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2012 DIGILAW 1686 (RAJ)

Santosh Kumar v. Grasim Industries Ltd.

2012-08-01

PRAMIL KUMAR MATHUR

body2012
MATHUR, M.—The District Collector, Chittorgarh has accepted the application moved by the present respondent under Section 31(2) read with section 16 of the Land Acquisition Act, 1894 for delivering the possession of the disputed land to him. 2. The appellants claimed that the respondent has submitted an application under Section 89 Rule 4 of the Rajasthan Land Revenue Act, 1956 (in short to be referred as `the Act') for the right of mineral & mines over the land bearing khasra No. 247 & 905/205 located at Village Karunda Tehsil Nimbahera. District Chittorgarh of which the appellants are the khatedar tenants. The learned District Collector, Chittorgarh has determined the compensation to the tune of Rs. 13,30,303/- vide order dated 24.1.2006. Thereafter, on the application filed by the respondent learned District Collector has directed by judgment dated 31.3.2009 to hand over the possession of the disputed land to the present respondent. Aggrieved by that judgment, appellants filed an appeal under Section 75 of `the Act' before the learned Revenue Appellate Authority, Chittorgarh, who has dismissed the appeal by impugned judgment dated 10.11.2009. Hence, appellants had to file this second appeal. 3. I have heard the learned counsels for the parties and perused the record. 4. The learned counsel for the appellants urged that original order of the learned District Collector, Chittorgarh dated 24.1.2006 was passed against the father of appellants Shri Ramswaroop. Thereafter, the respondent filed the application under Section 31(2) read with section 16 of the Land Acquisition Act, 1894 before the District Collector, Chittorgarh which was decided on 31.3.2009 against the deceased Ramswaroop who died on 22.5.2008 without impleading his legal representatives on record; hence, the judgment passed by learned District Collector on 31.3.2009 was passed against the dead person which, in the eye of law, has no legal sanctity & void ab initio. Respondent was fully aware of the factum of the death of Ramswaroop in the separate proceedings pending before the superior courts against the order passed on 24.1.2006. He further submitted that appellants have not been given fair opportunity to contest their case as the case was preponed by the first appellate court. The first appellate court has utterly failed to follow the mandatory provision of section 80 of `the Act' and rejected the appeal without calling for the record. Therefore, the impugned judgment requires to be quashed. He further submitted that appellants have not been given fair opportunity to contest their case as the case was preponed by the first appellate court. The first appellate court has utterly failed to follow the mandatory provision of section 80 of `the Act' and rejected the appeal without calling for the record. Therefore, the impugned judgment requires to be quashed. The counsel for the appellants has submitted following judgments in support of his contentions reported in: (i) 2009 RRT (1) page 139 (ii) 2009 RRT (1) page 345 (iii) 2009 RBJ (16) page 483 (iv) 2009 RRT (2) page 1370 (v) 2009 RRT (2) page 931 (vi) 2007 RRT (1) page 125 (vii) 2009(2) DNJ (Raj.) page 1063 (viii) 2001 RBJ (8) page 174 (ix) 2010 RBJ (16) page 32 5. On the other hand, learned counsel for the respondent vehemently submitted that against the order passed under Section 89(4) of `the Act', no appeal can be preferred before the Board. Impugned judgment cannot be assailed under the provisions of `the Act'. Appellants have not supplied any information to the court about the death of khatedar Ramswaroop. It was the duty of his counsel which he failed to observe. Learned appellate court has passed the impugned judgment after giving the fair opportunity of hearing to the appellants. The appeal was heard & decided in the presence of the advocate of Ramswaroop. He has drawn the attention of the court by submitting that the order passed under the Land Acquisition Act cannot be challenged before the revenue court; therefore, the appeal be dismissed. He has placed reliance on the following citations in support of his submissions: (i) AIR 1995 Rajasthan Page 133 (ii) AIR 1981 Rajasthan page 89 (iii) AIR 1996 Madhya Pradesh page 243 (iv) AIR 1982 Supreme Court page 1253 (v) 2008 RBJ (15) page 541 (vi) 1993 RRD page 479 (vii) 1987 RRD page 527 (viii) 2009 RRT (1) page 19 6. Having heard the counsels, this court is of the opinion that the order dated 24.1.2006 passed by the learned District Collector, Chittorgarh was assailed before the Revenue Appellate Authority, Chittorgarh and before the appellate court, an application was filed on 19.8.2008 under Order 22 Rule 4 for substituting the legal representatives of the deceased Ramswaroop on record and that appeal is being contested by the respondent. As soon as the appellants have filed the application under Order 22 Rule 4 on 19.8.2008, the respondent became fully aware in the year 2008 about the demise of Ramswaroop, but in the application submitted under Section 31(2) read with section 16 of the Land Acquisition Act, 1894, the respondent has not substituted the appellants as legal representatives of the deceased Ramswaroop and chose to proceed further against the dead person Ramswaroop in spite of the knowledge of death of Ramswaroop which culminates the judgment dated 31.3.2009. The Hon'ble Supreme Court in various judicial pronouncements including the judgment reported in 2009 RBJ (16) page 483 has consistently held that judgment against a dead person is nullity. Though it is argued that the counsel of deceased Ramswaroop was duty bound to intimate the death of Ramswaroop to the court as well as to the respondent, which he failed to do; but when in the separate proceedings between the same parties, respondent has got the knowledge of demise of Ramswaroop, then it was incumbent upon him to have lit against present appellants instead of deceased Ramswaroop or apply for substituting the legal representatives of the sole non-applicant deceased Ramswaroop and if he fails to do so and the court passes an order, then it becomes a nullity because the order was passed against a dead person. 7. Another contention is that by the impugned judgment dated 10.11.2009, the appeal filed by the appellants was dismissed. In this regard, section 80 of `the Act' in clear terms says that appellate authority may reject the appeal but for rejection, there are two conditions attached thereto: (i) the record will be called for & (ii) the appellant shall be heard. Without complying with these two conditions, an appeal cannot be rejected ordinarily. In the case under hand, the appeal was dismissed on merit and it is evident that record of the inferior court was not called for; therefore, without due observance of the imperative provisions of section 80 of `the Act', order of rejection of appeal is bad in the eye of law. 8. In the case under hand, the appeal was dismissed on merit and it is evident that record of the inferior court was not called for; therefore, without due observance of the imperative provisions of section 80 of `the Act', order of rejection of appeal is bad in the eye of law. 8. It also transpires that albeit the application filed by the respondent before the learned District Collector for delivering the possession was designed & styled under Section 31(2) read with section 16 of the Land Acquisition Act, 1894 but the real intention of the respondent is to proceed on the next path available under Section 89(5) and the main relief sought by the application was to obtain the possession of the disputed land which can be done obviously under Section 89(5) of `the Act' only. Resultantly, the submission of the learned counsel for the respondent that revenue court has no jurisdiction is meaningless & has no significance as mere nomenclature under the different Act cannot change the nature of application. Moreover, no proceeding under Land Acquisition Act was pending with respect to the disputed land and the original proceedings was commenced only under provisions of section 89(4) of `the Act'; hence, revenue courts are fully empowered to exercise its jurisdiction. 9. It will not be out of place to mention here that this is not the appeal filed being dissatisfied with the order passed under Section 89(4) of `the Act', therefore, the citations produced by the learned counsel for the respondent about section 89(4) of `the Act' are conveniently distinguishable from the facts of the present case and supply no force as the impugned judgment was passed under Section 89(5) of `the Act.' 10. Therefore, above narrated grounds are sufficient to allow this second appeal and the objections raised by the learned counsel for the respondent are not sustainable. Hence, this appeal is allowed, judgments of both the courts below are set aside and the matter is remanded to the learned District Collector, Chittorgarh with the direction to dispose of the matter afresh on merits after taking legal representatives of deceased Ramswaroop on record and providing them a reasonable opportunity of hearing. Pronounced in open court.