Partly allowed

Smt.Gurubai and Ors. v. the Deputy Commissioner and Ors.

Karnataka HC19 Jul 2018WP/200182/2018

Case brief

AI extract

What is this about?

The High Court quashed orders dismissing legal heirs' applications in land acquisition proceedings due to counsel's repeated absences. The Writ Court restored the matter, set aside the dismissal, permitted the heirs to come on record, allowed condonation of delay, and imposed costs on the absent counsel.

What did the court decide?

Order dated 16.02.2017 set aside; proceedings restored to file; applications for recall, abatement, and substitution allowed; delay in bringing legal heirs condoned.

Smt.Gurubai and Ors. Vs the Deputy Commissioner and Ors. — Land Acquisition | Karnataka HC (2018)

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IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH

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DATED THIS THE 19^TH DAY OF JULY, 2018

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BEFORE

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THE HON’BLE MR.JUSTICE S.N.SATYANARAYANA

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W.P.Nos.200182-200183/2018 (LA)

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Between:

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Smt. Gurubai W/o Late Sattanna Age: 62 years, Occ: Agriculture

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Tukaram S/o Late Sattanna Age: 32 years, Occ: Agriculture

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Mahadev S/o Late Sattanna Age: 25 years, Occ: Pvt. Work

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Anil Kumar S/o Late Sattanna Age: 20 years, Occ: Student All R/o Village Salegaon Taluk: Aland, District: Kalaburagi

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... Petitioners

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(By Sri H.M. Patel Gulahalli, Advocate)

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And:

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The Deputy Commissioner Kalaburagi, Mini Vidhan Soudha Building Kalaburagi – 585 101

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The Special Land Acquisition Officer M & MIP Kalaburagi – 585 101

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The Executive Engineer, MI Division Kalaburagi – 585 101

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(By Sri K.M. Ghate, AGA)

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These Writ Petitions are filed under Articles 226 and 227 of the Constitution of India, praying to quash the order passed by the III-Addl. District Judge, Kalaburagi, dated 01.09.2015 at Annexure-A and order dated 16.02.2017 Annexure-B in LAC No.306/2010 and necessary direction may be passed to consider the application filed by the petitioners at Annexures-C to F, and etc.

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These petitions are coming on for preliminary hearing, this day, the Court made the following:-

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ORDER

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The legal heirs of deceased Sattanna in LACA No.306/2010 have come up in these writ petitions impugning the order dated 01.09.2015, 16.02.2017 passed in the aforesaid proceedings, which are referred to as Annexures-A and B in these writ petitions.

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Brief facts leading to these writ petitions are

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as under:

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The proceedings in LACA No.306/2010 was initiated by one Sattanna seeking enhancement of compensation payable for acquisition of land bearing Sy.No.136/1B measuring 6 acres 38 guntas of Salegaon village, Aland taluka, Kalaburagi district. The proceedings under Section 18(1) in LACA No.306/2010 was pending on the file of III-Addl. District & Sessions Judge, Gulbarga. During the pendency of the said proceedings, Sattanna died on 29.04.2015. A memo was filed to that effect on 07.08.2015 by the learned counsel for the appellant in the Court below.

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However, steps were not taken to bring the legal representatives on record. When this matter was called on 01.09.2015 to consider the memo dated 07.08.2015 there was no representation on behalf of appellant inasmuch as learned counsel Sri H.M.Patel appearing for them also stayed away from the Court. In the order dated 01.09.2015 it was observed that time

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was granted to take necessary steps to bring legal representatives of deceased-appellant on record on 07.08.2015, 14.08.2015, 21.08.2015, 28.08.2015 and 31.08.2015 on all days steps were not taken.

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It is in this background, the petition came to be dismissed on 01.09.2015 for not taking steps in the absence of learned counsel Sri H.M.Patel as he was not present before the Court. Thereafter application in I.A.No.3 was filed under Section 151 of CPC along with applications in I.A.Nos.4, 5 and 6, which are under Order 22 Rule 3 of CPC, under Order 22 Rule 9 of CPC and under Section 5 of the Limitation Act.

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These three applications were taken up for consideration on 19.11.2016, on that day, learned counsel Sri H.M.Patel was absent, it was adjourned to 20.01.2017, again to 28.01.2017, on both days learned counsel Sri H.M.Patel was absent. Thereafter the matter was adjourned finally on 16.02.2017 to hear on

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I.A.No.3, which is an application filed seeking to recall

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of the order of dismissal. On 16.02.2017 also learned counsel Sri H.M.Patel was absent, in this background, out of frustration the Court below dismissed the application, which was filed under Section 151 of CPC seeking recall of the order dated 01.09.2015 and thereafter, confirmed the order of dismissal.

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Against this, the present petitions are filed.

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After filing of these writ petitions it was listed for first time on 05.06.2018, the order sheet indicates that the matter was adjourned granting one week time to remove office objections. Thereafter, it was called on 18.07.2018 i.e. yesterday, there was no representation on behalf of the petitioners, it was adjourned from yesterday to today. While doing so, this Court had suggested to learned Additional Government Advocate to inform the counsel for petitioners to be present before the Court. Today, learned counsel is before this Court

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reluctantly, he is not in a position to narrate his continuous non representation before the Court below on more than six occasions which has resulted in order impugned being passed out of frustration by the Court below.

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In the fact situation, this Court would observe that, but for the conduct of counsel for the petitioners this situation would not have arisen. Considering the nature of litigation and also the manner in which it is dealt, it is needless to say that the sufferer is the petitioner and his family members. In this matter, whether the petitioner has a right to enhanced compensation or not will have to be decided in the proceedings in LACA No.306/2010. However, when it comes to the counsel for the parties what is required on his part is to make proper representations on all hearing days, which has not happened in this matter. It is unfortunate that the appellant died during the

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pendency of the proceedings before the Court below. Even if there is some delay in filing application to bring the legal heirs on record, the Courts would not have taken serious objection in allowing the application filed by the legal representatives to come on record by condoning the delay in filing the legal representatives applications.

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In the fact situation it is because of the fault of learned counsel who was continuously absent on more than six occasions in the Court below the impugned order was passed, the same is required to be set aside.

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Accordingly, the order dated 16.02.2017 in dismissing the application in I.A.No.3 in the said proceedings is set aside and the same is allowed. Consequently, the proceedings in LACA No.306/2010 is restored to file. In the said proceedings the applications filed in I.A.Nos.4, 5 and 6 are taken up for consideration

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by allowing I.A.No.6 in LACA No.306/2010 delay in filing the application by the legal representatives of appellant seeking permission to come on record is condoned; by allowing I.A.No.5 filed under Order 22 Rule 9 of CPC abatement caused is set aside; by allowing the application in I.A.No.4 under Order 22 Rule 3 of CPC the petitioners herein who are legal representatives of deceased Sattanna the appellant in the said proceedings are permitted to come on record as appellants in LACA No.306/2010.

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With the aforesaid order, the parties are relegated back to the reference Court. Where the reference Court after permitting the counsel for the appellant to amend the cause title pursuant to the order passed by this Court to amend the cause title and to implead the legal representatives of deceased Sattanna as appellant Nos.1(a) to 1(d) thereafter shall take up the said reference and dispose of the same on merits.

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The aforesaid order is passed subject to payment of cost of Rs.5,000/- by the learned counsel Sri H.M.Patel personally to the Registrar of this Court. It is only after production of the said receipt of the learned counsel Sri H.M.Patel the matter shall be taken up for consideration in the Court below. It is made clear that the parties are not liable to pay the cost, it is for the petitioners’ counsel to pay the same from out of his pocket.

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Sd/JUDGE

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sdu CT: RRJ

Smt.Gurubai and Ors. v. the Deputy Commissioner and Ors.

Case brief

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Smt.Gurubai and Ors. v. the Deputy Commissioner and Ors.

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