and place copy of the same in the record of Misc. Appeal No. 909/2000 for ready reference.