State of U.P. and Others vs Col. Jai Krishan and Another

D.K. Seth, J.—The Union of India and Lal Bahadur Shastri National Academy of Administration filed this application for addition of the applicants as Appellants in the appeal preferred by the State of U.P. against a judgment and decree passed on a reference u/s 18 of the Land Acquisition Act arising out of an award. Admittedly, the land was acquired for the benefit of the applicants from whose fund the compensation is to be borne. Learned counsel for the appllcants''s Mr. Anil Kumar Bajpai holding the brief of Mr. U. N. Sharma contends that since the compensation is borne out of the funds of the applicant they are the persons interested in the award and, therefore, they have a right as well to be added as party as Appellant in the appeal filed by the State through whom the land was acquired for the applicants benefit. In support of his contention he has relied on the decision in the case of M/s. Neyvely Lignite Corpn. Ltd. Vs. Special Tahsildar (Land Acquisition), Neyvely and others,

Mr. R. P. Goel learned counsel for the Respondent on the other hand contends that by reason of Section 50(2) of the Land Acquisition Act, the applicants do not have any right to prefer an appeal though they might have right to appear and adduce evidence. According to him such appeal can be filed only with the leave of the Court by the Appellant. He contends further that such leave cannot be granted because of the conduct of the applicants. He also contends that despite having the right to appear and adduce the evidence, the applicants have never chosen to appear and adduce evidence either before the Collector or the court. On these grounds he has opposed the prayer of the applicant.

In support Mr. R. P. Goel has placed reliance on the case of Dilip Kumar Chaurasiya Vs. Ramesh Chandra Sahu alias Bhaiji and others,

Learned Standing counsel contends that the Appellant has no objections if the applicants are added as Appellants. He also supports the contention of Mr. A.K. Bajpai.

After having heard learned counsel for the parties it appears that it is an admitted fact that the land was acquired for the benefit of the applicants and that the compensation was payable out the funds of the applicants. Thus, it appears that the applicants are persons interested. Section 18 of the Land Acquisition Act (hereinafter referred to as the Act) enables a "person interested" to apply for reference. Section 50(2) of the said Act provides right of appearance and adduce evidence in a proceedings before the Collector or before the Court to the local authority or the company concerned. In the present case it Is the local authority who had such right under Sub-section (2) of Section 50. Though such right may not have been exercise either before the Collector or before the court in the course of proceedings under reference u/s 18 yet the interest does not extinguish. It is the State or the Collector who furnishes the statement and represents interest of such beneficiaries as well. It cannot be said that the interest of such beneficiary is wholly unrepresented. The beneficiary may rely on the representation made through the State or also may come forward Itself.

In the case of Neyvely Lignite Corporation Ltd. the Apex Court had held that the appeal against an order under reference u/s 18 is for all purposes an appeal within the meaning of Section 96 of the Code of Civil Procedure. By reason of Section 53 the provisions of CPC is applicable in all proceedings before the court under the said Act and by reason of Section 54 the provision relating to the appeal provided in the CPC is also attracted. The Apex Court had held that the beneficiaries is also a necessary party and could also be added under Order I, Rule 10 of the CPC and denial of such right to a person interested is an infringement of fair and Just procedure as provided under Article 226 of the Constitution. It was further held that even if the beneficiary is not made a party it is entitled to seek leave of the court to file appeal against the decree of the civil court u/s 26 or of the judgment and decree u/s 54 or Is entitled to file a writ petition under Article 226 of the Constitution of India and assail the legality and correctness of the order impugned. Therefore the right to prefer an appeal is recognised. In the case of New Okhla Industrial Development Authority this court also had taken the same view that whosoever may be entitled to file an appeal u/s 96 of the CPC against the judgment and decree has a right u/s 54 also to file an appeal against the Award. u/s 96 of the CPC any person who is aggrieved by a judgment and decree can prefer an appeal even if he is not a party. By leave of the court an appeal will lie at the instance of the Corporation for whose benefit the proceedings has taken place under the Land Acquisition Act.

Mr. Goel had led stress on the observation of the said two judgments so far as it observes that such appeal can be maintained by the beneficiaries by leave of the court. According to him without any leave such appeal cannot be entertained or filed by the Corporation and that while considering the question of granting leave the conduct of the party is also to be taken into account. The court should not exercise such discretion when the conduct of the party does not appear to be diligent. Since in the present case the Appellant did not appear either before the Collector or before the court or adduce evidence in either of the proceedings and did not seek leave to file an appeal and had come for an addition of the party so late the applicants have shown lack of diligence and thereby have disentitled themselves to be added as Appellants in the present case. According to him the addition means to take away the right accrued to the Respondents by operation of law namely the law of limitation.

The fact remains that even if the beneficiary is not added a party the interest of the beneficiary is represented by the State in the peculiar facts and circumstances of the present case, particularly when the same is undertaken under the provisions of the Land Acquisition Act where there is some amount of ad idem in the interest of the Acquisitioning Authority and the beneficiary. In fact the acquisition is undertaken by the Acquisitioning Authority in the interest of the beneficiary. The appeal is filed by the Acquisitioning Authority to secure the interest of the beneficiary. The Acquisitioning Authority can also maintain the appeal and represent the interest of the beneficiary. Therefore, by addition of the beneficiary who could very well be added as Respondents in the appeal by the Acquisitioning Authority. Even if it is not represented by reason of preferring the appeal it cannot be said that the appeal would not be maintainable in the absence of the beneficiary, therefore, the addition of the beneficiary as Appellant would also not effect the maintainability of the appeal. Even in the absence of the beneficiary there is no scope of abatement or dismissal of the appeal against the beneficiary, since the interest is already represented by the Acquisitioning Authority. Therefore, the question of limitation in the present case cannot be a consideration for the purposes of granting leave to the applicant to be added as Appellant. Therefore, there is no scope of accrual of any right by operation of law.

So far as the conduct, as contended by Mr. Goel is concerned, to my mind it does not appeal to be sufficient to deny the right of the applicant. The conduct was never a ground to deny the right of appeal which is created by the Statute. When the Statute provides a right whether it is contested or uncontested any one has a right to file appeal. Even against an ex parte decree appeal has been provided. In such appeal the conduct of the Appellant is not at all a factor to be taken into account. It is the merit of the case which is to be decided in the appeal. The appeal is decided on the basis of the material placed not on the basis of the conduct of the parties.

Since the right to prefer an appeal with the leave of the court is recognised by the Apex Court as well as this Court, there is no bar of adding the beneficiary as Appellants in the proceedings with the leave of the Court. If an appeal can be filed with the leave of the court by a person, he can very well seek leave to be added as Appellant in such appeal already filed by some one else with whom the applicant has an ad idem of interest. Seeking permission to be added as Appellant in the appeal amounts to seeking leave to be so added. Court is not powerless in such circumstances to grant such leave depending on the facts and circumstances of the case,

In the present case the facts so pleaded appears to be sufficient and, therefore, the leave is granted and accordingly the applicant be added as Appellants. The memorandum of appeal be accordingly corrected in course of two days.