Miss Hundaka Shadap vs . The District Collector, West ...
2022 Latest Caselaw 445 Meg

     Serial No. 04
     Supp. List

                       HIGH COURT OF MEGHALAYA
                           AT SHILLONG

CRP. No. 8 of 2020
                                   Date of Decision: 12.08.2022
___________________________________________________________

Miss Hundaka Shadap               Vs.       The District Collector, West Jaintia
                                            Hills District &Anr.


Coram:
         Hon'ble Mr. Justice H.S.Thangkhiew, Judge.

Appearance:
For the Petitioner/Appellant(s) :           Mr. J.Shylla, Adv. with
                                            Mr. M.L.Nongpiur, Adv.

For the Respondent(s)             :         Mr. V.K.Jindal, Sr. Adv. with

Mr. V.Kumar, Adv. for R 2.

i)       Whether approved for reporting in               Yes/No
         Law journals etc:
ii)      Whether approved for publication                Yes/No
         in press:

                         JUDGMENT AND ORDER

1. The instant Civil Revision Petition is directed against the impugned

orders dated 13-12-2019 and 19-12-2019, passed by the Court of the

Special Judicial Officer, West Jaintia Hills District, Jowai, dismissing the

condonation and substitution applications filed by the petitioner and

thereafter disposing of the main LA. (J) Case No. 211 of 2015 on the

ground of abatement on the death of the claimant.

2. The brief facts of the case is that by Notification No. RDA.

34/81/378 dated 28-01-1999, under Section 4 of the Land Acquisition Act,

1894, the Government of Meghalaya notified that the land of the

petitioner's uncle (L) Isi Shadap and others was needed by the respondent

No. 2 for construction of the Kupli Hydel Project at Saphai Village, Elaka

Raliang, Jaintia Hills District. Thereafter, after subsequent notification

under the Act, the petitioner's uncle was called upon to receive the

compensation for the acquired land: 3600 sq.mtrs. amounting to Rs.

76,442/- ; 1110 sq.mtrs. amounting to Rs. 23,570/- ; 1575 sq.mtrs.

amounting to Rs. 3,22,058/- ; and 1500 sq.mtrs. amounting to Rs. 31,251/-

respectively. The petitioner's uncle accepted the compensation amount

along with other land owners under protest and filed applications under

Section 18 of the Land Acquisition Act, 1894 for reference to court for

enhancement. Thereafter, on the reference being made, the petitioner's

uncle filed his claim petition in the year 2015, before the court of the

Special Judicial Officer, Meghalaya, Shillong. The said claim petition, on

the separation of the Judiciary from the Executive in West Jaintia Hills

District, was transferred to the court of Special Judicial Officer, West

Jaintia Hills District, Jowai, and was renumbered as LA. (J) Case No. 211

of 2015. The petitioner's uncle expired on 18-05-2016, and the petitioner

at that point of time had no knowledge of the pendency of the land

acquisition case, and became aware of the same, only after she received a

notice dated 08-09-2017, whereafter, she filed a substitution application

before the court on May, 2018. As there was a delay of 644 days in filing

the substitution application, the petitioner also filed a condonation

application which was registered as Misc. Case No. 25 of 2018.

3. The respondent No. 2 to these applications for substitution and

condonation, filed a show cause primarily on the ground that Section 53 of

the LA Act, 1894, provided that the provisions of the Code of Civil

Procedure would be applicable to the proceedings before the Special

Judicial Officer and as such, it was contended that the substitution

application would have to be filed within the stipulated period of 90 days,

and the same not having been done so, the suit had abated.

4. The learned court below then vide the impugned order dated 13-12-

2019, dismissed the application on the ground that it was not satisfied with

the reasons given by the petitioner and thereafter, subsequently, vide the

impugned order dated 19-12-2019, disposed of the main case being LA (J)

Case. No. 211 of 2015, on the ground that the case had abated on the death

of the claimant. The petitioner being aggrieved is therefore before this

Court by way of the instant revision application.

5. It has been contended by Mr. J. Shylla, learned counsel for the

petitioner that the learned court below failed to appreciate that proceedings

under the LA Act, 1894, is not a suit and that it cannot abate. Learned

counsel refers to the judgment passed in Abdul Karim vs. State of Madhya

Pradesh reported in AIR 1964 MP 171, which he submits was upheld by

the Supreme Court in Khazan Singh vs. Union of India, reported in (2002)

2 SCC 242. It was also submitted by the learned counsel that the Limitation

Act is not applicable to proceedings under the LA Act, 1894, and reference

has been made to the judgment of Alihusain Abbashbhai & Ors. vs.

Collector, Panch Mahals of the Gujarat High Court, reported in AIR

1967 Guj 118. It has been further argued that the petitioner had no

knowledge about the pendency of the case until receipt of notice dated 14-

10-2019, and that the learned court below failed to appreciate that the

respondents never filed any show cause objecting to the substitution and

condonation applications on the lack of sufficient cause, but had only filed

objections on technical issues dealing with abatement.

6. In continuation of his arguments, the learned counsel for the

petitioner has submitted that the learned court below failed to appreciate

that only a meagre amount had been paid as compensation for the land

depriving the heirs of valuable property, and had lost sight of the fact that

the LA Act, 1894, is a socially beneficial Act and thus, must be construed

and interpreted liberally to protect the rights of claimants whose lands have

been acquired. He then closes his submissions by praying that the

impugned orders be set aside and allow the legal heirs of the claimants to

be substituted so that they may pursue their rightful claims.

7. Mr. V.K. Jindal, learned Senior counsel assisted by Mr. V. Kumar,

learned counsel for the respondents submits that Order 22 Rule 9 (3) of the

CPC has to be taken into consideration in the instant case, inasmuch as, it

clearly stipulates that the provisions of the Indian Limitation Act, 1877

(now the Limitation Act, 1963) shall apply. Thus, he submits as Section 53

of the LA Act, 1894, has made the CPC applicable to proceedings under

the LA Act, 1894, by application thereof, there is no question as to why the

Limitation Act should not apply. Learned Senior counsel submits Order 22

Rule 9 (3) was inserted by Amendment Act of 1976 with effect from 01-

02-1977, and the judgments relied upon namely, Abdul Karim (supra) and

Alihusain Abbasbhai (supra) being judgments prior to the amendment of

the CPC will have no application. However, he fairly concedes that a

reference once made must be answered. He therefore submits that the no

interference is called for with the impugned orders.

8. The issues in the instant Civil Revision application being limited to

the question as to whether the claimant for compensation must be deemed

to be a plaintiff in view of Section 53 of the LA Act, 1894, which makes

the CPC applicable to the proceedings under Section 18 of the LA Act,

1894, will directly be dealt with by this Court without alluding any further

to the other facts and circumstances of the case.

9. Section 53 of the LA Act, 1894, stipulates that the Code of Civil

Procedure is to apply to proceedings under the LA Act, 1894 and reads as

follows:

"53. Code of Civil Procedure to apply to proceedings before Court - Save in so far as they may be inconsistent with anything contained in this Act, the provisions of the Code of Civil Procedure, 1908 (5 of 1908), shall apply to all proceedings before the Court under this Act."

In a proceeding under Section 18 and on a plain reading of Section

53, it appears that, Order 22 of the CPC would ordinarily be applicable, to

bring on record the legal representatives of the deceased claimant. Should

the application under Order 22 be time barred, it would necessarily also

require that an application for condonation be filed in terms of the

Limitation Act, 1963. The issue as to whether a proceeding under Section

18 of the LA Act, 1894, is to strictly follow the rigours of the CPC and

whether a claim petition can abate, therefore comes into question.

10. To address the above noted proposition, notwithstanding Order 22

Rule 9 (3) which was inserted by Amendment Act of 1976 with effect from

01-02-1977, reference can be made to the judgment of Abdul Karim vs.

State of Madhya Pradesh reported in (1966) ILR Madhya Pradesh Series

page 237 (AIR 1964 MP 171). In this judgment, the issues raised in the

present petition have been addressed in detail and in the view of this Court,

still constitutes good law. The relevant paragraphs are quoted herein below:

"The sole question that arises for determination in this appeal is whether when a reference is made under Section 18 at the instance of a person interested, who has not accepted the award made by the Land Acquisition Officer, it can abate subsequently if the person interested dies and his legal representatives do not apply for being brought on record. Put briefly, the question to consider is whether Order 22 of the Code of Civil Procedure and articles 171 and 176 of the Limitation Act apply to proceedings under section 18 of the Act. Now, there can be no doubt that Order 22 in terms applies only to suits and appeals, the trial and hearing of which are regulated by the Code of Civil Procedure. The word "suit'' has not been defined in the Code of Civil Procedure. But, as has been held by the Privy Council in Hansraj Gupta v. Dehra Dun M.E.T. Co. Ltd. (1), the word "suit" ordinarily means, and apart from some context must be taken to mean, a civil proceeding instituted by the presentation of a plaint. The Privy Council case no doubt related to the meaning of the word "suit" as used in the Limitation Act. But that definition is very much in point here as the question whether a suit has or has not abated under Order 22, Rule 4, must be decided with reference to the fact whether an application for bringing on record the legal representatives of the deceased plaintiff was or was not made within the time prescribed by article 176 of the Limitation Act. It is thus clear that for the purpose of Order 22 a "suit" must be taken as one meaning a suit instituted by the presentation of a plaint as laid down in the Explanation to Section 3 of the Limitation Act.

It is obvious enough that reference proceedings under section 18 are not suit proceedings. An application for reference under section 18 is not made by the person interested to the Court but to the Collector asking him to make a reference to the Court. The reference is made not by the party but by the Collector albeit at the instance of the party. If the reference proceedings had been suit proceedings, then there would have been no necessity of inserting in the Act section 53 laying down that

"Save in so far as they may be inconsistent with anything contained in this Act, the provisions of the Code of Civil Procedure shall apply to all proceedings before the Court under this Act." So also there would have been no need to create the fiction embodied in section 26(2) that an award made under section 18 shall be deemed to be a decree within the meaning of section 2, clause (2) of the Code of Civil Procedure. If the proceedings under section 18 of the Act had been proceedings in a suit, then the Code of Civil Procedure would have applied automatically and the award under that provision would have been even without the aid of fiction a decree within the meaning of section 2(2) of the Code of Civil Procedure. It is noteworthy that section 53 of the Act has not the effect of making "all proceedings before the Court under the Act suit proceedings". All that it does is to apply to the proceedings before the Court under the Act the provisions of the Code of Civil Procedure unless any of the provisions is "inconsistent with anything contained in the Act". It is one thing to say that the Code of Civil Procedure will apply to the proceedings under the Act and very much another to say that they are suit proceedings and consequently the Code of Civil Procedure will apply to them. Section 53 cannot be read as creating a fiction for deeming "proceedings before the Court under the Act" as proceedings in any suit. It is thus plain that Order 22 of the Code of Civil Procedure cannot be applied to proceedings under section 18 of the Act taking those proceedings as suit proceedings in reality or fictionally under the Code of Civil Procedure. Its applicability to proceedings under section 18 of the Act can only be by virtue of section 53 and subject to the limitation contained in that section. The limitation is that the provision of the Code of Civil Procedure intended to be applied must not be inconsistent with anything contained in the Act. For the purpose of inconsistency it is not necessary that there should be an express provision to the contrary in the Act itself. It would be enough if the applicability of a provision of the Code of Civil Procedure to any proceedings before the Court under the Act would be incompatible with the nature of the proceedings.

The decision, therefore, of the question whether Order 22 can be applied to proceedings under section 18 of the Act must depend on the construction and proper understanding of the proceedings under section 18 and of the scope of the proceedings. In this connection, the first material provision to notice is section 12 which says of an award made by the Land Acquisition Officer that "such award shall be filed in the Collector's office and shall, except as hereinafter provided, be final and conclusive evidence, as between the Collector and the persons interested,....." The finality of the award is destroyed when a reference under section 18 is made. Once there is a proper reference under section 18 before the Court, the final order made by the Court on the reference is the award, no matter whether by the decision of the Court the claimant has been given an additional amount of compensation or given no additional amount or whether the Acquisition Officer's award is upheld or not upheld for some other reason. As has been said in Assistant Development Officer, Trombay v. Tayaballi (1), the acquiring officer's award is strictly speaking not an award at all but an offer. If his award is not accepted and the matter is taken to Court by way of a reference under section 18, then the final award is the one made by the Court. Once a reference is made, the Court is required under section 20 of the Act to give notice of the hearing of the objections to the award made by the Land Acquisition Officer, inter alia, to the person at whose instance the reference has been made and to all persons interested in the objection, except to those who have consented to receive the payment of compensation awarded without any protest. Sections 21, 22 and 23 deal with the scope of the enquiry before the Court and the determination of the amount of compensation. Section 24 enumerates the matters which the Court shall not take into consideration in determining the compensation. The next section contains rules as to amount of compensation.

Finally, section 26 requires the presiding Judge to make an award specifying the amount awarded under clause first of section 23(1) and also the amounts (if any) respectively awarded under each of the other

clauses of the same sub-section, together with the grounds of awarding each of the said amounts. It is thus clear that once a reference is made under section 18, the Court has to render an award under section

26. The reference proceedings cannot be dismissed for any reason. So to do would be to refuse to award compensation for land compulsorily acquired under the Act and for which the Act requires that compensation has got to be awarded. It is no doubt true that in proceedings under section 18 the burden of proving that the award made by the Land Acquisition Officer is inadequate or erroneous is on the party objecting to the award and at whose instance the reference has been made. If he succeeds in showing prima facie that the award is inadequate, then the Government must support the award by producing evidence. If, on the other hand, he fails to appear in the Court or to produce any evidence, the award made by the Land Acquisition Officer will stand. But the Court then has to make the award made by the Land Acquisition Officer as its own award under section 26. If, then, as we think, once a reference under section 18 is made, 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 objection, it is clear that there cannot be any dismissal or abatement of a reference proceeding. It follows, therefore, that the application of Order 22 of the Code of Civil Procedure is altogether inconsistent with the very nature and scope of the proceedings under section 18."

(Emphasis Supplied)

11. In the present case, the petitioner had sought substitution in place of

her father the deceased claimant. In view of the position that a reference

made under Section 18 of the LA Act, 1894, has to be answered by the

Court notwithstanding the substitution or non-substitution of the claimants;

by application of the ratio of the above noted judgment, which has

addressed the issues which are in contention herein, there cannot be

abatement. The legal heirs of the claimant therefore, will necessarily on

their application for substitution be substituted in place of the deceased

claimant. Order 22 Rule 9 (3) which was inserted by Amendment Act of

1976, will also therefore have no application to the proceedings under

Section 18 of the LA Act, 1894, as the application of the Limitation Act,

1963, will be inconsistent with the scheme of the LA Act, 1894, which is a

beneficial legislation.

12. Abdul Karim (supra) has also found approval in the judgment of

Khazan Singh vs. Union of India reported in (2002) 2 SCC 242 wherein,

it has been held that reference to court following non-acceptance of award

cannot be dismissed in default and that the Civil Court is duty bound to

pass an award in answer to the reference. Para 6 of the judgment which is

relevant is quoted herein below:

"6. Section 18 of the Act empowers a person interested in the land to move by a written application to the Collector requiring that the matter be referred for determination of the Court, whether his objection be to the measurement of the land, the amount of compensation, the person to whom it is payable, or the apportionment of the compensation among the persons interested. If the application for reference is in order the Collector is bound to make a reference of it to the Court. Section 20 of the Act enjoins on the Court to "proceed to determine the objection". The Court shall after holding such inquiry as may be

necessary pass an award. Section 26 of the Act reads thus:

"26. Form of Awards.- (1) Every award under this Part shall be in writing signed by the Judge, and shall specify the amount awarded under clause first of sub-section (1) of Section 23, and also the amounts (if any) respectively awarded under each of the other clauses of the same sub-section, together with the grounds of awarding each of the said amounts.

(2) Every such award shall be deemed to be a decree and the statement of the grounds of every such award a judgment within the meaning of Section 2 clause (2) and Section 2 clause (9), respectively, of the Code of Civil Procedure, 1908."

13. In view of the judgments as stated, and the facts of the instant case

being similar on the points of law as raised, the Civil Revision application

is allowed and the impugned orders dated 13-12-2019 and 19-12-2019, are

hereby set aside and quashed.

14. Before parting with the records, it is noted that during the pendency

of the instant revision application, the original petitioner, Smti. Meryba

Shadap expired, and has been substituted by Miss Hundaka Shadap, vide

order dated 01-12-2021, passed in MC(CRP). No. 7 of 2021. The court of

Special Judicial Officer, West Jaintia Hills, is therefore to consider the

fresh substitution application, should it be made, and proceed with the

matter to answer the reference as made under Section 18 of the LA Act,

1894.

15. No order as to costs.

16. Lower court record to be transmitted back immediately.

Judge

Meghalaya 12.08.2022 "Samantha PS"