Skip to content


Kerala State Electricity Board Vs. Cyriac Stephen - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKerala High Court
Decided On
Case NumberC.M.P. No. 13335 of 1981 (in L.A.A. No. 78 of 1981)
Judge
Reported inAIR1982Ker61
ActsKerala Land Acquisition Act, 1962 - Sections 20 and 60; Code of Civil Procedure (CPC) , 1908 - Sections 96
AppellantKerala State Electricity Board
RespondentCyriac Stephen
Appellant Advocate G. Janardhana Kurup and; B. Radhakrishna Pillai, Advs.
Respondent Advocate Govt. Pleader and; P.N. Sankara Narayana Pillai, Adv.
DispositionAppeal allowed
Cases ReferredTrichur Municipality v. Narayanan Nair
Excerpt:
.....that is exercised by the appellate court while considering an application for leave to appeal to it. on being satisfied that such an appellant has a right of appeal because he is bound, or aggrieved or prejudicially affected by the decision appealed against, the appeal is entertained, of course, subject to all other laws governing an appeal of that sort like those pertaining to limitation, court-fees etc......appellant has a right of appeal because he is bound, or aggrieved or prejudicially affected by the decision appealed against, the appeal is entertained, of course, subject to all other laws governing an appeal of that sort like those pertaining to limitation, court-fees etc. on granting leave, the permission or grant of leave to appeal relates back to the date of preferring the appeal or in other words, it is not an ap-peal preferred on the date leave therefor is granted but one filed when it was filed in accordance with other laws governing such appeals. in view of what is said above, we do not think, that the law has been correctly stated in commr., trichur municipality v. narayanan nair, (1980 ker lt 101) : (air 1980 ker 170) wherein it is said that since leave petitions were filed.....
Judgment:

George Vadakkel, J.

1. By this petition the Kerala State Electricity Board seeks leave to appeal from the decision of the Subordinate Judge, Thodupuzha in L. A. R. 4 of 1979 on the file of his Court. The facts material for the present purpose are :-- The State acquired 52.13 Acres of land in Sy. No. 270/1-6 of Thodupuzha village for the purpose of constructing Staff-Quarters for the employees of the Board at Thodupuzha under the provisions of the Kerala Land Acquisition Act, 1961, Act 21 of 1962 (hereinafter, the Act). The Land Acquisition Officer awarded compensation at the rate of Rs. 950/- per Acre besides a sum of Rs. 4,233-17 as value of improvements and Rs. 8,063.50 as solatium. The learned Subordinate Judge raised the rate of compensation for the land by Rs. 1,550/- per Acre by fixing land value at the rate of Rs. 2,500/- per acre. Consequently the quantum of solatium and interest also was enhanced. It is not disputed that the cost of acquisition is to be met by the K. S. E. Board. The State has not preferred any appeal. It is in these circumstances that the K. S. E. Board seeks permission to prefer an appeal from the decision in L. A. R. 4 of 1979 mentioned above.

2. Under Section 60 of the Act, an appeal shall lie from the award or from any part of the award of the Court as if it is a decree of a civil Court under the provision of the Civil P. C., 1908 and subject to such rules as may be prescribed. No rule governing such appeals have been made,

3. Section 96 of the Code provides that an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorised to hear appeals from the decisions of such Court.

4. Neither Section 60 of the Act nor Section 96 of the Code, in terms and expressly, say as to who can appeal to a superior Court against the decision of an inferior Court, nor do those provisions expressly preclude any one adversely affected by the decision of the inferior Court from taking up the decision of the inferior Court in appeal to a superior Court. In short, neither of these provisions limit the right of appeal against the inferior Court's decision to parties to the proceedings before the inferior Court, either by expressly stating as to who alone can appeal or as to who all cannot appeal to the superior Court. However, normally one or the other of the parties to the proceedings before the inferior Court is bound and affected by that Court's decision, and therefore, when such a party who is adversely affected by that Court's decision prefers an appeal, the appellate Court need not and will not enquire as to whether he is adversely affected or not by the impugned decision, In other words, a party-appellant enters the superior Court without being asked whether he is in any manner adversely affected by the decision of the inferior Court. But even such a party will have no right of appeal unless he is in fact affected by the decision of the inferior Court.

5. What about one who is not eo nomine a party to the proceedings before the inferior Court? Can he, if he is adversely affected by the decision of the inferior Court, take up the matter to the superior Court, is the next question to be considered. It will be useful to understand as to what is meant by the right of appeal, and we will, therefore, quote the following passage from the decision of the Supreme Court in Shankar v. Krishnaji (AIR 1970 SC 1 at p. 4) in this connection :--

'Such a right was one of entering a superior Court and invoking its aid and interposition to redress the error of the Court below. Two things which were required to constitute appellate jurisdiction were the existence of the relation of superior and inferior Court and the power on the part of the former to review decisions of the latter. In the well known work of Story on Constitution (of United States) Vol. 2, Article 1761, it is stated that the essential criterion of appellate jurisdiction is that it revises and corrects the proceedings in a cause already instituted and does not create that cause. The appellate jurisdiction may be exercised in a variety of forms and, indeed, in any form in which the legislature may choose to prescribe. According to Article 1762 the most usual modes of exercising appellate jurisdiction, at least those which are most known in the United States, are by a writ of error, or by an appeal, or some process of removal of a suit from an inferior tribunal. An appeal is a process of civil law origin and removes a cause, entirely subjecting the fact as well as the law, to review and a retrial. A writ of error is a process of common law origin, and it removes nothing for re-examination but the law. The former mode is usually adopted in cases of equity and admiralty jurisdiction; the latter, in suits at common law tried by a Jury.'

The Supreme Court therein referred to with approval the decision of the Privy Council in Nagendra Nath Dey v. Suresh Chandra Dey (AIR 1932 PC 165) wherein the Board said (at p. 167) as follows :

'There is no definition of appeal in the Code of Civil Procedure, but their Lordships have no doubt that any application by a party to an Appellate Court, asking it to set aside or revise a decision of a Subordinate Court, is an appeal within the ordinary acceptation of the term.....'

and said :--

'S. 115 of the Civil P. C. circumscribes the limits of that jurisdiction but the jurisdiction which is being exercised is a part of the general appellate jurisdiction of the High Court as a superior Court. It is is only one of the modes of exercising power conferred by the Statute; basically and fundamentally it is the appellate jurisdiction of the High Court which is being invoked and exercised in a wider and larger sense.'

6. It is an accepted and well settled principle of law that no act of Court shall harm anyone, be he a party to the proceedings before it or not. Therefore, he shall have a right to redress the harm or wrong, if any, done to him by an inferior Court by invoking one or the other of the several kinds of appellate jurisdiction of a superior Court provided such a superior Court has been constituted by law in relation to the inferior court to correct the proceedings of the interior court and unless he is expressly precluded from having resort to that forum. Thus a pendente lite transferee of the interest of a party to the suit may appeal against the decision of the inferior court even if he has not eo nomine come on the record as a party thereto, if he is bound by that decision, of course, as the transferor could have done and subject to the same conditions and limitations applicable to the transferor and an absolute stranger to the proceedings before the inferior Court or a witness in those proceedings may invoke the revi-sional jurisdiction of the higher Court (where such jurisdiction exists in that Court) to have some adverse remarks made against him by the inferior Court expunged.

7. Where he, who invokes one or the other of the several kinds of appellate jurisdiction of a superior Court is one who is not a party to the proceedings, he can enter the superier Court only on showing that he has been adversely affected by the decision of the inferior Court, or in other words, only with the leave of the superior Court. As to whether one is adversely affected by the decision of the inferior Court is a pure question of fact to be decided in each case upon the facts and circumstances of that case.

8. It is bearing the above principles that this petition for leave to appeal has to be considered. As already stated neither Section 60 of the Land Acquisition Act. 1961 nor Section 96 of the Code bars an appeal by one who is not a party to the proceedings before the civil Court to which the matter has been referred by the Collector under Section 20 of the Act from the award passed by that Court which for the purposes of appeal is to be treated as a decree passed by that Court.

9. The next point to be examined is as to whether the petitioner, Board is adversely affected by the decision of the Subordinate Judge. It is not disputed that the cost of acquisition of the land in question is to be met by the K. S. E. Board. Admittedly the reference Court has enhanced the rate of land value from Rs. 950/- to Rs. 2500/- per acre. Hence the Board has been adversely affected by the decision the Subordinate Judge, to appeal against which, leave is sought for by the Board. Applying the principles stated above, leave to appeal has to be granted.

10. The above indicated approach to decide the question of leave to appeal and the conclusion we have arrived at as supported by the decision of the Supreme Court in State of Punjab v. Amar Singh (AIR 1974 SC 994) where that Court said (at pp. 1016-17) :--

'83. There is nothing in the Act or the Rules framed thereunder or in the Tenancy Act saying as to who can file an appeal or revision against the decision or order of the Collector exercising jurisdiction under Section 18. But in view of the long array of judicial decisions including that of the Financial Commissioner, there can be no doubt that the State Government or its Department can, if aggrieved, or prejudiced by such a decision go in appeal or revision against it.

84. Firstly there is a catena of authorities which, following the doctrine of Lindley, L. J., in re Securities Insurance Co., (1894) 2 Ch 410 have laid down the rule that a person who is not a party to a decree or order may with the leave of the Court, prefer an appeal from such decree or order if he is either bound by the order or is aggrieved by it or is prejudicially affected by it. As a rule, leave to appeal will not be refused to a person who might have been made eo nomine a party -- See Province of Bombay v, W. I. Automobile Association, AIR 1949 Bom 141; Heer Singh v. Veerka, AIR 1958 Raj 181 and Shivaraya v. Siddamma, AIR 1963 Mys 127; Executive Officer v. Raghavan Pillai, AIR 1961 Ker 114. In re B. an Infant (1958) 1 QB 12, Govinda Menon v. Madhavan Nair, AIR 1964 Ker 235.'

11. What is said above is sufficient to dispose of this civil miscellaneous petition by allowing it but the learned counsel on either side advanced very elaborate arguments on the question as to whether the K. S. E. Board can be said to be a 'person interested' coming under Section 20 of the Act and who can seek a reference of the matter to the civil Court. The learned counsel for the respondent in that connection relied on the decision of the Supreme Court in Municipal Corporation, Ahmedabad v. C. S. Patel ((1970) 1 SCWR 183) and the majority decision in Indo Swiss Time Ltd. v. Umrao (AIR 1981 Punj & Har 213 (FB)), while the learned counsel for the petitioner relied on the later decision of the Supreme Court in Himalaya Tiles & Marble (P.) Ltd. v. F. V. Coutinho (AIR 1980 SC 1118) and the dissenting judgment of the learned Chief Justice in the Full Bench case of the Punjab and Haryana High Court.

12. In Municipal Corporation, Ahmedabad v. C. S. Patel ((1970) 1 SCWR 183) certain lands were notified for acquisition. The land-owner impugned the said notification before the High Court in a writ petition wherein the Municipal Corporation was impleaded as a party respondent. The High Court quashed the impugned notification. The Municipal Corporation preferred an appeal against the decision before the Supreme Court. A preliminary objection was raised that the Corporation has no locus standi to prefer the appeal. The Supreme Court upheld this objection holding that the preliminary notification 'did not confer any interest in the Municipal Corporation so as to enable it to file an appeal against the order of the High Court allowing the petition.'

13. In Himalaya Tiles Marble (P) Ltd. v. Francis Victor Coutinho (AIR 1980 SC 1118) certain land was notified to be as needed under Section 4 of the L. A. Act, 1894 for the Himalaya Tiles and Marbles (Pvt.) Ltd. This was followed by a declaration under Section 6 of that Act. The Proceedings culminated in an award passed by the Collector under Section 12 of that Act. Thereafter, the land-owner challenged the acquisition proceedings in a writ petition filed before the High Court. The learned single judge quashed the said proceedings. The Himalaya Tiles and Marbles (Pvt.) Ltd. filed an appeal against this decision before the Letters Patent Bench. That Bench held that the appellant has no locus standi as it was not a 'person interested' within the meaning of Section 18 (1) of that Act which corresponds to Section 20 (1) of the Kerala Act, and consequently dismissed the letters-patent appeal. On further appeal to the Supreme Court said (At p. 1120) :--

'7. It seems to us that the definition of 'a person interested' given in Section 18 is an inclusive definition and must be liberally construed so as to embrace all persons who may be directly or indirectly interested either in the title to the land or in the quantum of compensation. In the instant case, it is not disputed that the lands were actually acquired for the purpose of the company and once the land vested in the Government, after acquisition, it stood transferred to the company under the agreement entered into between the company and the Government. Thus it cannot be said that the company had no claim or title to the land at all. Secondly, since under the agreement the company had to pay the compensation, it was most certainly interested in seeing that a proper quantum of compensation was fixed so that the company may not have to pay a very heavy amount of money. For this purpose, the company could undoubtedly appear and adduce evidence on the question of the quantum of compensation.'

14. The Supreme Court in the above case rested its decision on two facts: (i) 'the lands were actually acquired for the purpose of the company and once the land acquired vested in the Government, after acquisition, it stood transferred to the company under the agreement entered into between the company and the Government', and, therefore, 'it cannot be said that the company had no claim or title to the land, at all'; and (ii) 'since wnder the agreement the company had to pay the compensation, it was most certainly interested in seeing that a proper quantum of compensation was fixed so that the company may not have to pay a very heavy amount of money'.

15. Both the requirements mentioned by the Supreme Court in the Himalaya Tiles case (AIR 1980 SC 1118), each of which alone is sufficient to hold that a company or a person like the K. S. E. Board, for whom the land is acquired under an agreement entered into between it and the Government, is a 'person interested' mentioned in Section 20 (1) of the Act and as defined in Section 2 (2) of the Act, are obtained in the present case before us. On the general principles discussed earlier in this judgment and apart from that, also adopting and following the ratio deci-dendi of the Supreme Court decision in the Himalaya Tiles case, it has to be held that the K. S. E. Board has a right of appeal against the decision of the learned Subordinate Judge enhancing the rate of land value.

16. It is contended that the decision in the Himalaya Tiles case (AIR 1980 SC 1118) is opposed to the decision in Municipal Corporation, Ahmedabad v. C S. Patel ((1970) 1 SCWR 183). The contention is that both these decisions are of coequal Benches of the Supreme Court, and that therefore, we should choose to follow the earlier decision which, according to the learned counsel for the respondent, is better in point of law. In support of the proposition that the earlier decision of the Supreme Court is better in point of law, he relied on the majority decision in Indo Swiss Time Ltd. v. Umrao (AIR 1981 Punj & Har 213) (FB) and the single Bench decision of this Court in Commr. Trichur Municipality v Narayanan Nair, (1080 Ker LT 101) : (AIR 1980 Ker 170). According to him, when there are two conflicting binding decisions of two coequal Benches, one earlier in point of time and the other later in point of time, the incidence of earlier and later decisions, is of no consequence and the Court can follow that decision which commends itself to it as laying down the good law.

17. It is not necessary in this case to examine the question as to whether the incidence of earlier and later decisions is irrelevant when both the decisions are rendered by two Division Benches of equal strength of the Supreme Court and this is so. because, in our opinion the propositions laid down in the two decisions referred to above are not irreconcilable or inconsistent. As we understand those two decisions of the Supreme Court had applied the same test in both the cases, in the earlier case, the Ahmedabad Municipal Corporation case (1970) 1 SCWR 183, to hold, on the facts of that case, that no appeal lies at the instance of the Municipal Corporation, and in the subsequent decision the Himalaya Tiles case, to hold, again, on the facts of that case, that the appeal preferred by the company is maintainable. The test applied in both the eases is as to whether the appellant in the respective caaes was 'either bound by the order, or is aggrieved by it or is prejudicially affected by if, -- i. e., the general principle which subsequently found expression in State of Punjab v. Amar Singh (AIR 1974 SC 994). In the earlier decision the Supreme Court held that the preliminary notification under Section 4 of the Land Acquisition Act, 1894 (corresponding to Section 3 of the Kerala Act) 'did not confer any interest in the Municipal Corporation so as to entitle it to file an appeal against the order of the High Court allowing the petition' quashing that notification-mark, the Corporation was a party respondent before the High Court in the writ-petition. In the Himalaya Tiles case (AIR 1980 SC 1118), the land acquisition proceedings had, (as here) culminated in the award passed by the Collector under Section 12 of Land Acquisition Act, 1894 (corresponding to Section 12 of the Kerala Act) and so the Supreme Court said that 'it cannot be said that the company had no claim or title to the land at all' and that 'since under the agreement the company had to pay the compensation, it was most certainly interested in seeing that a proper quantum of compensation was fixed so that the company may not have to pay a very heavy amount of money'.

18. The question involved in the Indo Swiss Time Ltd. (AIR 1981 Punj & Har 213 (FB)) case of the Punjab and Haryana High Court was as to whether a company for whose benefit land is acquired under the provisions of the Land Acquisition Act, 1894 can be impleaded as a party in the civil Court to which the matter has been referred under Section 18 of that Act, and not, as in the case on hand, as to whether such a company, can prefer an appeal against the award, the civil Court has passed in the reference proceedings enhancing the compensation. So far as the Kerala Act is concerned, Section 55 (2) thereof provides that 8 local authority or a company for which land is acquired under the provisions of the Act, may in any proceedings before the Collector or the Court, appeal and adduce evidence for the purpose of the determination of the amount of compensation, but such local authority or company shall not be entitled to demand a reference under Section 20 of the Act. Thus, the question raised in the Indo Swiss Time Ltd. case does not arise under the Kerala Act.

19. In Commr. Trichur Municipality v Narayanan Nair (1980 Ker LT 101) : (AIR 1980 Ker 170), a learned Judge stated the two questions that were raised therein as follows :--

'Two questions arise in these petitions, (1) Whether a company or local authority in whose favour sn acquisition is made is a person interested and (2) whether such a person has a right of appeal against the order of compensation.'

20. On the 1st question the answer given is :-- Since such a person cannot demand a reference and has only the limited right to appear and adduce evidence, it is not a person interested. We are afraid that in view of the decision of the Supreme Court in the Himalaya Tiles case (AIR 1980 SC 1118) decided subsequently, the decision as aforesaid of this Court is not good law. The Supreme Court in the Himalaya Tiles Case said at page 1121 :--

'13. Thus, the preponderance of judicial opinion seems to favour the view that the definition of 'person interested' must be liberally construed so as to include a body, local authority, or a company for whose benefit the land is acquired and who is bound under an agreement to pay the compensation. In our opinion, this view accords with the principles of equity, justice and good conscience. How can it be said that a person for whose benefit the land is acquired and who is tc pay the compensation is not a person interested even though its stake may be extremely vital? For instance the land acquisition proceedings may be held to be invalid and thus a person concerned is completely deprived of the benefit which is proposed to be given to him. Similarly, if such a person is not heard by the Collector or a Court, he may have to pay a very heavy compensation which, in case he is allowed to appear before a Court, he could have satisfied it that the compensation was far too heavy having regard to the nature and extent of the land. We are, therefore, unable to agree with the view taken by the Orissa High Court or even by the Calcutta High Court that a company, local authority or a person for whose benefit the land is acquired is not an interested person. We are satisfied that such a person is vitally interested both in the title to the property as also in the compensation to be paid therefore because both these factors concern its future course of action and if decided against him seriously prejudice his rights. Moreover, in view of the decision of this Court referred to above, we hold that the appellant was undoubtedly a person interested as contemplated by Section 18 (1) of the Act. The High Court therefore, committed an error in throwing out the appeal of the appellant on the ground that it had no locus to file an appeal before the Bench'.

21. On the second question, the learned Judge in Commr., Trichur Municipality v. Narayanan Nair (1980 Ker LT 101 at p. 103) : (AIR 1980 Ker 170 at p. 171) said :--

'It is settled law that persons who are not parties to a proceeding but are aggrieved by the decree or order passed, can file an appeal questioning such order or decree after obtaining leave from the appellate Court. In other words while there is no right to file an appeal, the appellate Court can grant leave to do so.'

22. In our view the principle has been, stated a little too broadly, for the right of appeal under the Civil P. C., 1908 and the Kerala Land Acquisition Act, is not dependent upon as to whether a person is or is not a party to the proceedings before the inferior Court (as already seen) but on the question as to whether the appellant is 'either bound by the order, or is aggrieved by it or is prejudicially affected by it' as stated by the Supreme Court in Amar Singh's case (AIR 1974 Punj & Har 994). Even if one is a party to the proceedings before the inferior Court, he will not have a right of appeal unless he is bound by that Court's decision, or is aggrieved thereby or is prejudicially affected by it, though may be invariably only such a party before the inferior Court, will take up the matter before the appellate forum and therefore, the appellate Court will not ordinarily examine as to whether he can enter the superior Court. Not so, as far as one who is not a party to the proceedings before the inferior Court is concerned. He is prima facie neither bound by the decision of the inferior Court, nor aggrieved thereby, nor prejudicially affetced by it. So when he prefers an appeal, the appellate Court will have to be satisfied that the appellant is bound or aggrieved or prejudicially affected by the decision of the lower Court appealed against, This is the jurisdiction that is exercised by the appellate Court while considering an application for leave to appeal to it. On being satisfied that such an appellant has a right of appeal because he is bound, or aggrieved or prejudicially affected by the decision appealed against, the appeal is entertained, of course, subject to all other laws governing an appeal of that sort like those pertaining to limitation, Court-fees etc. On granting leave, the permission or grant of leave to appeal relates back to the date of preferring the appeal or in other words, it is not an ap-peal preferred on the date leave therefor is granted but one filed when it was filed in accordance with other laws governing such appeals. In view of what is said above, we do not think, that the law has been correctly stated in Commr., Trichur Municipality v. Narayanan Nair, (1980 Ker LT 101) : (AIR 1980 Ker 170) wherein it is said that since leave petitions were filed only long after the appeals were filed within which time the appeals themselves might have become barred, and since such appeals cannot exist without applications to grant leave, the appeals were incompetent. Such appeals unaccompanied by applications for leave for appeal would be defective appeals but not incompetent appeals. Such an appeal can be compared to an appeal filed out of time but without an application to condone the delay accompanying it. On an application to condone the delay being filed subsequently and that application being allowed by the appellate Court, the appeal becomes a proper appeal. So also on an application for leave to appeal being filed subsequently and on that being allowed, the appeal becomes one preferred on the date it was filed.

We allow this petition but without any order as to costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //