# Amir Hasan v. State of U.P. and others

- **Citation:** (2008) 3 ILRA 701
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-07-30
- **Case number:** Civil Misc. Writ Petition No. 4009 of 2003
- **Bench:** Sabhajeet Yadav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/amir-hasan-v-state-of-u-p-and-others-41136
- **Pages:** 12

## Headnote

Land Acquisition Act 1894-Section 54Applicability of the provisions of C.P.C.-
during
pendency
of
reference
proceeding-applicant died-brother of the
applicant
doing
hotel
business
at
Bombay-rarely visits his home townafter
getting
information
moved
substitution application with application
for condonation of delay-rejection by
District Judge as provisions of Limitation
Act not applicable-held-illegal contrary
to view settled by High Court as well as
Supreme Court-liberal view ought to
have adopted-instead of remitting the
matter before Court below-delay in filing
substitution condoned-reference Court
directed
to
decide
substitution
application on merit.

Held: Para 18

Now coming to the fact of the case, it
appears that the impugned order was
passed by the court below/reference
court rejecting the delay condonation
application of petitioner moved along
with
substitution
application
under
Order XXII Rule 3 for bringing the legal
representative and heir of the claimant
Sabbir Hasan on record on the ground
that the same was not maintainable
before the court, in my opinion, view
taken by the court below is contrary to
the view taken by me, therefore, cannot
be sustained. The rejection of delay
condonation application of the petitioner
moved
along
with
substitution
application on merits too appears to be
erroneous. I am of the considered
opinion that liberal view ought to have
been taken by the court below while
considering the cause shown by the
petitioner
in
moving
such
belated
application. The specific case taken by
the petitioner was that he was residing
in Bombay in connection of his Hotel
business and rarely visits his home town
702 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
at Tilhar in district Shahjahanpur and he
was
not
aware
of
the
proceeding
pending in court below, therefore, in
absence of rebuttal of his statement
made in affidavit on oath and in absence
of contrary material brought on record,
the correctness of his statement could
not be doubted by the court below. In
my opinion, the view taken contrary to it
cannot be sustained. In given facts and
circumstances of the case, the cause
shown
in
moving
the
belated
substitution application by the petitioner
appears to be sufficient and, therefore,
the
delay
caused
in
moving
such
application
ought
to
have
been
condoned. Accordingly, the delay caused
in moving substitution application by the
petitioner
is
hereby
condoned.
The
impugned order dated 8.11.2002 passed
by the court below is hereby quashed.
The court below is directed to decide the
substitution application moved by the
petitioner on merit by restoring the
aforesaid reference proceeding on file.
Case law discussed:
A.I.R. 1970 Madras 184, A.I.R. 1967 Gujarat
118, A.I.R. 1982 Alld. 394, AIR 1978 Delhi
129, AIR 1989 Delhi 97, AIR 1991 Alld. 241,
A.I.R. 1979 SC 404, AIR 2003 SC 2302.

## Text

_Characters 0–39,866 of 41,141. This is a partial read: ask again with offset=39866 for what follows._

3 All] Amir Hasan V. State of U.P. and others
701
purpose
can
be
expanded
for
reconsideration by the court on the
application of the insurance Company and
giving opportunity of hearing to all the
parties to arrive at a right conclusion
independently without being influenced
by the, prima facie, observation of the
Court.

8. Hence in totality, we dispose of
the appeal at the stage of admission
without imposing any costs giving liberty
to the appellant to make an application
before the Tribunal which would be heard
upon notice and giving opportunity of
hearing to all the parties but under no
circumstances
the
payment
of
compensation to the claimants should be
stalled.

9. Incidentally, the appellantinsurance company prayed that the
statutory deposit of Rs.25,000/- made
before this Court for preferring this appeal
be remitted back to the concerned Motor
Accidents
Claims
Tribunal
as
expeditiously as possible in order to
adjust the same with the amount of
compensation to be paid to the claimants,
however, such prayer is allowed.

Appeal disposed of.
----------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.07.2008

BEFORE
THE HON'BLE SABHAJEET YADAV, J.

Civil Misc. Writ Petition No. 4009 of 2003

Amir Hasan

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri. M.A. Quadeer
Sri. Shamim Ahmad

Counsel for the Respondents:
S.C.

Land Acquisition Act 1894-Section 54Applicability of the provisions of C.P.C.-
during
pendency
of
reference
proceeding-applicant died-brother of the
applicant
doing
hotel
business
at
Bombay-rarely visits his home townafter
getting
information
moved
substitution application with application
for condonation of delay-rejection by
District Judge as provisions of Limitation
Act not applicable-held-illegal contrary
to view settled by High Court as well as
Supreme Court-liberal view ought to
have adopted-instead of remitting the
matter before Court below-delay in filing
substitution condoned-reference Court
directed
to
decide
substitution
application on merit.

Held: Para 18

Now coming to the fact of the case, it
appears that the impugned order was
passed by the court below/reference
court rejecting the delay condonation
application of petitioner moved along
with
substitution
application
under
Order XXII Rule 3 for bringing the legal
representative and heir of the claimant
Sabbir Hasan on record on the ground
that the same was not maintainable
before the court, in my opinion, view
taken by the court below is contrary to
the view taken by me, therefore, cannot
be sustained. The rejection of delay
condonation application of the petitioner
moved
along
with
substitution
application on merits too appears to be
erroneous. I am of the considered
opinion that liberal view ought to have
been taken by the court below while
considering the cause shown by the
petitioner
in
moving
such
belated
application. The specific case taken by
the petitioner was that he was residing
in Bombay in connection of his Hotel
business and rarely visits his home town
702 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
at Tilhar in district Shahjahanpur and he
was
not
aware
of
the
proceeding
pending in court below, therefore, in
absence of rebuttal of his statement
made in affidavit on oath and in absence
of contrary material brought on record,
the correctness of his statement could
not be doubted by the court below. In
my opinion, the view taken contrary to it
cannot be sustained. In given facts and
circumstances of the case, the cause
shown
in
moving
the
belated
substitution application by the petitioner
appears to be sufficient and, therefore,
the
delay
caused
in
moving
such
application
ought
to
have
been
condoned. Accordingly, the delay caused
in moving substitution application by the
petitioner
is
hereby
condoned.
The
impugned order dated 8.11.2002 passed
by the court below is hereby quashed.
The court below is directed to decide the
substitution application moved by the
petitioner on merit by restoring the
aforesaid reference proceeding on file.
Case law discussed:
A.I.R. 1970 Madras 184, A.I.R. 1967 Gujarat
118, A.I.R. 1982 Alld. 394, AIR 1978 Delhi
129, AIR 1989 Delhi 97, AIR 1991 Alld. 241,
A.I.R. 1979 SC 404, AIR 2003 SC 2302.

(Delivered by Hon'ble Sabhajeet Yadav, J.)

1. 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
3 All] Amir Hasan V. State of U.P. and others
703
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. Sri M.A. Qadeer, learned senior
counsel appearing for the petitioner has
submitted that by virtue of the provisions
of Section 53 of the Land Acquisition
Act, 1894 the provisions of Code of Civil
Procedure
are
applicable
to
all
proceedings before the Court under the
Land Acquisition Act, unless they are
inconsistent
with
any
provisions
contained under the said Act. He further
submitted that the provisions of Order
XXII of the Code of Civil Procedure
which pertains to substitution of heirs and
legal representatives of parties cannot be
said to be in any manner inconsistent or
contrary to any provisions of Land
Acquisition Act, therefore, the same will
apply with its full force. He further
contended
that
any
substitution
application, if moved after expiry of
period of limitation as prescribed under
Article 120 of the Schedule appended to
the Limitation Act 1963, the delay
condonation application under Section 5
of the Limitation Act can be moved along
with
such
substitution
application.
Besides
this,
since
the
reference
proceeding is a proceeding before the
court contemplated under the Land
Acquisition Act, therefore, there can be
no doubt about the applicability of the
provisions of Section 5 of the Limitation
Act
in
moving
such
substitution
application
in
reference
proceedings
before the Court. Accordingly, the same
can be admitted after the prescribed
period of limitation, if the applicant
satisfies the court that he had sufficient
cause for not making such application
within prescribed period of limitation.
Thus, learned counsel for the petitioner
has submitted that the impugned order
passed by the court below is highly
misconceived and erroneous, as such is
not sustainable in the eye of law.

4. In view of the aforesaid
contention of the learned counsel for the
petitioner, the question which arises for
consideration before this Court is whether
the provision of Order XXII C.P.C. are
applicable
in
reference
proceeding
pending before the Court and whether the
provisions of the Limitation Act would
also apply to such proceeding before the
Court under the Land Acquisition Act?

5. 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
704 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
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."

6. At this juncture it would also be
useful to extract the provisions of Section
5 of the Limitation Act, 1963, which
empowers the court to admit an appeal or
application moved beyond prescribed
period as under:-

"5. Extension of prescribed period
in certain cases.- Any appeal or any
application, other than an application
under any of the provisions of Order XXI
of the Code of Civil Procedure, 1908, may
be admitted after the prescribed period, if
the appellant or the applicant satisfies the
Court that he had sufficient cause for not
preferring the appeal or making the
application within such period."

Explanation.- The fact that the appellant
or the applicant was misled by any order,
practice or judgment of the High Court in
ascertaining or computing the prescribed
period may be sufficient cause within the
meaning of this section."

7. At this juncture, it is also
necessary to point out that the question in
issue has drawn attention of various High
Courts and this Court also at several
occasions, it would be useful to refer
some of them, hereinafter.
8. In State of Madras Vs.
Alameluthayammal A.I.R. 1970 Madras
184, a Division Bench of Madras High
Court has held that in view of Section 53
of the Act the Court hearing reference
under Section 18 of the Act has power to
allow the amendment of the pleadings in
reference to certain extent. The pertinent
observations made in para 13 of the
decision are extracted as under:-

"13. ......... Section 53 of the Act
provides that save in so far as they may
be inconsistent with anything contained in
the Act, the provisions of the Civil
Procedure Code shall apply to all
proceedings before the Court under the
Act. The Court hearing a reference under
Section 18 of the Act has power to allow
an amendment of the pleadings in a
reference. But the jurisdiction to allow
such
amendment
cannot
extend
to
increasing the claim to a figure beyond
that which was claimed before the
Collector, as it would be against the
provisions of Section 25 (1) of the Act.
The appellants did not take any objection
to the reference under Section 18 of the
Act and the learned Government Pleader
took exception only to the grant of
compensation in excess of the amounts
claimed in the counter statement of the
claimants."

9. Similar view has been taken by
Gujarat High Court in case of Alihusain
Abbasbhai and others Vs. Collector,
Panch Mahals A.I.R. 1967 Gujarat 118,
wherein it was held that by virtue of
Section 53 of the Act the provisions of
C.P.C. are applicable to all proceedings
before Court under the Act unless such
provisions in the Code are inconsistent
with
anything
contained
in
Land
Acquisition
Act.
The
aforesaid
3 All] Amir Hasan V. State of U.P. and others
705
observation was made in context of
applicability of the provisions of Order
XXII Rule 3 of the Civil Procedure Code
and it was held that there is nothing under
the
Act
contrary
to
the
aforesaid
provisions of the Code. The pertinent
observations made in paras 4 and 5 of the
decision are extracted as under:-

"4. ........ The reference becomes a
proceeding before the Court as soon as it
is received, taken on file and numbered
and it is because it is a proceeding
already initiated before the Court that the
Court can fix a day for its hearing and
give notice of such date to the various
persons
mentioned
in
Section
20.
Moreover, it is difficult to appreciate how
notice of a reference can go to the
collector who is in the position of a
defendant before the reference has
commenced. Ordinarily notice of a
proceeding would go to the opposite party
after the proceeding has commenced
before the Court: unless the proceeding is
before the Court, there would be no
question
of
giving
notice
of
the
proceeding by the Court to the opposite
party. The contention of the petitioners
that the proceeding in the reference had
not commenced at the date of the death of
Abbasbhai since no notice was served on
him before his death is, therefore, clearly
unsustainable and it must be concluded
that the proceeding in the reference
commenced before the Court as soon as
the reference was received, taken on file
and numbered and it was pending when
Abbasbhai died.

5. The next question that arises is
whether Order 22 Rule 3 applied to the
Reference for it is only if that provision
applied to the reference that the question
of abatement could arise. Now Section 53
which
is reproduced above clearly
declares that save in so far as they may be
inconsistent with anything contained in
the Act, the provisions of the Code of
Civil Procedure shall apply to all
proceedings before the Court under the
Act and since a reference under Section
18 is a proceeding before the Court under
the Act, Order 22 Rule 3 must apply to the
reference
unless
that
provision
is
inconsistent with anything contained in
the Act. The question which, therefore,
calls for consideration is whether there is
anything in the Act which is inconsistent
with Order 22 Rule 3. ............ It is,
therefore, clear that the nature of a
reference under Section 18 is not such
that it must necessarily result in the
making of an award by the Court and
when I use the word "award" I mean it in
the sense of an award determining the
amount of compensation for the land. The
reference is not different from an ordinary
civil proceeding in which the applicant
who is in the position of a plaintiff objects
to the amount of compensation offered in
the award of the Collector and claims
additional compensation. If the applicant
fails to appear at the hearing of the
reference, the reference must by force of
Order 9 Rule 8 which is made applicable
by Section 53 be dismissed for want of
appearance
like
any
other
civil
proceeding and in the same way if the
applicant does not produce evidence in
support of the objection, the reference
must be dismissed just as any other civil
proceeding would be dismissed for want
of evidence in support of the claim. When
the reference is dismissed the award of
the Collector stands and the applicant can
always accept the offer contained in such
award. Now if the reference can be
dismissed for default of appearance of the
applicant or for want of evidence before
706 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
the Court, there is no reason why Order
22 Rule 3 should not be applicable to the
reference. If Order 22 Rule 3 does not
apply to the reference, what is to happen
when the applicant dies during the
pendency of the reference? The right to
claim additional compensation which the
applicant is agitating in the reference
would certainly survive to his heirs from
making an application to the Court for
bringing themselves on record in place of
the applicant. It is difficult to see why
instead of permitting the heirs to follow
the ordinary and simple procedure of
applying to the court for bringing
themselves on record in place of the
applicant
and
proceeding
with
the
reference, the law should insist that the
Collector who is the opposite party must
supply the names of the heirs to the Court
and the Court should issue notices to
heirs as persons interested in the
objection and then proceed with the
reference. There is clearly nothing in the
nature
of
the
reference
which
is
inconsistent with Order 22 Rule 3 subrule (1) and the provision contained in
Order 22 Rule 3 sub-rule (1) can be
applied to the reference without causing
any anomaly or inconsistency. Order 22
Rule
3
sub-rule
(2)
provides
for
abatement of the proceeding if no
application for bringing the heirs on
record is made within the time limited by
law and the question may, therefore, well
arise whether there is any time limited by
law for the making of an application to
bring the heirs of a deceased applicant on
record in a pending reference. If there is
a time prescribed by law for making such
application and such application is not
made within the time so prescribed, the
reference would abate leaving the award
of the Collector unaffected. But if no time
for making such application is prescribed
by law, the application can obviously be
made at any time and there would be no
abatement of the reference & in that event
as soon as the application is made, the
Court would bring the heirs of the
deceased
applicant
on
record
and
proceed with the reference. Order 22 Rule
3 sub-rule (2) is also, therefore, not in any
way inconsistent with the nature of the
reference. The provision enacted in both
the sub-rules of Order 22 Rule 3 can be
made applicable without creating any
inconsistency or disharmony and it must,
therefore, be concluded that Order 22
Rule 3 applies to a reference under
Section 18."

10. In Smt. Katori Devi and other
Vs. Collector, Aligarh A.I.R. 1982 Alld.
394, a Division Bench of this Court has
held that while disposing of a reference
under Section 18 of the Act the District
Judge functions as court. The provisions
of C.P.C. have been specifically made
applicable to the proceeding before the
court by Section 53 in so far as they are
not inconsistent with anything contained
in the Land Acquisition Act. While
dealing with the applicability of the
provisions of Order IX Rule 8 C.P.C. it
was held that there is no provision in
Land Acquisition Act which may be
inconsistent with the provisions of Order
IX C.P.C., therefore, Order 9 C.P.C.
applies to the proceedings before the
District Judge on a reference made under
Section 18 of the Act and as such District
Judge has power to dismiss the reference
for default of appearance by the claimant
and consequently when the reference is so
dismissed, an application under Order IX
Rule 9 to set aside the order of dismissal
would
be
maintainable.
For
ready
reference the pertinent observations made
by the Division Bench of this Court in
3 All] Amir Hasan V. State of U.P. and others
707
paras 6, 7 and 11 of the decision are
extracted as under:-

"6. It is thus evident that the learned
District Judge functions as a Court while
disposing of a reference under Section 18
of the Act The provisions of the Civil P.C
have specifically been made applicable to
such proceedings by Section 53 of the Act.
Ex facie the provisions of O.IX C.P.C.
will be applicable to these proceedings.
We have gone through the provisions of
the L.A. Act and we do not find any
provision
anywhere
which
may
be
inconsistent with the provisions of O.IX
C.P.C."

7. With due respect to the Hon'ble Court,
we are unable to subscribe to the views
expressed by the Karnataka High Court in
the aforesaid decision. S.26 of the Act
comes into operation only when the
reference is to be decided on merits after
considering the evidence led by the
parties and the provisions of S.23 of the
Act. S.26 of the Act does not say anything
which may be inconsistent with the courts
power under O.IX. R.8 C.P.C. to dismiss
a reference for default of appearance by
the claimants. Since there is nothing
inherently inconsistent in Sec.26 of the
Act with the existence of O.IX R.8 C.P.C.
we fail to see on what principle can the
provisions of O.IX, R.8 C.P.C. be
excluded
when
Sec.53
of
the
Act
specifically makes them applicable.

11. We are in respectful agreement with
the views expressed by the Madras,
Madhya Pradesh and Gujarat High
Courts. In our opinion the provisions of
O.IX,
C.P.C.
are
applicable
to
proceedings on a reference under Sec.18
of the L.A. Act. We are further of the
opinion that there is nothing in the L.A.
Act which may be inconsistent with the
provisions of O.IX, C.P.C."

11. Somewhat identical question as
involved in this case has come for
consideration before Full Bench of Delhi
High Court in Mst. Ram Piari and others
Vs. The Union of India and others AIR
1978 Delhi 129 (Full Bench), wherein
after dealing in detail about the scheme of
the provisions of the Act in paras 19, 20
and 21of the decision Full Bench has held
as under:-

"19. As noted earlier S. 21 of the Act
restricts the scope of the enquiry to a
consideration of the interests of the
persons at whose behest the Collector
makes the reference on their applying to
the Collector to make the reference. That
being so, it is incumbent on them to
pursue their claim as provided under the
Act. In the event of the death of a person
at whose instance the reference was made
the right to continue the reference
survives to his legal representatives. It is
for the legal representatives if they choose
to pursue the reference to apply to the
Court for being brought on the record to
enable them to prosecute the reference.
No obligation is cast on the Collector to
furnish the names and addresses of the
legal representatives of a deceased
claimant to keep the reference alive. The
reference is to be answered and an award
given by the Court only on evidence being
produced before it by the claimant who
challenges the award given by the
Collector." If no evidence is led the
reference has to be declined. The
provisions of the Act do not cast any
obligation on the Collector to justify his
award. It is only when a claimant
produces evidence before the Court and
succeeds in showing that the award made
708 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
by the Collector is inadequate that the
Collector is to lead evidence in rebuttal.
The Act itself does not prescribe the
procedure applicable to the proceedings
before the Court while hearing a
reference application. Sec. 53 of the Act,
however, makes the provisions of the
Code applicable to these proceedings.
Accordingly the procedure laid down in
the Code has to be followed by the Court
in deciding a reference application.

20. The procedure laid down in the Code
being applicable to these proceedings, it
cannot be urged that the applicability of
the provisions of Order 9 and Order 22 of
the Code are not attracted to the
proceedings in the Court.

21. An application under O. 22 requiring
the legal representatives to be brought on
the record has to be moved within the
period prescribed for moving such
application. In case the application is not
moved within time the reference would
abate and the Court is not obliged to
answer such a reference. It is no doubt
true that a reference application is not a
suit, however because of the applicability
of the procedure prescribed in the Code
to the proceedings before the Court in
such applications, the proceedings before
the Court partake the nature of a suit.
During the proceedings before the Court
in the reference application the claimants
will partake the status of plaintiffs while
the non-claimants and Collector would
occupy the position of defendants."

12.

While
considering
the
applicability of provisions of Order 22
C.P.C. and those of Limitation Act before
the reference court made under Section
30/31 of the Land Acquisition Act a Full
Bench of Delhi High court in Chander
and others Vs. Mauji and others reported
in AIR 1989 Delhi 97 in para 16 of the
decision has observed as under:-

"16. Whether the proceedings have
been initiated on a reference under S.18
or under S.30, the dispute to be settled is
as
to
the
persons
to
whom
the
compensation
is
payable
or
the
apportionment
of
the
compensation
among
the
persons
interested.
The
conflicting claims to the compensation
money is the dispute which has been
referred either under S.18 or under S.30
of the Act. The lis between the parties is
identical whether the proceedings are
under S.18 or under S.30. An adjudication
on the title to receive compensation on a
reference under S.18 stands on the same
footing as an adjudication on a reference
under S.30 or for that matter on a deposit
under S.31(2) of the Act. The scheme of
the Act is that the Collector has to pay
compensation to the rightful owners about
whom he gives his award. The disputes
could be settled either on a reference
under S.18 or on a reference under S.30
to enable the Collector to disburse the
compensation to the rightful owners. All
questions relating to the dispute as to title
to compensation, whether on a reference
under S.18 or on a reference under S.30,
traverse the same field. we can see no
fundamental difference in the proceedings
under S.18 and S.30/31 of the Act. The
two operate in the same arena. The
procedure before the Court on a reference
under S.30 would also be governed by the
provisions contained in the Code of Civil
Procedure. Section 30 does not contain
any provision expressly or by necessary
implication that the provisions of the
Code
of
Civil
Procedure
are
not
applicable. The Full Bench in Ram Piari's
case (AIR 1978 Delhi 129) said that a
3 All] Amir Hasan V. State of U.P. and others
709
reference under S.18 of the Act partakes
the nature of a suit. Similarly any dispute
as to the apportionment of compensation
or as to the persons to whom the same is
payable on a reference, whether under
S.18 or under S.30, is really in the nature
of an inter- pleader suit initiated by the
Collector either on a petition or suo motu.
The persons interested are directed to
establish their title to the acquired land.
There is no reason for not making the
provisions of the code of Civil Procedure
O.22 and for that matter the limitation
contained therein, applicable to the
proceedings under S.30 for the same
reasons
as
are
applicable
to
the
proceedings under S.18 of the Act."

13. In Gorakhpur Development
Authority, Gorakhpur Vs. District Judge,
Gorakhpur and others AIR 1991 Alld.
241 a Division Bench of this Court has,
however, held that Order 1 Rule 10
C.P.C. has no application to reference
proceeding under Section 18 of the Land
Acquisition Act, its applicability is
excluded by the context of the Act i.e. by
necessary
implication.
The
pertinent
observations made by Hon'ble Mr. Justice
B.P. Jeevan Reddy (as he then was the
Chief Justice of this Court) in para 17 of
the decision are as under:-

"17. ....... Accordingly, and for the
reasons given hereinbefore, we hold that
O.1, R.10, C.P.C. has no application to
reference proceedings under Section 18 of
the Land Acquisition Act. Its application
is excluded by the context of the Act, that
is, by necessary implication. A beneficiary
(local authority or company for whose
benefit the land is being acquired and
who is ultimately liable to bear the
burden of paying the compensation)
cannot apply for impleading, nor can it be
impleaded as a party - respondent under
O.1, R.10, C.P.C. read with S.53 of the
Land Acquisition Act. Its right is only the
one recognised by S.50(2) of the Act. It
can appear in such a reference and
adduce evidence in support of its case and
also to contradict the evidence produced
by the claimants. It can also crossexamine the witnesses produced by the
claimants. It cannot either ask for a
reference under S.18, nor can it file an
appeal against the judgment and award of
the Civil Court as a matter of right under
S.54 of the Act. It can file such an appeal
with the leave of the Court and, as
observed hereinbefore (see F.B. decision
of this Court in Gaurdham (1980 All CJ
345)
(supra).
Such
leave
should,
normally, be granted to a beneficiary,
who has appeared and participated in the
reference proceedings. Even where it did
not so appear and participate, it may well
be entitled to apply for such leave and the
Court should consider such a request
sympathetically for the simple reason that
the ultimate burden of paying the
compensation
falls
upon
such
beneficiary."

14. Thus, in view of statement of
law enunciated hereinbefore, there can be
no scope for doubt to hold that by virtue
of Section 53 of the Act the provisions of
C.P.C. are made applicable in proceeding
before the reference court constituted
under the Act, so far as they are not
inconsistent or contrary to any provisions
of the Act. In other words, the provisions
of C.P.C. cannot be held applicable if
such provisions are excluded by necessary
implication in context of the provisions of
the Act or if they are found contrary or
inconsistent with any provisions of the
Act or application of such provisions
creates anomalous situation or leads to an
710 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
absurdity or creates disharmony with the
provisions of the Act. Therefore, before
applying
the
provisions
of
Civil
Procedure Code in a reference proceeding
before Court it has to be examined as to
whether the said provision of Code is
anyway inconsistent or contrary to the
provisions of the Act or as to whether the
applicability of such provisions of Code
has
been
excluded
in
context
of
provisions of the Act by necessary
implication or the applicability of any
provision of the Code causes any anomaly
or disharmony with any provisions of the
Act. If it is found that the provision of
Code has been excluded in context of the
provisions of the Act by necessary
implication or the provisions of Code are
anyway inconsistent or contrary to the
provisions of the Act or its application
creates anomalous situation or leads to an
absurdity,
in
that
eventuality
the
applicability of such provisions of the
Code should be taken to be excluded,
otherwise it shall apply to the reference
proceeding before the court, accordingly
any broad proposition with regard to the
universal application of the provisions of
the Code can not be laid down and the
court has to examine every individual
case of applicability of the provisions of
the Code in context of the provisions of
the Act.

15. Now before proceeding further it
is also necessary to make it clear that the
jurisdiction of the court while dealing
with the reference cases under the Act is
of special nature. It has no original
jurisdiction like a civil court dealing with
civil suit in reference cases, wherein the
civil court has jurisdiction to try all the
suit of civil nature unless such suits are
expressly barred by statute or impliedly
barred
by
necessary
implication.
However, in reference cases before the
court its jurisdiction is limited and is
circumscribed by the reference made to it
either under Section 18 or 30 of the Act.
Having regard to the statutory scheme
underlying in the aforesaid provisions of
the Act, the court functioning under the
Act
being
a
tribunal
of
special
jurisdiction, can assume its jurisdiction
only where a valid reference is made to it
either under the provisions of Section 18
or 30 of the Act and the requisite
conditions for making such reference are
satisfied before the Collector while
making such reference to the court. If the
requisite
conditions
while
making
reference are not satisfied, the court can
not assume its jurisdiction if the reference
is not validly made to it by the Collector
under the Act, as held by Hon'ble Apex
Court in Mohd. Hansuddin Vs. State of
Maharashtra A.I.R. 1979 SC 404. In
other words before the tribunal assumes
jurisdiction in a matter, it must be
satisfied that the conditions requisite for
its acquiring seisin of that matter have in
fact arisen. Similar view has also been
taken by Hon'ble Apex Court in Prayag
Upniwas Awas Nirman Sahkari Samiti
Litd. Vs. Allahabad Vikas Pradhikaran
and other AIR 2003 SC 2302, wherein
the Hon'ble Apex Court in para 7 of the
decision has observed that the reference
court gets jurisdiction only if the matter is
referred to it under Section 18 or 30 of the
Act by Land Acquisition Officer and that
civil court has got jurisdiction and
authority only to decide the objections
referred to it. The reference court cannot
enlarge the scope of jurisdiction or
decides the matter which are not referred
to it. Therefore, while examining the
applicability of the provisions of Code of
Civil Procedure in reference proceeding
before the court, the context of the
3 All] Amir Hasan V. State of U.P. and others
711
provisions of Act has to be examined
scrupulously and strictly in individual
cases having regard to the nature of
jurisdiction conferred upon the reference
court and no broad proposition having
universal application of the provisions of
the Code can be laid down in this regard.

16. It is no doubt true that a
reference application is not a suit, but
because of applicability of procedure
prescribed in the Code of civil procedure
before the court, in such applications the
proceedings before the court partake the
nature of suit. During the proceedings
before
the
court
in
the
reference
application, the claimants will partake the
status of plaintiff while the non claimants
and Collector would occupy the position
of defendant. Having regard to the
scheme of the Act, I do not find any
provision therein which is inconsistent or
contrary to the provisions of Order XXII
of the Code of Civil Procedure which
deals with regard to bringing the legal
representatives and heirs of deceased
party on record of the court. Therefore, in
my opinion, the aforesaid provisions of
Code of Civil Procedure does not appear
to be excluded by necessary implication
in context of the provisions of the Act. In
such situation, there can be no scope for
doubt to hold that the provisions of Order
XXII of the Code of Civil Procedure have
full
application
in
the
reference
proceeding pending before the Court.
Accordingly, an application under Order
XXII
C.P.C.
requiring
the
legal
representatives to be brought on record
has to be moved within the period
prescribed for moving such application. In
case, the application is not moved within
time prescribed, the reference would be
abated and dismissed and the court would
not be obliged to answer such reference.
17. Once it is held that the
provisions of Order XXII C.P.C. are
applicable
for
bringing
the
legal
representatives and heirs of claimant on
record before the court in reference
proceeding, the applicability of provisions
of the Limitation Act can also not be
doubted atleast for two reasons firstly it is
proceeding before the court where the
provisions of Section 5 of the Limitation
Act have full application and secondly
under the provisions of Order 22 Rule-3
of the C.P.C. if the application for
substitution of legal representative and
heir of deceased plaintiffs or appellants is
not moved within prescribed period, the
proceeding shall stand abated. For moving
such application although no period of
limitation has been provided under Order
22 of the C.P.C. but under article 120 of
Schedule appended to the Limitation Act,
the period of limitation prescribed is 90
days from the date of death of plaintiff,
appellant, defendant or respondent, as the
case may be and under Article 121 of the
schedule 60 days' period of limitation has
been prescribed for setting aside the order
of abatement from the date of abatement.
And by virtue of Order 22 Rule 9(2) and
(3) of C.P.C. the provisions of Section 5
of the Limitation Act have also been
made
applicable,
therefore,
if
the
applicant satisfies the court that he had
sufficient cause for not making the
substitution
application
within
such
period prescribed under the provisions of
the Limitation Act, the court is fully
empowered to set aside the abatement
order and admit such application by
extending the prescribed period for
limitation in moving such application
under Order 22 C.P.C..

18. Now coming to the fact of the
case, it appears that the impugned order
712 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
was passed by the court below/reference
court rejecting the delay condonation
application of petitioner moved along
with substitution application under Order
XXII Rule 3 for bringing the legal
representative and heir of the claimant
Sabbir Hasan on record on the ground that
the same was not maintainable before the
court, in my opinion, view taken by the
court below is contrary to the view taken
by me, therefore, cannot be sustained. The
rejection of delay condonation application
of the petitioner moved along with
substitution application on merits too
appears to be erroneous. I am of the
considered opinion that liberal view ought
to have been taken by the court below
while considering the cause shown by the
petitioner
in
moving
such
belated
application. The specific case taken by the
petitioner was that he was residing in
Bombay in connection of his Hotel
business and rarely visits his home town
at Tilhar in district Shahjahanpur and he
was not aware of the proceeding pending
in court below, therefore, in absence of
rebuttal of his statement made in affidavit
on oath and in absence of contrary
material
brought
on
record,
the
correctness of his statement could not be
doubted by the court below. In my
opinion, the view taken contrary to it
cannot be sustained. In given facts and
circumstances of the case, the cause
shown in moving the belated substitution
application by the petitioner appears to be
sufficient and, therefore, the delay caused
in moving such application ought to have
been condoned. Accordingly, the delay
caused in moving substitution application
by the petitioner is hereby condoned. The
impugned order dated 8.11.2002 passed
by the court below is hereby quashed. The
court below is directed to decide the
substitution application moved by the
petitioner on merit by restoring the
aforesaid reference proceeding on file.

19.