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State Of West Bengal v. Dwijendra Chandra Sen Opposite Party.
Judgment Summary — Substitution of Legal Representatives and Condonation of Delay (F.A. No. 154 of 1965)
Factual and Procedural Background
This revision arises from an application by the State of West Bengal seeking substitution of the legal heirs (wife, son and daughter) of the sole respondent, Dwijendra Chandra Sen, after setting aside an order of abatement and seeking condonation of delay.
Key steps in the procedural history (as stated in the opinion):
- On or about 27 June 1964 First Appeal No. 154 of 1965 was presented to the High Court (arising out of L.A. Case No. 315 of 1963), along with other analogous land acquisition appeals.
- The appeal challenged the judgment and decree dated 31 March 1964 passed by the District Judge, Burdwan.
- On 18 February 1966 a Rule was issued directing the petitioner to deposit the decretal amount in the Court below within six weeks, failing which the Rule would stand dismissed; on 28 July 1966 the Rule was discharged.
- A Lawzima report dated 6 October 1977, communicated to the Legal Remembrancer, first informed the State's representatives that the sole respondent was dead.
- By memo dated 15 November 1977, the Collector, Burdwan, was asked for particulars; a memo dated 9 February 1978 (received 13 February 1978) recorded that the respondent had died on 3 December 1966, leaving Sm. Renuka Sen (widow), Tarunendra Sen (son) and Sm. Rama Majumdar (daughter).
- The State applied for substitution of these legal heirs and for condonation of delay in making the application, asserting ignorance of the respondent’s death until the Lawzima report and subsequent collector's memo.
Legal Issues Presented
- Whether the heirs of the deceased sole respondent can be substituted in the appeal (First Appeal No. 154 of 1965) after an order of abatement has been made.
- Whether delay in making the application for substitution can be condoned on the facts alleged by the State (ignorance of the death) and, if so, under what statutory provision (specifically reference to Section 5 of the Limitation Act and the amended Order 22 of the CPC).
- Whether the provisions of Order 22 of the Code of Civil Procedure and the Limitation Act apply to reference proceedings or appeals arising under Section 18 of the Land Acquisition Act (i.e., the applicability of CPC and Limitation Act principles to substitution requests in Section 18 proceedings).
Arguments of the Parties
Applicant / Petitioner (State of West Bengal) — Principal Contentions
- The appeal cannot proceed unless the legal heirs are substituted in place of the deceased sole respondent.
- There was no laches or negligence on the part of the State: the State only became aware of the respondent's death from the Lawzima report and the collector’s subsequent memo, and hence delay in making the substitution application should be condoned.
- Counsel for the petitioner further argued that Order 22 of the CPC does not apply to a reference under Section 18 of the Land Acquisition Act, and therefore there can be no dismissal or abatement of an appeal under that provision (relying on authority to that effect, specifically Abdul Karim Khan v. State of Madhya Pradesh).
Opposite Parties (Legal Heirs / Respondents) — Principal Contentions
- The application is hopelessly barred by limitation and there is no sufficient ground for condonation of delay.
- The State cannot claim a privileged position; the provisions of the Code of Civil Procedure and the Limitation Act apply to proceedings under Section 18 of the Land Acquisition Act, and condonation of delay should not be allowed unless sufficient cause is shown.
- Reliance was placed on authority (Collector of Dacca v. Golam Kuddus Chaudhuri and Bhandi Singh v. Ranadhin Rai) for the proposition that awards under the Land Acquisition Act are to be treated as decrees and that CPC provisions are applicable to proceedings under the Act.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Collector of Dacca v. Golam Kuddus Chaudhuri, ILR (1937) 1 Cal 699 at p.703 (AIR 1936 Cal 688) | Authority for the proposition that every award under the Land Acquisition Act is deemed to be a decree and the statement of the grounds is a judgment; used to support the applicability of CPC provisions to LA Act proceedings. | The court records that this decision was relied upon by the opposite parties to support applicability of CPC; it is discussed as part of the conflicting authorities on applicability of CPC and Limitation Act to Section 18 proceedings. |
| Bhandi Singh v. Ranadhin Rai, (1905) 2 Cal LJ 359 | Support for the proposition that provisions of the Code of Civil Procedure are made applicable to proceedings under the Land Acquisition Act (subject to inconsistency). | Noted by the court as a supporting authority relied upon by the opposite parties to show applicability of CPC to LA Act proceedings. |
| Abdul Karim Khan v. State of Madhya Pradesh, AIR 1964 Madh Pra 171 | Held (per that decision) that provisions of the Code of Civil Procedure would not apply to an appeal arising out of a proceeding under the Land Acquisition Act (relied upon by petitioner). | The court notes this authority was relied upon by the petitioner but records that the Gujarat High Court (in Alihusain Abbasbhai) was unable to accept that decision as correct. |
| Alihusain Abbasbhai v. Collector, Panch Mahals, AIR 1967 Guj 118 | Considered the Abdul Karim Khan decision and held that provisions of the Code of Civil Procedure are applicable to proceedings under Section 18; further held the Limitation Act would not be applicable to a reference under Section 18 (as described in the opinion). | The court cites this decision to support the view that Order 22 of the CPC applies to Section 18 references and to explain the position taken by Bhagwati, J. regarding inapplicability of Limitation Act to reference proceedings; it is used to contrast the competing authorities. |
| Hansraj Gupta v. Dehra Dun Mussourie Electric Tramway Co. Ltd., AIR 1933 P.C. 63 | Privy Council's observation that the word "suit" in Section 3 of the Limitation Act ordinarily means a civil proceeding instituted by presentation of a plaint; used to argue Limitation Act may not apply to Section 18 references. | Referred to by the court (via citation in Alihusain) to explain the conceptual basis for treating a reference under Section 18 as not being a "suit" for Limitation Act purposes. |
Court's Reasoning and Analysis
The court proceeded by first examining the statutory scheme and the interaction between the Land Acquisition Act, the Code of Civil Procedure (CPC) and the Limitation Act, as reflected in the authorities cited by both sides.
- Statutory basis: The court noted that Section 53 of the Land Acquisition Act makes the provisions of the Code of Civil Procedure applicable to proceedings under the Act unless inconsistent with any provision of the Land Acquisition Act. The court observed that substitution under Order 22 CPC does not appear to be inconsistent with any provision of the Land Acquisition Act, and therefore a reference under Section 18 (or an appeal arising from an award) is attracted by Order 22 CPC.
- Conflicting authorities: The court reviewed opposing authorities. The opposite parties relied on Collector of Dacca and Bhandi Singh to support applicability of CPC and Limitation Act; the petitioner relied on Abdul Karim Khan to argue the CPC did not apply. The court pointed out that the Gujarat High Court in Alihusain Abbasbhai had disagreed with Abdul Karim Khan and had held that CPC provisions apply but that the Limitation Act would not be applicable to a reference under Section 18.
- Limitation issue and legislative amendment: Rather than resolving the deeper controversy over the Limitation Act's applicability to Section 18 references, the court observed that the Amendment Act, 1976 had introduced Order 22 Rules 4(4) and 4(5) to permit an application for extension of time for substitution of legal representatives where ignorance of death is established. Order 22 Rule 4(5)(b) expressly permits taking aid of Section 5 of the Limitation Act for extension of time. Therefore, the legislative amendment provides a statutory mechanism for extension and condonation in such substitution matters.
- Application to facts: The court applied the statutory framework and the factual record. It accepted that the State only became aware of the sole respondent's death from the Lawzima report (dated 6 October 1977) and the Collector's memo (dated 9 February 1978), and that the respondent had died on 3 December 1966 (shortly after discharge of the Rule on 28 July 1966). Given that the State was thus ignorant of the death, the court concluded there was sufficient cause for not making the substitution application within the prescribed period.
- Conclusion on condonation: Having regard to the statutory amendment (Order 22 R.4(4) and R.4(5)) and on the facts of ignorance, the court held that the State had established sufficient grounds to seek condonation under Section 5 of the Limitation Act (as made available by the CPC amendment).
Holding and Implications
Holding:
THE RULE IS MADE ABSOLUTE: the order of abatement is set aside and the opposite parties (the widow and children of the deceased respondent) are to be brought on record as the legal heirs of the deceased respondent in First Appeal No. 154 of 1965.
Direct consequences and implications:
- The application for substitution and for condonation of delay was allowed; the opposite parties (Sm. Renuka Sen, Tarunendra Sen and Sm. Rama Majumdar) were ordered to be brought on record as legal heirs of Dwijendra Chandra Sen in F.A. No. 154 of 1965.
- The order of abatement previously recorded is set aside; the appeal can proceed with the substituted parties on record.
- There will be no order as to costs.
- The court relied on the statutory scheme (Section 53 of the LA Act and the Amendment Act, 1976 introducing Order 22 R.4(4) and R.4(5)) and the facts of ignorance of the respondent's death to permit condonation under Section 5 of the Limitation Act. The opinion does not expressly claim to lay down a new, general precedent beyond its application to the facts before the court; it rests on the statutory amendment and the factual finding of ignorance as the basis for condonation.
Judge N.C. Mukherji agreed with the judgment. The Rule was made absolute.
Sudhindra Mohan Guha, J.:— The present revision arises out of an application by the State of West Bengal for substitution of the wife, son and daughter of the sole respondent Dwijendra Chandra Sen after setting aside abatement on condoning the delay.
2. On or about 27th June, 1964, the First Appeal No. 154 of 1965 was presented in this Court along with twelve other analogous Land Acquisition appeals being Nos. F.A 151 to 163 of 1965. The appeal in question arose out of L.A Case No. 315 of 1963 and was preferred against the Judgement and decree dated 31-3-1964 passed by Sri S.K Bhattacherjee, District Judge, Burdwan. On 18-2-1966 a Rule was issued by this Court and their Lordships directed the present petitioner to deposit the decretal amount in the Court below within six weeks in default the rule would stand dismissed. On 28-7-1966 their Lordships were pleased to discharge the rule.
3. From the Lawzima report dated 6-10-1977 which was communicated subsequently to the office of the Legal Remembrancer by the Advocate for the State and from that report the appellant for the first time came to know that the sole respondent was dead.
4. Thereafter, the Collector of Burdwan, was requested to make an enquiry and to furnish the relevant particulars, that is, the exact date of death, name and address of the legal heirs etc. by a memo dated 15-11-1977. The memo of the said Collector dated 9-2-1978 was received by the office of the Legal Remembrancer on 13-2-1978 wherefrom it transpired that the sole respondent died on 3-12-1966 leaving behind the present opposite parties, namely, (1) Sm. Renuka Sen (Widow), (2) Tarunendra Sen (Son) and (3) Sm. Rama Majumdar (Daughter).
5. It is accordingly submitted that unless these persons are substituted and/or added in the place and stead of the deceased sole respondent Dwijendra Chandra Sen the appeal cannot be proceeded with and for which it is necessary to substitute the aforesaid heirs otherwise the State would suffer irreparable loss and injury and the appeal would become infructuous.
6. As for condonation of delay it is submitted that there being no laches and/or negligence on the part of the State the delay in making this application for substitution may be condoned and the heirs of the sole respondent may be substituted in the place and stead of the deceased respondent after setting aside abatement as the petitioner for the first time came to know the fact of death of sole respondent from the note of the learned Advocate and the date of death and the names of the heirs from the report of the L.A Collector, Burdwan dated 9-2-1978.
7. This application is opposed by the opposite parties on the ground that the application is hopelessly barred by limitation and there is no sufficient ground for condonation of delay.
8. It is contended on behalf of the opposite parties that the State cannot be in a privileged position and as the provisions of the Code of Civil Procedure as well as the Limitation Act apply in a proceeding under Section 18 of the Land Acquisition Act, the condonation of delay in no circumstances should be allowed, unless the State succeeds to establish sufficient cause for not making the application within the prescribed period.
9. The learned Advocate for the petitioner on the other hand, contends that to a reference proceeding under S. 18 the provision of O. 22 of the CPC does not apply and as such there can be no dismissal or abatement of an appeal against the proceeding under Section 18 of the L.A Act. The learned Advocate for the opposite parties with reference to the decision in Collector of Dacca v. Golam Kuddus Chaudhuri, reported in ILR (1937) 1 Cal 699 at p. 703 : (AIR 1936 Cal 688) contends that every award under the L.A Act was deemed to be a decree and the statement of the grounds of every such award, a judgement within the meaning of cl.(2) of S. 2 and cl.(9) of S. 2 respectively. It is further contended by him that all the provisions of the Code of Civil Procedure are made applicable to proceedings before the Court under the L.A Act except in cases where there may be inconsistency. Reliance is placed on the decision in the case of Bhandi Singh v. Ranadhin Rai reported in (1905) 2 Cal LJ 359 at p. 368. He also argues that an appeal shall lie to the High Court from the award or from any part of the award of the case in any proceeding under the Act.
10. The learned Advocate for the petitioner on the other hand, in support of his contention argues that the provisions of the Code of Civil Procedure would not apply to an appeal out of a proceeding under the Land Acquisition Act. Reliance is placed on the decision in Abdul Karim Khan…Applicant; v. State Of Madhya Pradesh…Opponent. reported in AIR 1964 Madh Pra 171.
11. By virtue of Section 53 of the Land Acquisition Act the provisions of Code of Civil Procedure are applicable to all proceedings before the Court under the Act unless such provision in the Code is inconsistent with anything contained in the Act. Any provision in the Land Acquisition Act would not appear directly to be inconsistent with the principle of substitution under Order 22 of the CPC. The reference under that Act cannot be regarded in any way different from an ordinary Civil Proceeding. In this view of the matter, a reference under Section 18 of the Land Acquisition Act or an appeal arising out of an award would be attracted by Order 22 of the CPC. The Gujarat High Court in the case of Alihusain Abbasbhai v. Collector, Panch Mahals, reported in AIR 1967 Guj 118, had occasion to consider the case reported in AIR 1964 Madh Pra 171. Bhagwati, J. (his Lordship as he then was) was unable to accept the decision as correct. That decision, according to him, proceeds on the hypothesis that once a reference is made by the Collector, it must of necessity terminate in an award of the Court and on that hypothesis it works out the conclusion that even if the applicant does not appear or produce evidence in support of the objection, the reference cannot be dismissed but an award must be made even though such award be in the same terms as the award of the Collector and equally if the applicant dies and his heirs do not make an application to bring themselves on record, the reference cannot abate, but the Collector must supply the names of the heirs to the Court and the Court must give notice of the reference to the heirs and then proceed to make an award, which in the absence of evidence in support of the objection may be in the same terms as the award of the Collector. This conclusion is clearly not justified by the scheme and language of the Sections. But though the provisions of the Code of Civil Procedure were found to be applicable in a proceeding under Section 18 of the Land Acquisition Act. His Lordship held further that the provisions of the Limitation Act would not be applicable to a reference proceeding under S. 18 of the Act and as such there would (be) no time limit for bringing on record the legal representatives of an applicant. In this case His Lordship observed that the applicant died during the pendency of the reference, the petitioners as the heirs and legal representatives of the applicant made an application for bringing themselves on record under O. 22 R. 3 sub-rule (1). So, the question is whether they were bound to make such application within any particular period. The controversy between the parties, therefore, centered round the question as to whether any time was limited by law for the purpose of making an application by the heirs of a deceased applicant in a pending reference for bringing themselves on record. Article 176 of the Indian Limitation Act, 1908 provided a period of 90 days from the date of the death of the deceased applicant for making an application (Corresponding provision is in Article 120 of the Limitation Act, 1963). According to His Lordship the applicant in a reference proceeding is not a ‘plaintiff’ and the proceeding is not a ‘suit’ within the meaning of Article 176 of the Limitation Act (1908), since a ‘suit’ should be commenced with the presentation of a ‘plaint’. Section 53 of the Land Acquisition Act, in the opinion of His Lordship does not make the provisions of the Limitation Act applicable. Hence, Article 176 of the Limitation Act is not applicable to a reference proceeding under S. 18 of the Act. His Lordship also refers to the decision of the Privy Council in Hansraj Gupta v. Dehra Dun Mussourie Electric Tramway Co. Ltd. reported in AIR 1933 P.C 63. The Privy Council observed therein that the word ‘suit’ in Section 3 of the Limitation Act ordinarily means a Civil Proceeding instituted for the presentation of a plaint. As a proceeding under Section 18 of the Land Acquisition Act does not commence with the presentation of a plaint the provision of Limitation Act, in the opinion of His Lordship will not be attracted to the provision of substitution. His Lordship further observes that the statutory fiction is a limited one and it has merely the effect of converting an award into or decree for the purpose of Section 2(2) of the CPC. As a matter of that statutory fiction clearly postulates that a reference is not a ‘suit’, for if it were a suit, the award would straightway have been a decree and there would have been no need to enact the statutory fiction.
12. But we think for our present purpose we need not enter into the controversy whether the provision of Limitation Act would be applicable to an appeal out of an application under Section 18 of the Land Acquisition Act for the purpose of substitution. Moreover the matter has been set at rest by introduction of O. 22 R. 4(4) and R. 4(5) by the Amendment Act, 1976. Such provisions were inserted to provide that the plaintiff should have an opportunity to pray for an extension of the time limit for the substitution of the legal representative of the deceased defendant, if he can establish that he was ignorant of the death of the defendant. The plaintiff under O. 22 R. 4(5)(b) can take aid of Section 5 of the Limitation Act for the extension of time for such substitution. So the relevant provision of Limitation Act has been incorporated therein.
13. The State in this case, in our opinion, has been successful to make out sufficient ground for condonation of delay. There was sufficient case for not making the application within the specified period. It transpired from record that the respondent Dwijendra Chandra Sen died on 3-12-1966 that is, soon after the discharge of the rule on 28-7-1966. In connection of the Lawzima report dated 6-10-1977 the office of the Legal Remembrancer for the first time came to know about the death of the sole respondent. Thereafter, on 15-11-1977 an enquiry was made to the Collector, Burdwan, Memo dated 9-2-1978 supplied the necessary particulars sought for.
14. In the circumstances it was quite natural for the State of West Bengal to be ignorant of the death of the sole respondent, and as such could not make an application for the substitution of the legal representatives of the respondent under O. 22 R. 4 within the period prescribed for the purpose.
15. Thus, on consideration of the entire facts and circumstances of the case and having due regard to the fact of ignorance as stated by the State of West Bengal, we are of the view that the application under Section 5 of the Limitation Act should be allowed.
16. In the result, the Rule is made absolute and the Order of abatement is set aside. The opposite party be brought on record as the legal heirs of the deceased respondent in F.A No. 154 of 1965. There will be no order as to Costs.
17. N.C Mukherji, J.:— I agree.
18. Rule made absolute.
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