Civil Rev. App. No.902 of 1989

8th March, 1999

Petitioner Counsel: Shri V.J. DIXIT
Respondent Counsel: Shri P.R. PATIL,Shri D.V. TELE,A.G.P.

Cases Cited:
Ambey Devi Va. State of Bihar., A.I.R.1996 SC 1513 [Para 6]
Govind Vs. Savitribai. , 1986 Mh.L.J. 844 [Para 6]

JUDGMENT

JUDGMENT :- This Civil Revision Application is directed against the order passed by the Joint Civil Judge, Senior Division, Jalgaon dated 17.11.1989 below Exhibit 20 which was filed by the present revision petitioner. The land survey No.50 situated at village Manyarkhede, has been acquired by the State by the Land Acquisition Proceeding No.LAQ/HP/SR/27/1980 and award under section 11 was passed in the said proceeding on 12.9.1986. The amount of compensation was fixed at Rs.62529/-. The said amount has been disbursed on 6.10.1986. The land S.No.5O at the time of acquisition was standing in the name of the present petitioner and the respondent no.1, and therefore, in the award the amount was shown as against the names of both the petitioner and the respondent no.l. The petitioner and the respondent no. I are, nephew and uncle respectively. The said amount of Rs.62259/- was paid by joint cheque in the name of the petitioner and the respondent, no. 1. When the award was passed, there was no dispute between the petitioner and the respondent in respect of apportionment of the said amount, and therefore, both the petitioner and the respondent have accepted the amount of compensation by joint cheque issued by the Land Acquisition Officer and it is reported by the learned counsel for the parties to this Court that thereafter the said cheque was deposited in the joint account of the petitioner and the respondent no.1 which was operative either or.

2. Thus from the record, it appears that the property was a joint property, and therefore, the compensation amount was jointly issued which was accepted by the parties jointly and deposited the amount in the joint account of the petitioner and the respondent no.l

3. However, the respondent no.l thereafter has filed the reference under section 18 of the Land Acquisition Act bearing Reference No.330 of 1988 for enhancement of the amount of compensation. However, in the said Land Acquisition Reference, the respondent no.1 made a claim of enhancement in respect of the total land acquired. In the said reference, the respondent no. I has not joined the petitioner as party respondent. It is further to be noted that the Court which decided the said land reference has also not issued the notice of the proceeding to the petitioner and thus the said land reference came to be decided in the absence of the petitioner. The learned Joint Civil Judge, Senior Division, by the award dated 27.7.1989 enhanced the amount of compensation to Rs.2,05,625/- and directed to pay the solatium at the rate of 30 percent; compounded at the rate of 12 percent per annum. It as further directed that the interest at the rate of 9 per cent per annum for the period of one year from the date of possession and thereafter at the rate of 15 percent per annum till the amount of compensation is fully paid. It is also directed that the amount of compensation paid under the award shall be deducted. After the decision of reference under section 18 of the Land Acquisition Act the Execution Petition No. 231 of 1989 was filed by the respondent no. 1 for recovery of the amount of Rs.9,20,080.65 Ps. The Acquisition Officer has deposited this amount in the Court on 6.10.1989. However, the revision petitioner filed an application at Exhibit 20 on 7.10.1989 as a third person claiming that he is entitled to get half of the said amount of compensation. He further filed an application at Exhibit 22 in the said Darkhast requesting to attach the said amount. However on 7.10.1989 itself the amount of Rs.4,60,030/- i.e. half of the amount of compensation was directed to be paid to the respondent no.1 and half of the amount was kept with the Court which is later on deposited in the Nationalised Bank as per the -orders of this Court passed on .26.8.1994.

4. The application Exhibit. 20 by which the half of the amount was claimed by the petitioner was heard on merits and was disposed of by the order dated 17.11.1989 and it was rejected and against this order, the present Civil Revision Application has been filed.

5. The only question which arises for consideration is whether a person who is not a party to the reference made under section 18 of the Acquisition Act. can file an application for apportionment of the enhanced amount of compensation in an Execution Petition pending before the Court; and Secondly what should be the appropriate forum for such a person to get adjudicated his claim.

6. No doubt the Civil Court gets the jurisdiction as a result of the reference being made by the Collector and/or the Acquisition Officer either as. provided under section 18 or under section 30 of the Land Acquisition Act and even though to the proceeding which are referred to the Civil Court, the procedure applicable is that of Code of Civil Procedure, still the same will not be applicable when we are considering the issue of addition of parties either Under Order 1 Rule 10 of the Code of Civil Procedure or for any other purpose, because any other procedure other than the procedure which has been provided under the Land Acquisition if followed will be inconsistent with the provisions of the Land Acquisition Act as has been held by the Apex Court in the case reported in A.I.R.1996 SC 1513 in the case of Ambey Devi Vs. State of Bihar and in 1986 Mh.L.J. 844 in the case of Govind Vs. Savitribai.

7. In view of the aforesaid decision, as the petitioner was not a party to the Land Acquisition Reference, he was not entitled to appear before the Civil Court. In the present matter, the petitioner appeared in the proceeding after the reference under section 18 has been adjudicated and when the execution petition was pending. In the said execution petition also he was not a party and therefore he is not entitled to appear because Section 47 of the Code of Civil Procedure, after amendment, does not permit such parties to appear in the proceedings. In fact those persons who are parties to the original proceedings before the Civil Court which passed the decree, their legal representatives and the purchasers of the said property as defined in Section 47 are only entitled to appear while the question of discharge, satisfaction etc. of the decree is to be considered under section 26(2) the award passed by the Civil Court: in a reference under section 18 is a decree and therefore , the provisions of Section 47 of the C. P. Code will cover up the said decree. In the result the present petitioner is not entitled to appear before the Executing Court for the purposes of apportionment of the enhanced compensation. The ultimate analysis shows that the application which was filed by the present petitioner before the Executing Court by Exhibit 20 was without jurisdiction and the Executing Court should not have entertained such an application. Therefore appropriate remedy which was available to the present petitioner was to file a suit in view of the provisions of Section 51 second proviso and -to seek stay orders in that proceedings. However, admittedly such a separate suit was not filed. Mr. Dixit, learned counsel concedes to the position that the petitioner should have filed the suit for adjudication of his right for the apportionment of the amount, and. therefore, submits that he is advising his client petitioner to file the suit before the Civil Court of competent jurisdiction to decide the claim of the present petitioner in respect of the amount of Rs.4,60,040/- which is the subject matter of the present Civil Revision Application. He only expressed that the time has been consumed in prosecuting this remedy namely the application Exhibit 20 and thereafter the present Civil Revision Application. However, in view of the provisions of Section 14 of the Indian Limitation Act, if the party has prosecuted with due diligence another civil proceedings in good faith, in that eventuality he is entitled to exclude such time while calculating the period of limitation. Whether the present petitioner has bonafide and in good faith prosecuted the application Exhibit 20 and this Civil Revision Application will be a question to be considered by the Civil Court while excluding the period of limitation to entertain the suit. No doubt, here is a petitioner who had no notice of the proceedings under section 18 of the Land Acquisition Act for enhancement of the compensation, however, the moment the petitioner got the information he has approached the Civil Court but the fact of bonafides or good faith are matters to be adjudicated by the Civil Court while excluding the said period consumed in prosecuting another remedy namely the present Civil Revision Application and thereafter to exclude the said period while calculating the period of limitation for the suit. As the statement has been made by the learned counsel for the petitioner, I find it appropriate that the petitioner may allowed to file such a suit if he desires, within a reasonable time.

8. Under the above referred circumstances, the following order is passed:

(i) The orders which have been passed by learned Civil Judge, Senior Division, as Executing Court below Exhibit 20 in Regular Darkhast No.231 of 1989 are hereby quashed and set aside as the said Court was not competent and has no jurisdiction to entertain application and decide it.

(ii) The petitioner is at liberty to file appropriate suit as provided in Section 31(2) proviso within a period of three months. In case such a suit is filed by the petitioner plaintiff shall also file alongwith the said suit an application for ad-interim injunction and that application shall be disposed of by the civil Judge, Senior Division, within a period of one month from the date of presentation of the suit.

(iii) The interim orders passed by this Court for keeping the amount in the bank shall be operative for a period of four months from the date of this order.

(iv) Certified copy expedited.

(v) Office is directed to return the Record and Proceedings of the Land Acquisition Officer to the Government Pleader's office. The office is further directed to send the Record and proceedings which have been called from the District Court, Jalgaon, from time to time.

(vi) Civil Revision Application is disposed of accordingly.

(vii) No order as to costs.

Order accordingly.