NEUTRAL CITATION
C/SCA/17349/2023 ORDER DATED: 05/10/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 17349 of 2023
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LHS OF DECD. KANABI (CHAUDHARY) RANA VALA
Versus
DEPUTY COLLECTOR, LAND ACQUISITION AND REHABILITATION
NARMADA PROJECT
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Appearance:
MR RAKESH R PATEL(3239) for the Petitioner(s) No.
1,1.1,1.2,1.3,1.4,1.5,1.6,1.7
for the Respondent(s) No. 2
MS.FORAM TRIVEDI AGP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 05/10/2023
ORAL ORDER
1. Heard learned advocate Mr.Rakesh Patel for the petitioners and learned Assistant Government Pleader Ms.Foram Trivedi for the respondent - State.
2. By way of the present petition, the petitioners have challenged the order dated 26.08.2022 passed by the learned Principal Senior Civil Judge, Palanpur in Miscellaneous Application No.25 of 2020, rejecting the application for bringing on record the legal heirs of deceased Kanabi (Chaudhary) Rana Vala.
3. Submission of the learned advocate for the petitioners is that in the Reference Court proceedings, the trial Court has not Page 1 of 4 Downloaded on : Tue Oct 10 20:34:22 IST 2023 NEUTRAL CITATION C/SCA/17349/2023 ORDER DATED: 05/10/2023 undefined considered the application and the same is dismissed on the ground of delay. Learned advocate for the applicant has placed on record an order dated 04.10.2023 passed by the Co-ordinate Bench in Special Civil Application No.17205 of 2023 and allied matters, wherein this Court has allowed the petitions. Learned advocate for the petitioners has further submitted that the issue involved in the present petition is squarely covered by the aforesaid decision passed in Special Civil Application No.17205 of 2023.
4. Per contra, learned Assistant Government Pleader has not contradicted the order passed by the Co-ordinate Bench of this Court and submitted that this Court may pass appropriate order.
5. The learned Reference Court has taken a hyper technical approach while deciding the application. At this stage, reliance can be placed in the case of Patel Kashuben Narottambhai Vs. Special Land Acquisition Officer reported in 2009(2)GLR 1421. The relevant paras 6 to 8 reads as under:-
"6. Having heard the learned advocates for the parties, we are of the view that when the attention of the Reference Court was invited to the fact that the original claimant had expired during pendency of the reference, the Reference Court ought to have considered -
(i) whether the claimant in question at whose instance the reference was made to the Court, has expired, Page 2 of 4 Downloaded on : Tue Oct 10 20:34:22 IST 2023 NEUTRAL CITATION C/SCA/17349/2023 ORDER DATED: 05/10/2023 undefined
(ii) whether the applicants are the legal heirs of the deceased claimant, and
(iii) whether the award would be required to be modified to reflect this circumstance.
It is obvious that upon the death of the original claimant, if his heirs are not brought on record within the time stipulated under the law of limitation, the reference would abate and therefore, such application by the heirs of the deceased would have to be treated as application for setting aside abatement with a prayer for condoning delay, if any, and also an application for being brought on record as the heirs of the deceased claimant, again with a prayer for condonation of delay. The Reference Court would, thereupon, be required to modify the award in light of the findings already recorded in the common judgment covering the reference filed by the claimant who has died during pendency of the reference and the reference filed by the other claimants.
7. We have been coming across a number of cases where the Reference Court declines to entertain such applications as if the Reference Court becomes functus officio upon rendering the judgment and the award. Once the aforesaid aspects are considered, it is apparent that the Reference Court can still exercise the powers of setting aside abatement, bring on record the heirs of a deceased claimant and passing a fresh award in favour of the heirs of the deceased claimant.
8. We also make it clear that while the provisions of the Limitation Act may not be applicable to the Reference to be made under Section 18 of the Act, once made, in absence of any other provision regarding bringing on record the heirs of a claimant who dies during pendency of the reference, the provisions of Order 22 CPC and the provisions of the Limitation Act for bringing on record the heirs of the deceased party will apply."
5. In view of the totality of the facts and circumstances of the case and the order passed by the Co-ordinate Bench, the present petition application is allowed. The order dated Page 3 of 4 Downloaded on : Tue Oct 10 20:34:22 IST 2023 NEUTRAL CITATION C/SCA/17349/2023 ORDER DATED: 05/10/2023 undefined 26.08.2022 passed by the learned Principal Senior Civil Judge, Palanpur in Civil Miscellaneous Application No.25 of 2020, is erroneous and hence, the same hereby quashed and set aside.
(D. M. DESAI,J) MANOJ Page 4 of 4 Downloaded on : Tue Oct 10 20:34:22 IST 2023