AMIR HASAN Vs. STATE OF U P

JUDGEMENT

(1.) SABHAJEET Yadav, J. This petition is directed against the judgment and order dated 8. 11. 2002 passed by Special Judge/additional District Judge, Shahjahanpur in Reference No. 62 of 1997 Sabbir Hasan Vs. State of U. P. and others, whereby delay condonation application moved by the petitioner along with substitution application in pending reference has been rejected.

(2.) THE reliefs sought in the writ petition rest on the assertions that the plot No. 76/1, 82/1, 89/1, 90, 74 situated in Village Tilhar Qasba, District Shahjahanpur belonging to Sabbir Hasan were acquired under the provisions of Land Acquisition Act, 1894, for which the award was given by the Collector on 14. 1. 1997. Feeling aggrieved against the aforesaid award Sabbir Hasan had moved application under Section 18 of the Land Acquisition Act requiring the Collector to make reference for enhancement of compensation, which was registered as L. A. Reference No. 62 of 1997 and was pending in the Court of 9th Additional District Judge, Shahjahanpur. During the pendency of reference Sabbir Hasan had died on 25. 4. 2001 as issue-less. THE petitioner being his brother and sole heir and legal representative had no knowledge or information about the pendency of the aforesaid reference. THE petitioner is residing in Bombay since 1981 where he is engaged in hotel business and rarely visits to his permanent home town Tilhar, District Shahjahanpur. On 1. 8. 2002 one Gopal Babu who was Mukhtare-aam and pairokar of Sabbir Hasan has met him and told about the pendency of aforesaid reference. On that day for the first time the petitioner came to know about it. THEreafter the petitioner filed application for substitution of his name in place of Sabbir Hasan on 2. 8. 2002 supported by an affidavit. THE petitioner has also filed an application supported by an affidavit for condoning the delay under Section 5 of the Limitation Act in moving the aforesaid substitution application. THE application and affidavit are on record as Annexures 4 and 5 of the writ petition. It is also stated that due to typing error in the affidavits, the date of death of Sabbir Hasan was wrongly typed as 16. 1. 2001 instead of 25. 4. 2001, therefore, an application for amendment along with affidavit dated 16. 9. 2002 was filed for correction of date of death incorrectly mentioned in the substitution application and delay condonation application. It is further stated that although the D. G. C. (Civil) has filed objection dated 24. 9. 2002 but neither any affidavit was filed in support thereof nor any counter affidavit in opposition to the affidavits filed by the petitioner referred above was filed. Despite, thereof the court below vide impugned order dated 8. 11. 2002 has wrongly rejected the delay condonation application and substitution application of the petitioner on merits and on the ground of maintainability also. Hence this petition.

(3.) IN order to answer the aforesaid questions, it is necessary to examine relevant provisions of the Land Acquisition Act 1894 hereinafter referred to as "the Act" and Section 5 of the Limitation Act. Section 3 (d) of the Act defines the expression 'court' and Section 53 of the Act provides that the provisions of the Code have been made applicable to the proceedings before the court. Therefore, the said provisions are extracted as under:- " 3 (d) the expression "court" means a principal Civil Court of original jurisdiction, unless the [appropriate Government] has appointed (as it is hereby empowered to do) a special judicial officer within any specified local limits to perform the functions of the Court under this Act;" "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], shall apply to all proceedings before the Court under this Act. "