- (1.) SABHAJEET Yadav, J. This petition is directed against the judgment and order dated 8. 11. 2002 passed by Special Judge/additional District Judge, Shahjahanpur in Reference No. 62 of 1997 Sabbir Hasan Vs. State of U. P. and others, whereby delay condonation application moved by the petitioner along with substitution application in pending reference has been rejected.
(2.) THE reliefs sought in the writ petition rest on the assertions that the plot No. 76/1, 82/1, 89/1, 90, 74 situated in Village Tilhar Qasba, District Shahjahanpur belonging to Sabbir Hasan were acquired under the provisions of Land Acquisition Act, 1894, for which the award was given by the Collector on 14. 1. 1997. Feeling aggrieved against the aforesaid award Sabbir Hasan had moved application under Section 18 of the Land Acquisition Act requiring the Collector to make reference for enhancement of compensation, which was registered as L. A. Reference No. 62 of 1997 and was pending in the Court of 9th Additional District Judge, Shahjahanpur. During the pendency of reference Sabbir Hasan had died on 25. 4. 2001 as issue-less. THE petitioner being his brother and sole heir and legal representative had no knowledge or information about the pendency of the aforesaid reference. THE petitioner is residing in Bombay since 1981 where he is engaged in hotel business and rarely visits to his permanent home town Tilhar, District Shahjahanpur. On 1. 8. 2002 one Gopal Babu who was Mukhtare-aam and pairokar of Sabbir Hasan has met him and told about the pendency of aforesaid reference. On that day for the first time the petitioner came to know about it. THEreafter the petitioner filed application for substitution of his name in place of Sabbir Hasan on 2. 8. 2002 supported by an affidavit. THE petitioner has also filed an application supported by an affidavit for condoning the delay under Section 5 of the Limitation Act in moving the aforesaid substitution application. THE application and affidavit are on record as Annexures 4 and 5 of the writ petition. It is also stated that due to typing error in the affidavits, the date of death of Sabbir Hasan was wrongly typed as 16. 1. 2001 instead of 25. 4. 2001, therefore, an application for amendment along with affidavit dated 16. 9. 2002 was filed for correction of date of death incorrectly mentioned in the substitution application and delay condonation application. It is further stated that although the D. G. C. (Civil) has filed objection dated 24. 9. 2002 but neither any affidavit was filed in support thereof nor any counter affidavit in opposition to the affidavits filed by the petitioner referred above was filed. Despite, thereof the court below vide impugned order dated 8. 11. 2002 has wrongly rejected the delay condonation application and substitution application of the petitioner on merits and on the ground of maintainability also. Hence this petition. 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. 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?
(3.) IN order to answer the aforesaid questions, it is necessary to examine relevant provisions of the Land Acquisition Act 1894 hereinafter referred to as "the Act" and Section 5 of the Limitation Act. Section 3 (d) of the Act defines the expression 'court' and Section 53 of the Act provides that the provisions of the Code have been made applicable to the proceedings before the court. Therefore, the said provisions are extracted as under:- " 3 (d) the expression "court" means a principal Civil Court of original jurisdiction, unless the [appropriate Government] has appointed (as it is hereby empowered to do) a special judicial officer within any specified local limits to perform the functions of the Court under this Act;" "53. Code of Civil Procedure to apply to proceedings before Court- Save in so far as they may be inconsistent with anything contained in this Act, the provisions of the [code of Civil Procedure, 1908], shall apply to all proceedings before the Court under this Act. " 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. ";