Rana Vinuben Abhaji Legal Heirs Of ... vs State Of Gujarat
2023 Latest Caselaw 834 Guj

      C/SCA/4249/2022                                  ORDER DATED: 02/02/2023




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 4249 of 2022
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     RANA VINUBEN ABHAJI LEGAL HEIRS OF DECD. RANA @ RAJPUT
                         ABHAJI GODADJI
                             Versus
                       STATE OF GUJARAT
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Appearance:
GIRISH K PATEL(2770) for the Petitioner(s) No. 1,2,3,4
MS HETAL G. PATEL, AGP for the Respondent(s) No. 1
NOTICE SERVED for the Respondent(s) No. 2,3
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 CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
                  Date : 02/02/2023
                   ORAL ORDER

1. Rule. Learned Assistant Government Pleader waives service of notice of rule on behalf of the respondent - State authorities.

2. Since a short issue is involved in the present writ petition, the same is taken up for final hearing today.

3. In the present writ petition, the petitioners have assailed the order dated 15.11.2021 passed by the Land Reference Court, Principal Senior Civil Judge at Palanpur District Banaskantha in Civil Misc. Application No.01 of 2021 below Exh.13 application in Land Acquisition Reference (L.A.R.) No.110 of 2003, rejecting the Exh.13 application seeking condonation of delay and setting aside the abatement and further joining the present petitioners, who are the legal heirs of the original claimant - deceased Rana @ Rajput Hadaji Godadji in LAR No.110 of 2003.

4. The brief facts giving rise to the present petition are as under : -

C/SCA/4249/2022 ORDER DATED: 02/02/2023

4.1 It is the case of the petitioners that they are the legal heirs of the claimant deceased - Rana @ Rajput Hadaji Godadji, who preferred the Land Reference Case No.110 of 2003 before the Principal Senior Civil Judge, Palanpur.

4.2 It is the case of the petitioners that the Reference Court has passed the judgment and award dated 30.06.2016, which was not in their knowledge and when they came to know about the judgment, they preferred an application below Exh.13 seeking condonation of delay and also to implead them as legal heirs of the deceased claimant Rana @ Rajput Hadaji Godadji, however by the impugned order, the Court below has rejected the said application on the ground of delay.

5. At the outset, learned advocate Mr.Grish K. Patel, has submitted that the issue is squarely covered by the decision of the Division Bench of this Court in the case of Patel Kashuben Narottambhai vs. Special Land Acquisition Officer, 2009 (2) GLR 1421 and also by the decision of the Division Bench dated 24.12.2008 passed in Special Civil Application No.12586 of 2008. He has further submitted that in an identical application which was filed by the other claimants, the same Court i.e. learned 2nd Additional Senior Civil Judge, Palanpur District Banaskantha had allowed the application for joining such legal heirs of the claimant(s) by condoning the delay. Thus, it is submitted that the impugned order may be quashed and set aside and the matter may be remanded to the concerned Court to decide the application of the legal heirs of the claimant.

C/SCA/4249/2022 ORDER DATED: 02/02/2023

6. Per contra, learned AGP has submitted that the impugned order may not be required any interference since the same is appropriately passed, as there has been huge delay in preferring such application by the petitioners claiming themselves to be the legal heirs of the deceased claimant Rana @ Rajput Hadaji Godadji. Thus, she has submitted that the writ petition may not be entertained.

7. I have heard the learned advocates appearing for the respective parties.

8. It is noticed by this Court that by the impugned order, the Court below has rejected the application of the petitioners for setting aside the abatement under the provisions of Order 22 Rule 9 of the Code of Civil Procedure, 1908 and thus, as a consequence thereof, their application filed below Exh.13 for bringing them legal heirs of the claimant of deceased Rana @ Rajput Hadaji Godadji, who had preferred LAR No.110 of 2003 claiming the compensation, has been allowed by the Reference Court vide judgment and award dated 30.06.2016. It is the case of the petitioners that they were not aware about the land reference case and hence, when they were informed about the amount, which was deposited pursuant to the aforesaid judgment and award, they preferred an application below Exh.13, which has been rejected by the concerned Court below on the ground of delay.

9. It would be apposite to refer to the observations made by this Division Bench of this Court in the case of Patel

C/SCA/4249/2022 ORDER DATED: 02/02/2023

Kashuben Narottambhai (supra). The Division Bench after examining the provisions of the Land Acquisition Act, 1894 as well as the provisions of the Code of Civil Procedure, 1908, more particularly Order 22 as well as the Limitation Act, has observed thus "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,

(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

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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.

For taking the above view, we have derived support from the decision of the Constitution Bench of the Apex Court in Sardar Amarjit Singh Kalra (Dead) by LRs Vs. Pramod Gupta (Smt) (Dead) by LRs, (2003) 3 SCC 272 = AIR 2003 SC 2588.

9. The Apex Court has held in Para 34 of the above decision that wherever the plaintiffs or appellants are found to have distinct, separate and independent rights of their own and for the purpose of convenience or otherwise, joined together in a single litigation to vindicate their rights, the decree passed by the Court thereon is to be viewed in substance as the combination of several decrees in favour of one or the other parties and not as a joint and inseverable decree. Hence the common judgment and award dated 21.2.2007 would continue to operate in case of all the other claimants, and only the award in case of the deceased claimant would be required to be modified after setting aside abatement and after bringing on record the heirs of the deceased claimant.

In Paras 26, 31 and 33, the Apex Court made the following observations :-

"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 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 in an effective adjudication and not to retard the further progress of the proceedings and thereby nonsuit 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. ... ..... ... We are also of the view that the High Court should have, on the very perception it had on the question of abatement,

C/SCA/4249/2022 ORDER DATED: 02/02/2023

allowed the applications for impleadment even dehors the cause for the delay in filing the applications keeping in view the serious manner in which it would otherwise jeopardize an effective adjudication on merits, the rights of the other remaining appellants for no fault of theirs. Interests of justice would have been better served had the High Court adopted a positive and constructive approach than merely scuttled 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 the Court to do real, effective and substantial justice. ... ... ... ... ... ...

31. But, in our view also, as to what those circumstances are to be, cannot be exhaustively enumerated and no hard- and-fast rule for invariable application can be devised. With the march and progress of law, the new horizons explored and modalities discerned and the fact that the procedural laws must be liberally construed to really serve as handmaid, make it workable and advance the ends of justice, technical objections which tend to be stumbling blocks to defeat and deny substantial and effective justice should be strictly viewed for being discouraged, except where the mandate of law inevitably necessitates it. ... ... ... ... ... ..."

"33.... ... ... ... ... ... As far as possible, courts must always aim to preserve and protect the rights of parties and extend help to enforce them rather than deny relief and thereby render the rights themselves otiose, "ubi jus ibi remedium" where there is a right, there is a remedy being a basic principle of jurisprudence. Such a course would be more conducive and better conform to a fair, reasonable and proper administration of justice."

10. We accordingly allow the petition and direct that upon an application being made on affidavit along with the death certificate of the deceased - Patel Narottambhai Joitaram and with the necessary prayers for setting aside abatement with a prayer for condonation of delay and application for being brought on record as the heirs of the deceased with a prayer for condonation of delay, the Reference Court shall entertain such application and consider and decide the same in light of the principles laid down herein and by the Apex Court in Sardar Amarjit Singh Kalra (Dead) by LRs, AIR 2003 SC

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2588 and modify the award and pay compensation amount to the heirs of deceased - Patel Narottambhai Joitaram."

10. The Division Bench has observed that if the original claimant had died 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, (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.

11. The Division Bench has also considered the decision of the Supreme Court in the case of Sardar Amarjit Singh Kalra vs. Pramod Gupta, AIR 2003 SC 2588, wherein the Apex Court has held that the provisions of Order 22 are not to be construed as a rigid matter of principle but must be viewed as a flexible tool of convenience in the administration of justice. It is further observed by the Apex Court that the interest of justice would have been better served if the High Court adopted a positive and constructive approach than merely scuttled the whole process to foreclose an adjudication of the claims of others on merits.

12. In the present case, the petitioners are claiming to be the legal heirs of the original claimant deceased Rana @ Rajput Hadaji Godadji, who passed away and the Reference Court vide judgment and award dated 30.06.2016 has granted the compensation, which is to be paid on the loss of land of deceased claimant Rana @ Rajput Hadaji Godadji,

C/SCA/4249/2022 ORDER DATED: 02/02/2023

13. Since the valuable land of the claimant / applicants is lost when such land is acquired, they are being awarded appropriate compensation by the Reference Court and after such compensation is awarded, the legal heirs of the claimant can claim such compensation provided that they are successful in establishing that he is entitled to such compensation being the legal heirs of the deceased claimant Rana @ Rajput Hadaji Godadji.

14. Under the circumstances, the writ petition is allowed. The impugned order dated 15.11.2021 passed by the Principal Senior Civil Judge at Palanpur, District Banaskantha in Civil Misc. Application No.01 of 2021 below Exh.13 application in Land Acquisition Reference (L.A.R.) No.110 of 2003 is quashed and set aside and the matter is remanded to the Reference Court to decide the application below Exh.13 preferred by the legal heirs of the deceased claimant in LAR No.110 of 2003 in light of the observations made by this Court as well as the Division Bench of this Court in the case of Patel Kashuben Narottambhai (supra). The reference Court shall decide the same within a period of eight (08) weeks from the date of receipt of writ of order of this Court. Rule is made absolute to the aforesaid extent.

Direct Service is permitted.

(A. S. SUPEHIA, J)

MB/ 50