Vishwamber Vithal Kanekar, (since deceased), through legal heir Milind Madgut vs Umakant K. Kanekar and Others

A.P. Lavande, J.—Heard Mr. Pangam, learned Counsel for the appellant/ applicant and Mr. Teles, learned Counsel for respondent nos.3(a) and 5 to 10. M.C.A. No. 443/2011 has been filed by the applicant / appellant seeking the following relief: (a) This Hon''ble Court be pleased to set aside the judgment and award/ decree dated 26/04/2010 and remand the matter back to the trial Court/ Reference Court for taking appropriate steps in the matter, namely to bring on record the said legal heirs of the deceased respondent nos.1 and 4 in accordance with law.

First Appeal No. 108/2010 has been preferred against the judgment and award dated 26th April, 2010 passed by the Ad hoc District Judge, Panaji in Land Acquisition Case No. 4/2007. By the impugned judgment, the Reference Court has held that all the interested parties are equally entitled to compensation awarded along with interest thereon. The said reference was u/s 30 of the Land Acquisition Act. In the said case, the appellant was party no.1 and the respondents were party nos.2 to 11.

Perusal of the impugned judgment discloses that the party nos. 2 and 5 i.e. respondent nos.1 and 4 herein had died before passing of the award. Admittedly, no legal representatives were brought on record in the reference. In so far as respondent no.2 in the appeal i.e. Kashikant Kanekar is concerned, he was shown ex-parte in the said case. It appears that he had also expired before the impugned judgment and award was passed.

In view of the above factual position, Mr. that it would be just and proper to set aside the impugned judgment and award and remit the matter to the Reference Court. Mr. Pangam, learned Counsel for the appellant/ applicant submitted that the impugned award passed by the Reference Court is nullity in as much as the Reference Court has awarded compensation in favour of dead parties, which the Reference Court could not have granted. In support of his submissions, he has placed reliance upon the following judgments :

(i) Amarsangji Indrasangji Vs. Desai Umed, .

(ii) Muna Devi and Another Vs. Ram Jhari Devi and Others, .

(iii) Udai Ram Vs. Dharam Chand, .

Per contra, Mr. Teles, learned Counsel for respondent nos.3(a) and 5 to 10 submitted that no purpose would be served in setting aside the impugned judgment and award and remitting the matter to the Reference Court and the legal representatives of deceased respondents are free to make appropriate application for claiming the compensation awarded in favour of the deceased respondents.

I have considered the rival submissions and perused the record and the judgments relied upon.

It is clear that at the time of passing of the impugned judgment and award, respondent nos.1 and 4 in the appeal had expired as is evident from the impugned award. It also appears that respondent no.2 in the appeal i.e. Shri Kashikant Kanekar had also expired before passing of the impugned judgment and award. It is the consistent view of this High Court, Rajasthan High Court as well as Patna High Court that if the party dies during the pendency of First Appeal and legal representatives are not brought on record, the proper course would be to set aside the judgment passed by the lower appellate Court and remit the matter to the lower appellate Court for passing appropriate orders since the award passed by the lower appellate Court is ineffective. I am in respectful agreement with the view taken in the above referred three judgments relied upon by Mr. Pangam. Therefore, I do not find any merit in the submission of Mr. Teles that no purpose would be served by setting aside the impugned judgment and award and remitting the matter to the Reference Court.

By the impugned judgment and award, the Reference Court has awarded compensation in favour of dead persons. Obviously, therefore, the impugned award is nullity. On this ground the impugned judgment and award dated 26th April, 2010 is liable to be quashed and set aside and is hereby quashed and set aside and the matter remitted to the Reference Court with an opportunity to any party to the reference to file applications for setting aside the abatement and substitution of the heirs of the deceased parties. Such applications, if any, be filed within a period of one month from the date of appearance before the Reference Court. If no such applications are filed, the Reference Court shall proceed to dispose of the reference in accordance with law. The parties either personally or through their Advocates shall appear before the Reference Court on 7th July, 2011 at 10.00 a.m. First Appeal No. 108/2010 and M.C.A. No. 443/2011 stand accordingly disposed of.