Bombay High Court
The Executive Engineer Hatnoor ... vs Ramchandra @ Vikram Lotan Patil on 11 October, 2023
Bench: V. V. Kankanwadi, Abhay S. Waghwase
ca-10126-2023.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CIVIL APPLICATION NO.10126 OF 2023
IN FIRST APPEAL NO.478 OF 2023
1. Ramchandra @ Vikram s/o Lotan Patil (Died)
Through His Legal Heirs,
1a. Devkabai w/o Ramchandra Patil
Age: 75 years, Occu.: Agri.,
1b. Santosh s/o Ramchandra Patil
Age: 50 years, Occu.: Agri.,
1c. Champalal s/o Ramchandra Patil
Age; 48 years, Occu.: Agri.,
1d. Babanrao s/o Ramchandra Patil
Age: 46 years, Occu.: Agri.,
1e. Bharat s/o Ramchandra Patil
Age: 44 years, Occu.: Agri.,
1f. Ushabai d/o Ramchandra Patil
Alias Ushabai w/o Prabhakar Chaudhari
Age: 42 years, Occu.: Agri.,
1g. Sushilabai d/o Ramchandra Patil
Alias Sushilabai w/o Vasudev Patil
2. Sambhaji Tumdu Patil,
Age: 48 years, Occu.: Agri.,
3. Yogesh Dattatraya Desale,
Age: 40 years, Occu.: Agri.,
All R/o. Padalsare Tq. Amalner,
Dist. Jalgaon. .. Applicants
Versus
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::: Uploaded on - 11/10/2023 ::: Downloaded on - 12/10/2023 13:32:16 :::
ca-10126-2023.odt
1. The Executive Engineer,
Hatnoor Project Chopada,
Tq. Chopda, Dist. Jalgaon.
2. The State of Maharashtra
Through Collector, Jalgaon.
3. The Special Land Acquisition Officer
No.1/Assistant Collector, Upper Tapi
Project (Hatnoor), Jalgaon.
Dist. Jalgaon. .. Respondents
...
WITH
CIVIL APPLICATION NO.8325 OF 2023 IN FA/478/2023
WITH
CIVIL APPLICATION NO.9652 OF 2023 IN FA/478/2023
WITH
CIVIL APPLICATION NO.14864 OF 2022 IN FA/478/2023
...
Mr. H. P. Kshirsagar, Advocate for applicant.
Mr. S. B. Kadu, Advocate for respondent No.1.
Mr. A. M. Phule, APP for respondent Nos.2 and 3 - State.
...
CORAM : SMT. VIBHA KANKANWADI AND
ABHAY S. WAGHWASE, JJ.
RESERVED ON : 21st August, 2023
PRONOUNCED ON : 11th October, 2023
ORDER [Per Smt. Vibha Kankanwadi, J.] :-
. Present application has been filed for condoning the delay of 1583
days in bringing the legal representatives of applicant No.1 Ramchandra @
Vikram Lotan Patil on record of first appeal.
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ca-10126-2023.odt
2. The applicants - original claimants had filed proceedings for
enhancement in compensation before the Land Acquisition and
Rehabilitation and Resettlement Authority, Nagpur in Matter
No.2222/NSK/JLG/2018 decided on 23.11.2020. The respondent acquiring
body has preferred appeal and the matter is pending for adjudication. It
has been contended that due to financial crisis and medical problems, the
legal heirs of Ramchandra @ Vikram was not brought on record by
applicant No.2 Sambhaji Tumdu Patil. The delay is not deliberate. Sambhaji
was the only person who was looking after the matter. It has been further
stated that Ramchandra @ Vikram has been wrongly shown as party
respondent No.1. In fact, the partition had occurred on or before
2007/2008 and 7/12 extract of Gut No.22 (Khate No.16) has been mutated
showing that applicant - Sambhaji is the sole owner, however, the
respondent authority has not updated the old record. Therefore, by present
application the delay has been sought to be condoned.
3. Heard learned Advocate Mr. H. P. Kshirsagar for the applicant,
learned Advocate Mr. S. B. Kadu for respondent No.1 and learned AGP
Mr. A. M. Phule for respondent Nos.2 and 3 - State. In order to cut short it
can be submitted that the learned Advocate for the applicants and the
respondents in appeal has reiterated the contention as in the application.
4. Learned AGP appearing for respondent Nos.2 and 3 has raised
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objection stating that as per the documents those have been produced now,
said Ramchandra @ Vikram expired on 11.01.2019. If we consider the
impugned judgment by the competent authority, then it appears to have
been filed somewhere in 2018, but decided on 23.11.2020, that means said
Ramchandra @ Vikram Lotan Patil expired when the matter was before the
appropriate authority. No efforts were taken to bring his legal
representatives in the said proceedings. The enhancement that could have
been granted and actually granted has become a joint and several
decree/award. Without the legal heirs of Ramchandra @ Vikram, the
matter would not have proceeded and, therefore, by relying upon the
decision in Gurnam Singh (Died) Through Legal Representatives and others
Vs. Gurbachan Kaur (Died) By Legal Representatives and others, [2017 AIR
(SC) 2419], he submitted that the decree passed by a Court for or against a
dead person is a nullity and therefore, the application cannot be allowed.
5. At the outset, we are unable to consider as to what the applicants
exactly want to say. At one breath, it appears that even the legal heirs of
Ramchandra @ Vikram have executed General Power of Attorney in favour
of applicant No.2 Sambhaji and at another breath, it has been tried to be
stated that there was partition in 2007 and 2008, but the authorities have
not considered the change and respondent No.1 Ramchandra @ Vikram has
been wrongly shown as party respondent No.1. If we consider the
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impugned judgment passed by the competent authority, said Ramchandra
@ Vikram Lotan Patil was applicant No.1. At no point of time before the
competent authority, he has made averment that there was partition.
Sambhaji was the applicant No.2 before the competent authority also and it
appears that he had examined himself. The impugned judgment does not
say that any partition document was produced or Sambhaji had prayed for
deletion of name of Ramchandra @ Vikram. Further the document of
General Power of Attorney now produced before this Court, which is
executed on 31.05.2023, shows that the said land was the ancestral
property of Chandrakant Tumdu Patil and Ramchandra @ Vikram Lotan
Patil. They are sure that they are entitled to get the enhancement in
compensation, but only to receive that money, it is said that they are
authorizing applicant No.2 Sambhaji. That means, they are not giving up
their right to receive the compensation.
6. A fact has to be brought on record that when Ramchandra @ Vikram
expired, Sambhaji was aware about the proceedings which were filed
before the competent authority, yet he has not made any efforts to bring the
legal representatives of Ramchandra @ Vikram on record when the matter
was before the competent authority. Now, when in the appeal filed by the
acquiring body the amount has been deposited, the question arose for
distribution of amount and notice was issued to deceased. Accordingly,
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report has been received that he has expired. It appears that everybody has
woke up. Therefore, certainly conduct of the applicants is required to be
noted. Absolutely no documentary evidence has been produced to support
the contention that applicant No.2 Sambhaji was having some medical
problem from 2018 to 2022.
7. The main aspect that is required to be considered is whether non
bringing of legal representatives of deceased Ramchandra @ Vikram before
the competent authority had amounted to decree/award passed for or
against a dead person is a nullity in view of decision in Gurnam Singh
(Supra). We are also guided by the decision in Delhi Development
Authority Vs. Diwan Chand Anand and others, [2022 (10) SCC 428]. In
this case, two plaintiffs claiming to be the co-owners of the suit property
had filed suit before the Civil Court for declaration and permanent
injunction. The suit was filed for challenging the acquisition proceedings
under the Land Acquisition Act, 1984. The Trial Court had decreed the suit
in spite of preliminary issue regarding the jurisdiction of the Civil Court.
Acquiring body had then preferred appeal before the Hon'ble Delhi High
Court. The appeal was admitted, but thereafter it was found that some of
the defendants/respondents were not served as they had expired and,
therefore, by order dated 09.07.2007, the Hon'ble Delhi High Court had
dismissed the entire appeal as having abated on the point that the legal
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representatives have not been brought on record during the pendency of
the appeal. The earlier decisions were considered by the Hon'ble Supreme
Court, especially on the point of joint and indivisible decree. Special
reference was to the decision in State of Punjab Vs. Nathu Ram, [AIR 1962
SC 89]. The main question that was considered was whether the Court can
proceed with the matter against the surviving respondents/defendants and
in Delhi Development Authority (Supra), the Hon'ble Supreme Court held
that, "the question whether a Court can dealt with such matters or not, will
depend on the facts of each case and therefore no exhaustive statement can
be made about the circumstances when this is possible or is not possible. It
may, however, be stated that ordinarily the considerations which weigh
with the Court in deciding upon this question are whether the appeal
between the appellants and the respondents other than the deceased can be
said to be properly constituted or can be said to have all the necessary
parties for the decision of the controversy before the Court." Further the
basic criteria that is required to be considered is whether the right to sue
survives. Upon the facts of the case that is for challenge to the acquisition
proceedings, it was observed that the Hon'ble High Court has failed to
consider whether right to sue survives against the surviving plaintiffs or not
and, therefore, set aside the order of dismissing the appeal as a whole as
abated and remitted the matter for consideration to the High Court. Here,
we are also required to take into consideration whether the right to sue
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survives against the other claimants when one of the claimant had expired.
As aforesaid, when the claimants themselves had not come with the case
that their shares are different or defined and only one of them is the owner
thereby indicating that the other claimant is not entitled to get
compensation appears to be somewhat mistakenly taken at the Appellate
stage, but what was found by respondent No.3 the land acquisition officer
at the time of initial award was that even Ramchandra @ Vikram was
entitled to get compensation and thereafter he had come before the
competent authority for getting the said compensation enhanced. The
initial award passed by respondent No.3 was in respect of the entire
acquisition and, therefore, even the other claimant/sharer can, by giving
consent, get the entire compensation on behalf of everybody. Under the
said circumstance, when "right to get the compensation enhanced" is
concerned, it can be proceeded even without adding or bringing the legal
representatives of one of the claimants.
8. We would like to consider this position from another angle also.
When the compensation was awarded to more than one claimants and then
one of them expires, as regards the claimant who has expired, his legal
representatives are still entitled to get whatever amount that has been
awarded. The land acquisition enactment has been considered to be
benevolent provision and, therefore, the right to receive compensation
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ca-10126-2023.odt
upon the acquisition of property of a person cannot be so taken away or
curtailed. Therefore, taking liberal view, the delay requires to be condoned.
Application therefore deserves to be allowed. Here, in this case, the
present respondent No.1 in the application is the original appellant and,
therefore, directions are required to be issued to the acquiring body to
bring the legal representatives of deceased Ramchandra @ Vikram Lotan
Patil on record. Hence, the following order :-
ORDER
I) Civil Application No.10126 of 2023 stands allowed and
disposed of.
II) The delay of 1583 days in bringing legal representatives on
record stands condoned.
III) The acquiring body is directed to carry out the amendment to
that effect in the body of the appeal on or before 25.10.2023.
IV) Place the other applications for further consideration on
01.11.2023.
[ ABHAY S. WAGHWASE ] [ SMT. VIBHA KANKANWADI ]
JUDGE JUDGE
scm
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