Netra Pal vs Smt. V.S.K.D. Smith and others

L.N. Mittal, J.—Netra Pal whose application for being impleaded as party to reference pending u/s 30 of the Land Acquisition Act, 1894 (in short, the Act) has been dismissed by reference Court i.e. learned Additional District Judge, Faridabad vide order dated 05.04.2010 has filed the instant revision petition under Article 227 of the Constitution of India to challenge the said order. Both the parties to the reference petition claiming interest in the acquired land got reference u/s 30 of the Act made by the Collector to the reference Court. During pendency of the said reference, petitioner herein moved application for being impleaded as party to the said reference alleging that some of the petitioners had agreed to sell acquired land and other land to the applicant-petitioner vide agreement to sell dated 03.04.2003 and received the entire sale consideration and sale deed was to be executed on sanction of mutation in favour of the aforesaid vendors. But after the agreement, the land has been acquired. Sale died dated 10.11.2005 in favour of Mahender etc. has already been declared null and void vide judgment and decree dated 26.11.2007. Sale deed in favour of applicant-petitioner could not be executed on account of acquisition of the land although the vendors were declared to be heirs of the previous owners vide judgment and decree dated 29.07.2009. Accordingly the applicant petitioner claiming to be ''interested person'' filed application for being impleaded as party to the reference.

Claimants No. 3(i), 3(iii) and (iv) admitted the claim of the applicant-petitioner. However, claimant No. 1 and claimants No. 2(iv) to 2(vi) contested the application and denied the alleged agreement dated 03.04.2003 in favour of applicant petitioner. It was alleged that counsel for claimant petitioner No. 1 taking advantage of the relationship of Advocate and litigant played fraud upon claimant-petitioner No. 1. Various other pleas were also raised.

Learned reference Court vide impugned order dismissed the application of the petitioner. Feeling aggrieved, instant revision petition has been preferred.

I have heard learned counsel for the parties and perused the case file.

Learned counsel for the petitioner contended that Hon''ble Supreme Court in case of Prayag Upnivesh Awas Evam Nirman Sahkari Samiti Ltd. v. Allahabad Vikas Pradhikaran and another,1 2003(2) R.C.R. (Civil) 674 held that reference Court cannot convert reference u/s 18 of the Act into reference u/s 30 of the Act and vice versa, but in the instant case, reference u/s 30 of the Act is already pending and applicant-petitioner simply wants to become party thereto. It was submitted that in view of agreement set up by the applicant-petitioner, he is ''person interested'' within the meaning of Section 3(b) of the Act and therefore, applicant-petitioner has right to be impleaded as party to the reference u/s 30 of the Act. Reliance in support of this contention has been placed on judgment of Bombay High Court in case of Mohammad Akil Khan Vs. Premraj Jawanmal Surana and Another, and judgment of this Court in case of Harbhajan v. Ruppa and another,3 2004(1) L.J.R. 406. Relying on judgment of Supreme Court in case of Gian Chand v. Gopata,4 1995(2) R.R.R. 40, it was also contended that if the contract is frustrated on account of acquisition of land, the vendee is entitled to claim refund of the earnest money. Counsel for the petitioner relying on Division Bench judgment of this Court in case of Indraj Vs. Sham Lal, and Single Bench judgments of this Court in cases of Bagh Singh and others v. The Special Land Acquisition Collector and another,6 (1984)86 P.L.R. 568 and Union of India v. Kartar Singh,7 2000(2) R.C.R. (Civil) 233 contended that reference Court has power to implead any interested person as party to the reference in view of Order 1 Rule 10 of the CPC (in short, "CPC") read with Section 53 of the Act which makes applicable provisions of CPC to proceedings under the Act before the Court i.e. reference Court.

On the other hand, counsel for respondents relying on Supreme Court judgment in the case of Muthavatti of Sha Madhari Diwan Wakf S.J. Syed Zakrudeen and Another v. Syed Zindasha and others,8 2009(3) R.C.R. (Civil) 479 contended that applicant-petitioner cannot be impleaded as party to the pending reference.

I have carefully considered the rival contentions. Judgment in the case of Syed Zindasha and others (supra) cited by counsel for respondents is completely distinguishable. In that case, reference was u/s 18 of the Act for enhancement of compensation. A third person claiming title over the acquired property applied for being impleaded as party. It was held that u/s 18 of the Act, question of title cannot be entertained. Obviously this judgment has no applicability to the instant case. Impleading a party claiming title in the acquired property in a reference u/s 18 of the Act for enhancement of compensation would amount to converting the reference from Section 18 to Section 30 of the Act, which is not permissible, as also held by the Supreme Court in the case of Prayag Upnivesh Awas Evam Nirman Sahkari Samiti Ltd. (supra). However, when reference u/s 30 of the Act is pending, rival claims of all claimants/persons interested have to be adjudicated in the said reference. A person interested can and should, therefore, be impleaded as party to reference u/s 30 of the Act. In this view, I am supported by Division Bench judgment of this Court in the case of Indraj (supra) and also by Single Bench judgments of this Court in the cases of Bagh Singh (supra) and Kartar Singh (supra). In fact, applicant-petitioner would be rendered remediless if he is not impleaded as party to the reference u/s 30 of the Act. This cannot be done. Petitioner is ''person interested'' claiming under the agreement to sell, as held in the cases of Mohammad Akil Khan (supra) and Harbhajan (supra). Consequently the petitioner being interested person has to be impleaded as party to the pending reference u/s 30 of the Act. The applicant-petitioner is not only proper but also necessary party to the pending reference.

In view of the aforesaid, I find that the impugned order of the reference Court is perverse and illegal and suffers from jurisdictional error. The reference Court failed to exercise jurisdiction which vested in it to implead the applicant-petitioner as party to the pending reference.

Accordingly, the instant revision petition is allowed. Impugned order of the reference Court is set aside. Applicant-petitioner is ordered to be impleaded as party to the pending reference u/s 30 of the Act. The reference Court shall thereafter proceed to decide the reference in accordance with law. However, nothing observed in this order shall have any bearing on merits of the claim of the applicant-petitioner or any other party.