Ramchandra Maroti Bidkar vs State Of Maharashtra, Thr. Collector ... on 17 October, 2019

[Cites 13, Cited by 0]

Bombay High Court

Ramchandra Maroti Bidkar vs State Of Maharashtra, Thr. Collector ... on 17 October, 2019

DATE OF PRONOUNCING: 17.10.2019 This is an application filed on behalf of the appellant (original claimant) seeking permission to transpose original non-applicant No.3 before the Reference Court as an appellant. It is relevant that the said original non-applicant No.3 was the uncle of the appellant and he is now represented by his legal representatives.

2. In the present case, land belonging to the appellant and the respondent No.3 was acquired by the respondent Nos.1 and 2. The land admeasuring 1.63 HR from 3.04 HR located in Survey Nos.623/1, 623/2 and 623/3 in Mouza Salod, Tahsil and District KHUNTE ::: Uploaded on - 18/10/2019 ::: Downloaded on - 19/10/2019 01:57:24 ::: caf3217.19.odt 2/16 Wardha was acquired for construction of Deoli Branch Canal. It is also undisputed that out of 1.63 HR land, 1.43 HR land was owned by the appellant and balance 0.20 HR land was owned by the respondent No.3. Award was passed on 31/07/2010 by the Land Acquisition Officer.

3. In pursuance of the award, the Land Acquisition Officer had prepared a consolidated cheque for amount of compensation of Rs.5,39,406/-. This amount pertained to entire 1.63 HR land acquired in the present case and the amount of compensation was not separately granted to the appellant and the respondent No.3 for their respective areas of land i.e. 1.43 HR and 0.20 HR respectively. In this situation, as the cheque for the amount of compensation was a consolidated cheque, a dispute appears to have arisen between the appellant and the respondent No.3, who were relatives and ultimately a compromise was executed between them, wherein it was agreed by the respondent No.3 that the appellant would collect the cheque towards the consolidated amount of compensation and that both of them would cooperate each other for further action in that regard. This compromise was executed between the parties and accordingly the consolidated cheque was received by the appellant under protest. Thereafter, the appellant filed application under section 18 of the Land KHUNTE ::: Uploaded on - 18/10/2019 ::: Downloaded on - 19/10/2019 01:57:24 ::: caf3217.19.odt 3/16 Acquisition Act, 1894 (hereinafter referred to as "Act of 1894") seeking enhancement of compensation. In this application, the said facts regarding consolidated cheque being received by the appellant for himself and the respondent No.3 were placed on record and it was specifically stated that the reference application was being filed and the respondent No.3 was arrayed as non-applicant No.3 in the said application.

4. Thereafter, the reference Court partly allowed the reference application and granted enhanced compensation to the appellant with statutory benefits and interest as per the provisions of the Act of 1894. Although it was noted by the Reference Court in the impugned judgment and award that 1.63 HR land was acquired, while granting enhancement of compensation, such enhanced compensation was granted only in respect of 1.43 HR of land.

5. Aggrieved by the impugned judgment and order of the Reference Court, the appellant filed present First Appeal No.215 of 2017 in this Court. Connected appeals were also pending in this Court, which stood partly allowed and disposed of by common judgment and order dated 08/08/2019 by further enhancement of compensation. But, the present appeal was segregated as the instant application filed by the appellant seeking to transpose KHUNTE ::: Uploaded on - 18/10/2019 ::: Downloaded on - 19/10/2019 01:57:24 ::: caf3217.19.odt 4/16 the respondent No.3 as appellant, was pending in this Court. In the said application, it has been stated that transposition ought to be permitted in the interest of justice and that technicalities ought not come in the way of the respondent No.3, now represented through legal representatives, to get just and fair enhanced compensation to which the appellant would be found to be entitled.

6. This application was opposed on behalf of the respondent Nos.1 and 2. It was submitted that since the respondent No.3 had not filed application for reference under section 18 of the Act of 1894 and no challenge was raised to the award passed by the Land Acquisition Officer, such transposition of the respondent No.3 as appellant in the present appeal could not be permitted. It was emphasized that by not preferring application under section 18 of the Act of 1894, the respondent No.3 had accepted the award of the Land Acquisition Officer and therefore, there was no question of permitting of such transposition. In the alternative, it was submitted that if the application was to be allowed, the respondent No.3 upon being transposed, ought not to be granted interest on the enhanced compensation from the date of the award of the Land Acquisition Officer till the application for transposition being allowed.

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7. Learned counsel Smt.Sharda Wandile appearing for the appellant submitted in support of the application for transposition that on proper reading of the provisions of the Act of 1894, as also Code of Civil Procedure, 1908 and the Limitation Act, 1963, it would be clear that limitation for transposition of respondent No.3 as an appellant in this appeal, would not apply and that there was no impediment in granting the present application despite the fact that the respondent No.3 had not specifically preferred an application under section 18 of the Act of 1894, particularly because he was arrayed as non-applicant No.3 before the Reference Court. Reliance was placed on judgments of the Hon'ble Supreme Court in the cases of Mukesh Kuma nad others v. Col.Harbans Waraich and others, reported in (1999) 9 SCC 380, Kiran Tandon v. Allahabad Development Authority and another, reported in (2004) 10 SCC 745, Himalayan Tiles & Marbles (P) Ltd. v. Francis Victor Coutinho (dead) by LRs and Ors., reported in 1980 AIR 1118 and the judgment of Allahabad High Court in the case of Vijay Shanker Rai and others v. Sarvjeet Rai and others, reported in 2015 (108) ALR 130.

8. As noted above, it was submitted by Mr.M.A.Kadu, the learned counsel appearing for the respondent No.2 and Smt. A.R.Kulkarni learned A.G.P. appearing for the respondent No.1 that the KHUNTE ::: Uploaded on - 18/10/2019 ::: Downloaded on - 19/10/2019 01:57:24 ::: caf3217.19.odt 6/16 application for transposition was not maintainable, particularly in the absence of the respondent No.3 filing an application under section 18 of the Act of 1894 before the Reference Court. It was reiterated that in any case, the respondent No.3 would not be entitled to grant of interest for the period between the date of the award of the Land Acquisition Officer and the transposition application being allowed by this Court, if at all.

9. The emphasis in the present case in support of the application for transposition was that the respondent No.3 was always a party before the Reference Court and that in the peculiar facts and circumstances of the present case, the prayer for transposition deserved to be allowed in the interest of justice. In order to examine the contentions raised on behalf of the appellant, it would be necessary to peruse the compromise executed between the appellant and the respondent No.3, which was reiterated by the legal representatives of the respondent No.3 by executing another document dated 24/10/2017, wherein the said legal representatives stood by the compromise executed between their predecessor (original respondent No.3) and the appellant. The said two documents clearly established that the original respondent No.3 and after him, his legal representatives had agreed with the appellant that the consolidated amount of KHUNTE ::: Uploaded on - 18/10/2019 ::: Downloaded on - 19/10/2019 01:57:24 ::: caf3217.19.odt 7/16 compensation for the entire 1.63 HR land would be received by the appellant on his behalf as well as the original respondent No.3 and further the parties would cooperate each other for consequent action in the matter.

10. A perusal of the application filed by the appellant under section 18 of the Act of 1894, would show that the aforesaid facts regarding receiving of the consolidated amount of compensation by one cheque by the appellant for himself and on behalf of the original respondent No.3 were stated and the fact about compromise between them was also placed on record. It was also stated in the said application that in that backdrop, the respondent No.3 was being added as non-applicant No.3 before the Reference Court. It was also placed on record that the cheque towards the consolidated amount of compensation of Rs.5,39,406/- was accepted by the appellant under protest and that the reference application was being preferred for enhancement of compensation. There is no doubt about the fact that while partly allowing the reference application, the Reference Court granted enhanced compensation only for 1.43 HR of land, which was owned by the appellant, despite taking note of the fact that the total acquired land was 1.63 HR, which included 0.20 HR of land of the original respondent No.3. The appeal was then preferred KHUNTE ::: Uploaded on - 18/10/2019 ::: Downloaded on - 19/10/2019 01:57:24 ::: caf3217.19.odt 8/16 before this Court seeking further enhancement of compensation.

11. The present application for transposition was filed stating that it was necessary for transposing the original respondent No.3 as appellant for proper adjudication of the claim of enhanced compensation for the claimants so that the legal representatives, now representing the original respondent No.3 were not denied just and fair enhanced compensation for acquisition of 0.20 HR of land belonging to the respondent No.3, which was acquired in the present case.

12. This application has been moved under Order I Rule 10 of the Civil Procedure Code, 1908 and it is claimed by the appellant that in such a case, where transposition is sought, limitation would not apply and this was clear from section 21 of the Limitation Act, 1963. In this context, a perusal of section 21 of the Act of 1963, becomes relevant, which reads as follows:

"21. Effect of substituting or adding new plaintiff or defendant.-- (1) Where after the institution of a suit, a new plaintiff or, defendant is substituted or added, the suit shall, as regards him, be deemed to have been instituted when he was so made a party:

Provided that where the court is satisfied that the omission to include a new plaintiff or defendant was due to a mistake made in good faith it may direct that the suit as regards such plaintiff or KHUNTE ::: Uploaded on - 18/10/2019 ::: Downloaded on - 19/10/2019 01:57:24 ::: caf3217.19.odt 9/16 defendant shall be deemed to have been instituted on any earlier date.

(2) Nothing in sub-section (1) shall apply to a case where a party is added or substituted owing to assignment or devolution of any interest during the pendency of a suit or where a plaintiff is made a defendant or a defendant is made a plaintiff."

13. In the context of the said provision, particularly while considering prayer for transposition, the Hon'ble Supreme Court in the case of Mukesh Kumar and others v. Col.Harbans Waraich and others, (supra) has held as follows:

"9. Section 21 of the Limitation Act provides that wherever on institution of a suit a new plaintiff or defendant is substituted or added, the suit shall, as regards him, be deemed to have been instituted when he is so made a party, However, if court is satisfied that omission to include a new plaintiff or defendant was due to a mistake made in good faith it may direct that the suit as regards such plaintiff or defendant shall be deemed to have been instituted on any earlier date. Sub section (2) thereof makes it very clear that these provisions would not apply to a case where a party is added or substituted owing to assignment or devolution of any interest during the pendency of the suit or where plaintiff is made a defendant or a defendant is made a plaintiff. Section 21 has no application to cases of transposition of parties. Since transposition also involves addition of a plaintiff or a defendant, as the case may be, into the suit as originally filed, sub-section (2) of Section 21 of the Limitation Act applies only to those cases where the claim of the person transposed as a plaintiff can be sustained on the plaint as originally filled or where a person remaining as a plaintiff after the said transposition can Sustain his claim against the transposed defendant on the basis of the plaint as originally filed. For sub-section (2) to apply all that is necessary is that suit as filed KHUNTE ::: Uploaded on - 18/10/2019 ::: Downloaded on - 19/10/2019 01:57:24 ::: caf3217.19.odt 10/16 originally should remain the same after the transposition of the plaintiff and there should be no addition to its subject matter. Where a suit as originally filed is properly framed with the proper parties on record the mere change of a party from array of defendants to that of plaintiffs under Order I Rule 10 of the Civil Procedure Code will not make him a new plaintiff and will not bring the case within this Section and in such a case sub-section (1) will not apply. For instance, where one of the plaintiffs refusing to join as a plaintiff was first made a defendant and thereafter transposed as a plaintiff, he is not a new plaintiff. Therefore, the argument advanced on behalf of the appellants that the suit is barred by limitation insofar as Ashwani Kumar is concerned inasmuch as he is transposed as a plaintiff after the period of limitation does not stand to reason"

14. In the case of Kiran Tandon v. Allahabad Development Authority (supra), the queston of transposition of the State as an appellant with the appellant acquiring body was considered and it was laid by the Hon'ble Supreme Court that for a proper adjudication of the matter such transposition could certainly be permitted. The relevant portion of the said judgment of the Hon'ble Supreme Court in the case of Kiran Tandon v. Allahabad Development Authority (supra) reads as follows:

"4. Shri Sunil Gupta, learned Senior Counsel for the claimant has at the very outset assailed the order of the High Court whereby the application moved by the State of U.P. for transposing it as appellant in the appeals preferred by ADA was allowed. In the appeals preferred by the ADA against the judgment and award of the Additional District Judge Smt. Kiran Tandon (widow of the original claimant Ravindra Kumar Tandon) was arrayed as Respondent KHUNTE ::: Uploaded on - 18/10/2019 ::: Downloaded on - 19/10/2019 01:57:24 ::: caf3217.19.odt 11/16 1 and the State of U.P. was arrayed as pro forma Respondent 2. The applications for transposition were supported by the affidavit of Tehsildar Sadar, Allahabad, wherein it was averred that an objection had been raised on behalf of the State of U.P. before the Additional District Judge that the acquired land was State land and therefore the entire compensation amount should be awarded to the State of U.P. The land had been acquired for construction of residential flats by ADA which is a State within the meaning of Article 12 of the Constitution and is therefore competent to raise any or all of the objection on behalf of the State Government. Therefore, in order to avoid any technical objection and in the interest of justice it was expedient that the State of U.P. may be transposed as Appellant 2 in the appeal. The High Court held that as the ADA and State of U.P. were disputing the title of the claimant to receive the entire amount of compensation and the State of U.P. having already been impleaded as pro forma respondent in the appeal, the interest of justice required that it should be transposed as the appellant in the appeal. Sub-rule (2) of Order I Rule 10 CPC lays down that the court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added. It is well settled that the court has power under sub-rule (2) Order I Rule 10 CPC to transfer a defendant to the category of plaintiffs and where the plaintiff agrees, such transposition should be readily made. This power could be exercised by the High Court in appeal, if necessary, suo motu to do complete justice between the parties. This principle was laid by the Privy Council in Bhupendra Narayan Sinha Bahadur v. Rajeshwar Prosad Bhakat and has been consistently followed by all the courts. In fact, the pleas raised by ADA and the State of U.P. were KHUNTE ::: Uploaded on - 18/10/2019 ::: Downloaded on - 19/10/2019 01:57:24 ::: caf3217.19.odt 12/16 identical and in order to effectuate complete adjudication of the question involved in the appeal it was in the interest of justice to transpose the State of U.P. as Appellant 2 in the appeal. We are, therefore, of the opinion that no exception can be taken to the course adopted by the High Court in transposing the State of U.P. as appellant in both the appeals."

15. In the case of Himalayan Tiles & Marbles (P) Ltd. v. Francis Victor Coutinho (dead) by LRs & Ors. (supra), the Hon'ble Supreme Court discussed the concept of person interested under section 18 of the Act of 1894 and found that a company on whose behalf, the State was acquiring land was certainly a person interested and that the said concept was to be construed liberally and as an inclusive definition. The said position of law laid down by the Hon'ble Supreme Court was followed by the Allahabad High Court in the case of Vijay Shanker Rai and others v. Sarvjeet Rai and others (supra) to hold that transposition ought to be allowed and that limitation would not apply to such an application, as long as a respondent was sought to be transposed as an appellant, as in the present case. A proper reading of the said judgments of the Hon'ble Supreme Court in the context of Order I Rule 10 of Civil Procedure Code, 1908 read with section 21 of the Limitation Act, 1963, as also section 53 of the Act of 1894 so far as they are not inconsistent with anything contained under the said Act, it becomes clear that the application for transposition filed by the appellant in KHUNTE ::: Uploaded on - 18/10/2019 ::: Downloaded on - 19/10/2019 01:57:24 ::: caf3217.19.odt 13/16 the present case, deserves to be considered and granted.

16. Although a specific objection was raised on behalf of the respondent Nos.1 and 2 that failure to file application under section 18 of the Act of 1894 by the respondent No.3 was fatal for consideration of such a prayer for transposition, applying the said position of law laid down by the Hon'ble Supreme Court to the facts of the present case it would become clear that as long as the respondent No.3 was a party before the Reference Court as non-applicant No.3, the remedy for transposition could certainly be considered. The contention raised on behalf of the respondent Nos.1 and 2 that the respondent No.3, who was non-applicant No.3 before the Reference Court, had accepted the award, cannot be sustained in the peculiar facts of the present case, because the compromise document placed at Exhibit-20 before the Reference Court clearly states that the respondent No.3 and the appellant had agreed that the consolidated cheque towards compensation for the entire acquired land of 1.63 HR was to be accepted by the appellant and that the parties were to cooperate with each other for further action to be taken in that regard. It is a matter of record that the consolidated cheque was disbursed by the respondent Nos.1 and 2 to the appellant, which constituted the quantum of compensation to the entire 1.63 HR land, KHUNTE ::: Uploaded on - 18/10/2019 ::: Downloaded on - 19/10/2019 01:57:24 ::: caf3217.19.odt 14/16 which included 0.20 HR land belonging to the respondent No.3. The said cheque was accepted under protest by the appellant, obviously not only on his behalf, but also on behalf of his uncle, respondent No.3 and in terms of the compromise entered into between them, the reference application was preferred before the Reference Court, wherein the respondent No.3 was arrayed as non-applicant No.3. In view of the said peculiar facts and circumstances of the present case, it cannot be said that the application for transposition could not be considered by this Court only because a separate application under section 18 of hte Act of 1894, was not preferred by the respondent No.3 before the Reference Court.

17. Since limitation would not apply for such an application under section 21 (2) of the Limitation Act, 1963, the application could certainly be considered by this Court. Taking into consideration the contents of the said application, the contents of the reference application made before the Reference Cout, the two documents of compromise placed on record and the overall facts and circumstances of the case, this Court is of the opinion that the application for transposition deserves to be allowed in the interest of justice and for ensuring that just and fair compensation is paid to the claimants in the present case i.e. the appellant and the respondent No.3. Transposition of the respondent No.3, now KHUNTE ::: Uploaded on - 18/10/2019 ::: Downloaded on - 19/10/2019 01:57:24 ::: caf3217.19.odt 15/16 represented through his legal heirs, as an appellant in the appeal would be a step towards acheiving the objective of grant of just and fair compensation to the claimants under the provisions of the Act of 1894.

18. As regards the contention raised on behalf of the respondent Nos.1 and 2 that failure on the part of the respondent No.3 to file a reference application in the present case should result in depriving the respondent No.3 from interest on enhanced compensation from the date of the award of the Land Acquisition Officer to the date when the application for transposition is allowed, it is found that when the application for transposition deserves to be allowed on the basis of the position of law and proper interpretation of provisions of various Acts and the Civil Procedure Code, there is no reason to deprive the respondent No.3, now represented through legal representatives, from interest on the enhanced compensation. Once the application for transposition is allowed, there cannot be any such condition, because the concept of limitation is not applicable to such an application for transposition and it cannot be treated as if the respondent No.3 was guilty of delay, to deprive him of all benefits of enhanced compensation including grant of interest. This is particularly so because the compensation awarded by the Land Acquisition Officer was disbursed in a conslidated manner by a single cheque to the KHUNTE ::: Uploaded on - 18/10/2019 ::: Downloaded on - 19/10/2019 01:57:24 ::: caf3217.19.odt 16/16 appellant, who received it for and on behalf of himself and the respondent No.3 under protest. Consequently, further enhancement of such quantum of compensation with all benefits could not be denied to respondent No.3 even after it is found that the application for transposition deserves to be allowed.

19. In view of the above, the present application for transposition is allowed. The respondent No.3, now represented through legal representatives, are transposed as appellant Nos.2(a) to 2(c) in the present appeal. The amendment be carried out forthwith. The application stands disposed of accordingly.

JUDGE KHUNTE ::: Uploaded on - 18/10/2019 ::: Downloaded on - 19/10/2019 01:57:24 :::

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