ALIHUSEIN ABBASBHAI Vs. COLLECTOR PANCHMAHALS

JUDGEMENT

(1.) This Revision Application raises a short but interesting question of law namely whether a Reference under sec 18 of the Land Acquisition Act abates if the applicant dies and his heirs do not make an application for bringing themselves on record within a period of 90 days from the date of the death of the applicant. The dispute in this Revision Application concerns land bearing Survey No. 56B-1/1 admeasuring 1 acre 25.12 gunthas situate in Dohad in the Panchmahals District. The land belonged to three brothers namely Abbasbhai Hatimbhai and Taherbhai each having 1/3 share in the land. In or about 1956 the land was acquired by the State Government under the provisions of the Land Acquisition Act for the purpose of State Transport Corporation and after going through the procedure prescribed by law the Collector Panchmahals District made an award dated 23rd September 1957 offering compensation at the rate of Rs 2.62 nP. per square yard for the land. All the three brothers were dissatisfied with the offer contained in the award of the Collector and therefore two of them namely Hatimbhai and Taherbhai made a joint application and Abbasbhai the third brother made a separate application to the Collector for a reference under sec. 18 of the Land Acquisition Act. Hatimbhai and Taherbhai claimed compensation at the rate of Rs. 12/per square yard while Abbasbhai claimed compensation at the rate of Rs. 14-62 nP. per square yard. On the application of Abbasbhai a reference was made by the Collector to the District Court on 26th September 1957 and it was numbered Ref. LAR. 9/57 while the reference made on the application of Hatimbhai and Taherbhai was numbered Ref. LAR. 11/57. Both the references were sent by the District Court to the Court of the Civil Judge Senior Division for disposal. The notice of the date fixed for the hearing of Ref. LAR. 9/57 was thereafter issued by the learned Civil Judge for service on Abbasbhai but before it could be served on Abbasbhai died as a result of an accident on 10th October 1957 with the result that it was returned unserved by the Bailiff on 27th November 1957. The petitioners who are the heirs and legal representatives of Abbasbhai thereupon addressed a letter dated 2 January 1957 to the Collector requesting the Collector to bring the names of the petitioners on record as heirs and legal representatives of Abbasbhai in Ref. LAR. 9/57. To this letter according to the petitioners there was no reply and the petitioners therefore did nothing further in the matter until 11th August 1960 when they came to know for the first time on reading the report in the daily newspaper Navbharat that Ref. LAR. 11/57 was disposed of by the learned Civil Judge and additional compensation of Rs. 9.38 per square yard was awarded to each of Hatimbhai and Taherbhai. On learning about the disposal of Ref. LAR. 11/57 the petitioners made inquiries as to what had happened to Ref. LAR. 9/57 made at the instance of Abbasbhai and on making inquiries they learned that in Ref. LAR. 9/57 the Collector had made an application dated 12th January 1960 that the Reference had abated since no application to bring the heirs and legal representatives of Abbasbhai on record had been made within a period of 90 days from the date of death of Abbasbhai and on such application the learned Civil Judge had made an order dated 30th July 1960 dismissing the reference as having abated. The petitioners thereupon made an application to the Court for setting aside the abatement and there were two grounds on which the application was supported. The first ground was that the order dismissing the Reference as having abated was illegal and invalid since a reference under sec. 18 of the Land Acquisition Act could not abate on the death of the applicant even if no application to bring the heirs of the applicant on record was made within a period of 90 days from the date of death of the applicant and the second ground was that in any event the petitioners had sufficient cause for not making an application to bring themselves on record within the said period. Both the grounds were however negatived by the learned Civil Judge and the learned Civil Judge rejected the application. Hence the present Revision Application by the petitioners.

(2.) Of the two grounds urged before the learned Civil Judge Miss Daboo learned advocate appearing on behalf of the petitioners urged only the first since the second was a ground which even if well-founded could not be raised in revision. Miss Daboo confined herself to the first ground and urged that the order passed by the learned Civil Judge on 30th July 1960 dismissing the Reference as having abated was illegal and invalid and the learned Civil Judge was therefore in error in rejecting the application for setting aside the abatement. Mr. A. D. Desai learned Assistant Government Pleader appearing on behalf of the Collector of course disputed the validity of this contention but he also urged in addition that in any event this contention was not open to the petitioners since the Revision Application was not directed against the order dismissing the reference as having abated. The Revision Application he argued was directed only against the order rejecting the application for setting aside the abatement and so far as that order was concerned it was patently correct for the application in effect sought to obtain a review of the order dismissing the reference as having abated though there was no valid ground for review available to the petitioners. Realising the force of this preliminary contention Miss Daboo applied for leave to amend the revision application by seeking relief against the order dismissing the reference as having abated. The application was granted by me but that was not the end of the difficulties for Miss Daboo. The amended revision application in so far as it was directed against the order dismissing the reference as having abated was clearly time barred and Miss Daboo had therefore to make an application for condoning the delay. The application was resisted by Mr. A. D. Desai on behalf of the Collector but in view of the fact that even under the unamended Revision Application the relief substantially sought was against the order dismissing the reference as having abated and the defect was merely one of form in the sense that there was no specific prayer for setting aside the said order I condoned the delay and entertained the amended Revision Application.

(3.) The main challenge of the petitioners on the amended Revision Application was directed against the order dismissing the reference as having abated and there were three grounds on which the challenge was founded. Miss Daboo first urged that the reference could not be said to have commenced before the Collector until the notice of the reference was served on the various persons specified in sec 20 and since Abbasbhai died before notice of the reference could be served on him there was no pending proceeding in the reference at the date of death of Abbasbhai and there was accordingly no question of applicability of Order 22 Rule 3 of the Code of Civil Procedure and there could be no abatement of the reference even if no application was made by the petitioners to bring themselves on record in place of Abbasbhai. It was the duty of the Collector argued Miss Daboo to apply to the Court for bringing the petitioners on record as heirs and legal representatives of Abbasbhai and it was only after they were brought on record and notice of the reference was served on them that the proceeding in the reference could be said to have commenced before the Court. Miss Daboo next contended and that was her second contention that in any event Order 22 Rule 3 of the Code of Civil Procedure did not apply to a reference under sec. 18 and the Reference did not therefore abate even though no application was made to bring the petitioners on record as heirs and legal representatives of Abbasbhai. The last contention of Miss Daboo was that even if the proceeding could be said to have commenced on the receipt of the reference by the Court and Order 22 Rule 3 applied to such reference there was no time limited by law for the making of an application to bring the heirs of a deceased applicant on record Article 171 of the Indian Limitation Act 1908 being inapplicable and there was accordingly no abatement of the reference even if the petitioners failed to make an application to bring themselves on record within a period of 90 days from the date of the death of Abbasbhai. These were the three contentions urged on behalf of the petitioners and in the strength of these contentions it was submitted that the order passed by the learned Civil Judge dismissing the reference as having abated was illegal and invalid and was required to be set aside.