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2014 DIGILAW 292 (JK)

Salal Power Station v. Karnail Singh

2014-07-10

M.M.Kumar, TASHI RABSTAN

body2014
Per M.M. Kumar, CJ. 1. The instant appeal is directed against judgment and order dated 23.09.2002 rendered by the learned Single Judge of this Court while deciding CIA No. 53/1994, holding that the appeal filed by the appellant Salal Hydroelectric Project had abated on account of the fact that the erstwhile land owner-respondents 2 & 3-Soba Ram and Daya Ram had expired on 25.11.1991 & 17.05.1987 respectively. 2. The view of the learned Single Judge on this principal issue would read as under:- "Viewed thus, prayer for leave to amend the memorandum of appeal by substituting the legal representatives of deceased-respondents Soba Ram and Daya Ram in their respective places in the memorandum of appeal is not sustainable and the same is rejected as a consequence, whereof, the appeal is incompetent because of the reasons that the impugned decree and judgment has attained finality so far as the legal representatives of the decease Soba Ram and Daya ram respondents No. 2 and 3 are concerned; the success of appeal in hand against the impugned judgment and decree will under all circumstances lead this Court to pass a decree and judgment which may be in conflict between the appellants and the legal representatives of the deceased-respondents, therefore, it would lead to the court passing of decree which will be contradictory to a decree which had become final with respect to the same subject matter between the appellants and the deceased-respondents and that memorandum of appeal without impleading legal representatives of deceased-respondents being necessary parties, cannot be said properly constituted and that the cause of the respondents before the court and the cause of deceased-respondents in the subject matter of reference in question is indivisible. (See AIR 1962 SC 89 ). Therefore, the appeal is incompetent and same is dismissed alongwith connected CMPs. However, parties are left to bear their own costs. Record be returned back to the court below alongwith copy of this order." 3. It has come on record that the appeal before the learned Single Judge was directed against the decision of the Reference Court dated 15.07.1994 which has partially accepted the claim of the erstwhile land owners, enhancing the amount of compensation to the extent of three-fold. 4. Record be returned back to the court below alongwith copy of this order." 3. It has come on record that the appeal before the learned Single Judge was directed against the decision of the Reference Court dated 15.07.1994 which has partially accepted the claim of the erstwhile land owners, enhancing the amount of compensation to the extent of three-fold. 4. It is also pertinent to notice that even at the time of decision by Reference Court, Soba Ram and Daya Ram were no more in this world as they have expired on 25.11.1991 & 17.05.1987. 5. Mrs. Sindhu Sharma, learned counsel for the appellant has vehemently argued that the proceedings under the Land Acquisition Act would not abate despite absence of all the legal heirs of the deceased persons on record. In support of her submissions, learned counsel has placed reliance on a judgment of this Court rendered in the case of "Collector Land Acquisition, Thein Dam Project, Basoli v. Sunita Sharma & ors. 2007 (1) JKJ 146 [HC]". According to the learned counsel, the provisions of Order XXII Rule (I) in any case provide that if the cause of action survives then the death of a party would not result into abatement of the appeal. She has also placed reliance on another judgment of this Court in the case of Tej Ram and others v. Collector Land Acquisition Railways, Jammu and others, 1985 KLJ 133 : JKJ Soft JKJ/ 11903. 6. Mr. M. K. Sharma, learned counsel for the respondents, has submitted that the law concerning abatement would not apply to the Reference Court but the same would be applicable when the appeal was heard by the learned Single Judge. In that regard, he has placed reliance on a Division Bench judgment of Patna High Court rendered in the case of "Bhadar Munda and Anr. v. Dhuchua Oraon, AIR 1970 Patna 209." 7. Having heard leaned counsel for the parties and perusing the record we are of the considered view that the nature of proceedings would not undergo change even after reference under Section 18 of the Land Acquisition Act has been decided. The proceedings will continue to run under the Land Acquisition Act. v. Dhuchua Oraon, AIR 1970 Patna 209." 7. Having heard leaned counsel for the parties and perusing the record we are of the considered view that the nature of proceedings would not undergo change even after reference under Section 18 of the Land Acquisition Act has been decided. The proceedings will continue to run under the Land Acquisition Act. A Constitution Bench of Hon'ble the Supreme Court, in the case of Sardar Amarjit Singh Kalra v. Pramod Gupta, (2003) 3 SCC 272 , has taken the view that Laws of Procedures are handmade of justice and to effectively assist and aid the object of doing substantial justice. A reference has also been made to Order XXII of the Code of Civil Procedure. Para 26 of the judgment in so far it is relevant is set out below in extenso: "26. Laws of procedure are meant to regulate effectively, assist and aid the object of doing substantial and real justice and not to foreclose even an adjudication on merits of substantial rights of citizen under personal, property and other laws. Procedure has always been viewed as the handmaid of justice and not meant to hamper the cause of justice or sanctify miscarriage of justice. A careful reading of the provisions contained in Order 22 of CPC as well as the subsequent amendments thereto would lend credit and support to the view that they were devised to ensure their continuation and culmination into an effective adjudication and not to retard the further progress of the proceedings and thereby non-suit the others similarly placed as long as their distinct and independent rights to property or any claim remain intact and not lost forever due to the death of one or the other in the proceedings. The provisions contained in Order 22 are not to be construed as a rigid matter of principle but must ever be viewed as a flexible tool of convenience in the administration of justice. The fact that the Khata was said to be joint is of no relevance, as long as each one of them had their own independent, distinct and separate shares in the property as found separately indicated in Jamabandhi itself of the shares of each of them distinctly. The fact that the Khata was said to be joint is of no relevance, as long as each one of them had their own independent, distinct and separate shares in the property as found separately indicated in Jamabandhi itself of the shares of each of them distinctly. We are also of the view that the High Court should have, on the very perception it had on the question of abatement, allowed the applications for impleadment even dehors the cause for the delay in filing the applications keeping in view the serious manner it would otherwise jeopardize an effective adjudication on merits, the rights of other remaining appellants for no fault of them. Interests of justice would have been better served had the High Court adopted a positive and constructive approach than merely scuttle the whole process to foreclose an adjudication of the claims of others on merits. The rejection by the High Court of the applications to set aside abatement, condonation and brining on record the legal representatives does not appear, on the peculiar nature of the case, to be a just or reasonable exercise of the Court's power or in conformity with the avowed object of Court to do real, effective and substantial justice. Viewed in the light of the fact that each one of the appellants had an independent and distinct right of his own not inter-dependent upon the one or the other of the appellants, the dismissal of the appeals by the High Court in their entirety does not constitute a sound, reasonable or just and proper exercise of its powers. Even if it has to be viewed that they had a common interest, then the interests of justice would require the remaining other appellants being allowed to pursue the appeals for the benefit of those others, who are not before the Court also and not stultify the proceedings as a whole and non-suit the others, as well." 8. A perusal of the aforesaid para would show that the nature of right whether individual or joint would not make any difference for the purposes of deciding the controversy on merits. Therefore, the view taken by the learned Single Judge holding that the cause of the deceased-respondent in the subject matter of reference was individual would not be sustainable. The learned Single Judge ought to have allowed the prayer made in CMP no. Therefore, the view taken by the learned Single Judge holding that the cause of the deceased-respondent in the subject matter of reference was individual would not be sustainable. The learned Single Judge ought to have allowed the prayer made in CMP no. 4/1995 for bringing on record the LRs. of deceased respondents 2 and 3, namely; S/Shri Shobha Ram and Rama Ram. This would have advanced the object of doing substantial and real justice to the parties. 9. We further find that there is ample support available in the judgment cited by the learned counsel for the appellant at the Bar Paras 16 and 17 of the judgment rendered in the case of Collector Land Acquisition, Thein Dam Project, Basoli v. Sunita Sharma & ors., 2007 (1) JKJ 146 [HC] are set out below in extenso: "16. Section 51 of the Land Acquisition Act and Rule 59 of the Land Acquisition Rules, contemplate the application of only those provisions of Code of Civil Procedure to the proceedings before the Court on Collector's reference, which may be necessary for completion of the proceedings. While dealing with a Collector's reference the Court may apply the provisions of Order XLVI of the code rather than treating the reference, as a suit or application under the Code of Civil Procedure. Order XXII of the Code of Civil Procedure, is one such provision of the Code, which may in the event of non impleading of legal representatives of a deceased party, result in abatement of the proceedings. Rigour of Order XXII of the Code of Civil Procedure may not, thus, be conducive to the provisions of the State Land Acquisition Act. In order to give true meaning and affect to the provisions of the Land Acquisition Act, I would hold that rigour of abatement contemplated by Order XXII of the Code of Civil Procedure would not apply to the proceedings on a Collector's reference before the Court. 17. I am supported in my view by a Single Bench judgment of this Court in "Tej Ram and ors. v. Collector, Land Acquisition Railways, Jammu and ors' reported as 1985 KLJ 133 , where His Lordship, Justice K. K. Gupta, observed as follows:- "4. The District Judge has rejected the application of the appellants mainly on the ground that it was filed late. v. Collector, Land Acquisition Railways, Jammu and ors' reported as 1985 KLJ 133 , where His Lordship, Justice K. K. Gupta, observed as follows:- "4. The District Judge has rejected the application of the appellants mainly on the ground that it was filed late. It is to be seen and noted in proceedings under the Land Acquisition Act that once a reference is made by the Collector, the Court has to make an award, no matter whether the person at whose instance the reference has been made appears or fails to appear before the Court or fails to produce evidence in support of his objections. There cannot be any dismissal or abatement of reference proceedings. In case of death of a person at whose instance the reference has been made, it becomes the duty of the Collector to supply the court the names and addresses of the legal representatives of the deceased-claimant to enable the Court to issue fresh notices to them. As it appears from the contents of the application filed by the appellants, they came to know about the proceedings vary late, it was the duty of the court to substitute them for the deceased and then to proceed in accordance with law. The question of Limitation does not come under such circumstances at all." 10. The aforesaid view conclude the controversy in favour of the appellant. Even the judgment of the Patna High Court on which reliance has been placed by the respondents, in fact, proceed on the same assumption. 11. As a sequel to the above discussion, the appeal is allowed. The judgment of the learned Single Judge is set aside. The application for impleadment of LRs is accepted as prayed. The matter is remanded back to the learned Single Judge for decision afresh on the merit of the controversy. The Office shall incorporate corrections in the cause title. 12. We request the learned Single judge to take up the matter at an early date and decide the same expeditiously, preferably within six months as the land was acquired in the year 1984.