(Per : HONOURABLE MR.JUSTICE AKIL KURESHI) The applicants seek permission of the Court to file First Appeal as legal heirs of the original claimant, who happens to be his widow, sons and daughters, since they were not made parties before the Reference Court. It is stated that there are no other heirs of deceased surviving other than mentioned above.
One Bhavanbhai Lavabhai Bhayani whose land was acquired, has sought reference for additional compensation before the Reference Court. Such reference was partially allowed vide judgement and award dated 14.7.2009 passed in Land Reference Case No.33/2003. It appears that said Bhavanbhhai had expired on 8.4.2004. (Copy of death certificate is tendered by the counsel for the applicant which is taken on record.) Though the original claimant had expired during the pendency of the reference, since the heirs were not conversant with the Land Reference proceedings and not legally well versed, they made another application for bringing themselves on record as heirs of the deceased claimant. Consequently, the Reference Court proceeded to dispose of the reference case along with other cases of acquisition of the same notification and rendered its award which is sought to be challenged by the heirs of the claimant in the present appeal.
They had approached the Reference Court for bringing themselves on record ex post facto after the reference was disposed of. Such reference however, was rejected by order dated 31.1.2011.
We have heard learned counsel for the parties.
Facts in the present case are peculiar. Claimant though had expired during the pendency of the reference, his legal heirs were not brought on record. Reference Court proceeded to pass award unmindful of such development. It is this award which the heirs seek to challenge before us as persons aggrieved. They seek further enhancement in compensation awarded by the Reference Court. We are of the opinion that such prayer is required to be granted. Powers of the Appellate Court inherent in appeal filed under Section 96 of the Code of Civil Procedure are sufficiently wide as provided in various provisions contained in Order 41 of Code of Civil Procedure. In particular, we may refer to Rule 33 of Order 41 that provides for powers of the Appellate Court and provides inter-alia that the Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require. We are conscious that present appeal is one filed under the Land Acquisition Act and not under the Code of Civil Procedure. However, by virtue of section 53 of the Land Acquisition Act, the powers of the Appellate Court could still be traced under the provisions of the Code. Not granting permission as prayed for in the present case would take away valuable right of heirs of deceased claimant to challenge the judgement and award of the Reference Court, though under ordinary circumstances statutory appeal would be available.
In the result, this application is allowed. The applicants are allowed to prosecute the appeal as heirs of the deceased Bhavanbhai Lavabhai Bhayani. Application is disposed of.
(Akil Kureshi,J.) (C.L.
Soni,J.) (raghu) Top