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A.M. Chengalvaroya Chetty Vs. the Collector of Madras and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai High Court
Decided On
Case NumberCivil Revn. Petn. No. 1424 of 1961
Judge
Reported inAIR1965Mad376
ActsLand Acquisition Act - Sections 3, 4(1), 11, 18, 26(2), 30, 31, 31(2), 49 and 54; Code of Civil Procedure (CPC), 1908 - Sections 96 and 115
AppellantA.M. Chengalvaroya Chetty
RespondentThe Collector of Madras and ors.
Cases ReferredSwaminatha v. Kuppusami
Excerpt:
.....of petition ; a piece of land of one d was acquired by the government under the provisions of the land acquisition act, (i of 1894). d applied for payment out of the entire compensation amount. even prior to this one c had purchased the said land in court auct on in execution of a mortgage decree obtained by him against d. this fact was not known to the land acquisition officer. the compensation amount was directed to be distributed between d and certain persons who had mortgage claims over the property. subsequently c came to know of the land acquisition proceedings and he applied to the collector to adjudicate his right to the compensation amount. the collector made a reference to the city civil court, madras, concerning the title of c to obtain the compensation in preference to d...........sought to be revised is one that rejected a reference made to the court under ss. 18 and 31 of the land acquisition act, on the ground that the amount of compensation had already been paid out to one of the claimants. if an appeal were to lie against such an order, the present civil revision petition, which is filed under s. 115 c.p.c. will be incompetent.(2) before proceeding further with the consideration of the question, we shall set out briefly the facts that have given rise to it.(3) two items of land, r. s. nos. 1403 and 1404/2, lying in vanniya teynampet in malapore area, were acquired by the government for providing quarters for the staff of the posts and telegraphs department. the notification under s. 4(1) of the land acquisition act is dated 18-4-1956. the owner of the.....
Judgment:
(1) The substantial question that arises for consideration in this civil revision petition relates to its maintainability. The order sought to be revised is one that rejected a reference made to the court under Ss. 18 and 31 of the Land Acquisition Act, on the ground that the amount of compensation had already been paid out to one of the claimants. If an appeal were to lie against such an order, the present civil revision petition, which is filed under S. 115 C.P.C. will be incompetent.

(2) Before proceeding further with the consideration of the question, we shall set out briefly the facts that have given rise to it.

(3) Two items of land, R. S. Nos. 1403 and 1404/2, lying in Vanniya Teynampet in Malapore area, were acquired by the Government for providing quarters for the staff of the Posts and Telegraphs Department. The notification under S. 4(1) of the Land Acquisition Act is dated 18-4-1956. The owner of the property was one Doraiswami Mudaliar, who is the second respondent to this petition. He applied for payment out of the entire compensation for the two survey numbers. It appears however that even earlier, in execution of a mortgage decree obtained against him, the petitioner, Chengalavaraya Chetti, had purchased one of the two above mentioned items, namely, R. S. No. 1403. This fact was not known to the Land Acquisition Officer. The compensation for both the items of land--we are concerned in this case only with one of them, namely, R. S. 1403--was fixed at Rs. 1,71,879-48. The amount was directed to be distributed between the second respondent and certain persons who had mortgage claims over the property. Doraiswami Mudaliar contested the adequacy of the compensation, and at his instance a reference under S. 18 was made to the City Civil Court, Madras which duly registered the case as L. A. C. 60 of 1958. Shortly thereafter, Chengalvaraya Chetti, the petitioner, obtained information about the land acquisition proceedings and he applied to the Collector to adjudicate his right to the compensation amount, relative to R. S. 1403. In due course, the Collector made a reference to the City Civil Court in L. A. C No. 153 of 1958 concerning the title of the petitioner to obtain the compensation in preference to Doraiswami Mudaliar. While making the reference, the Collector invited the attention of the City Civil Court to the earlier reference made by him--L. A. C. No. 60 of 1958--and suggested to the court to dispose of both of them together, It is a matter for regret that the court ignored this advice. Each one of the references was dealt with separately; Doraiswami Mudaliar, who alone could have known the connection between the two, did not appear to have informed the court about the desirability of both the cases being disposed of together. The result was that L. A. C. 60 of 1958 was disposed of first. This enabled Doraiswami Mudaliar to obtain payment of the entire compensation amount.

(4) When L. A. C. 153 of 1958 came up for hearing subsequently, the learned Principal City Civil Judge took the view that inasmuch as the compensation moneys had already been paid out to the second respondent, the court could not consider the question of title as between the rival claimants; he directed Chengalvaraya Chetti to file a suit to establish his claim and obtain payment of the compensation amount in respect of the property purchased by him in court action. Chengalvaraya Chetti has now filed this civil revision petition challenging the correctness of that order.

(5) A preliminary objection has been taken on behalf of the second respondent that as an appeal would lie against the decision of the City Civil Court in the instant case, this court would not be competent to entertain a revision petition under S. 115 C.P.C. In other words, the argument pressed on us against the maintainability of this petition is that, as the effect of the order of the lower court in the instant case is to affirm the award of the Collector, it should itself be regarded as an award within the meaning of S. 54 of the Land Acquisition Act, and the remedy of an aggrieved party against such an award will be to file an appeal. On the other hand, it has been argued on behalf of the petitioner that as the order of the City Civil Court did not relate either to area of the land, the amount of compensation therefor, or to the apportionment of the same amongst the claimants, it should not be regarded as an award under S. 54 and that therefore the remedy of the petitioner would lie under S. 115 C.P.C.

(6) Section 54 of the Land Acquisition Act confers a right of appeal, to an aggrieved party, to the High Court from an award or part of an award passed by the court. The term "award" has not been defined in the Act but it will be plain from the various provisions contained in it that the term has been used in regard to compensation for the land acquired or the disposal of the compensation amount either awarded by the Collector or as fixed by the Court on a reference. This S. 54 of the Act relates to the compensation fixed by court and it gives a right of appeal not merely in respect of an award, properly so-called, that is, one relating to compensation, but to other matters relating to the disposal of the compensation as well.

(7) Mr. Kumaramangalam appearing for the petitioner has contended that inasmuch as an award can only relate to the matters covered by S. 11, an adjudication simpliciter of title to receive the compensation amount will not come within the terms of S. 54 and that therefore the refusal on the part of the learned City Civil Judge to entertain the reference on the ground that the compensation amount had been paid over to one of the claimants already, cannot amount to an award.

(8) There is a fallacy in this argument. While it can be conceded that the term "award" as used in the Act imports the idea of compensation to the land with respect to the property acquired, and appeal against an order passed in the exercise of the jurisdiction conferred on a court by the Act, need not necessarily rest, for its maintainability, upon S.

54. For example, where the order complained of is such that an appeal would lie against it to a higher court under any other statute, it cannot be argued that because S. 54 of the Act confers a right of appeal only against awards, there can be no appeal against the order. An order of a court determining the right of a person to compensation money, even if it be not an award, might amount to a decree within the definition of that term in the Civil Procedure Code. Indeed, S. 26(2) of the present Act deems every award passed by a judge to be a decree. In Ramachandra Rao, ILR 45 Mad 320: (AIR 1922 PC 80) the Privy Council observed:

"The award as constituted by statute is nothing but an award which states the area of the land, the compensation to be allowed and the apportionment among the persons interested in the land of whose claims the Collector has information, meaning thereby people whose interests are not in dispute; but from the moment when the sum has been deposited in court under S. 31(2), the functions of the award have ceased; and all that is left is a dispute between interested people as to the extent of their interest. Such dispute forms no part of the award, and it would indeed by strange if a controversy between two people as to the nature of their respective interests in a piece of land should enjoy certain rights of appeal, which would be wholly taken away when the piece of land was represented by a sum of money paid into court". It is implicit in the observations extracted above, that if rights of parties are adjudicated by a court, on a reference by the Collector, an appeal would lie not withstanding the fact that such adjudication is not comprehended by the term "award" as used in the Act. This view was reaffirmed by the Privy Council in Mt. Bhagvati v. Mt. Ramkali, ILR (1939) All 460: (AIR 1939 PC 133). But the two cases, however, were concerned with the question whether an adjudication as to title on a reference under Ss. 18 and 31 of the Act would be res judicata in a subsequent suit between the parties. It was therefore thought by the learned Judges in Krishnamoorthi Iyer v. Special Dy. Collector of Land Acquisition, Kumbakonam, ILR 59 Mad 554; (AIR 1936 Mad 514) that the decision of the Judicial Committee in ILR 45 Mad 320; (AIR 1922 PC 80) could not be considered as an authority regarding the appealability of the order passed by the court. They held that as an appeal could lie only where a statute expressly provided for one, there could be an appeal only from an award as contemplated by the Land Acquisition Act and a decision under Section 49 of that Act would not be appealable. But inMahalinga v. Theetharappa Mudaliar, AIR 1929 Mad 223, it was held that a decision on a reference under S. 30, though it might not amount to an award within the meaning of S. 54 and as such no appeal would lie against it under hat provision, would still be appealable under the provisions of S. 96, C.P.C.

Again the view expressed in ILR 59 Mad 554: (AIR 1936 Mad 514), has not been accepted by the Full Bench in Chikkanna Chettiar v. Perumal Chettiar, AIR 1940 Mad 474: ILR (1940) Mad 791. That case was concerned with the order made by a Judge appointed under S. 3(d) of the Land Acquisition Act, allocating the compensation amount; that the order was held to be appealable as a decree. Therefore, the effect of the question of title to compensation money made by a Court acting under Ss. 30 and 31(2) of the Act will amount to a decree and will be appealable as such under the provisions of the Civil Procedure Code. This right appeal is independent of the one conferred by S. 54 of the Land Acquisition Act.

(9) Learned counsel for the petitioner next contended that although the order of a Court under S. 30 or S. 31 deciding the question of title between the competing claimants might amount to a decree, still an order which did not purport to decide the matter but simply refused to entertain the reference could not be said to decide the rights of parties, particularly when they were directed to establish their rights in a separate suit; and that, therefore, such an order would not be appealable. It was further argued that the Court in the instant case must be deemed to have not entered into the reference at all, as its order amounted to a refusal to go into the question involved in it. Support for this contention was sought from the decision in Dembeswar Sarma v. Collector of Sibasagar, 39 Ind Cas 637: (AIR 1918 Cal 445 (2)), where the Calcutta High Court held that no appeal would lie to the High Court against an order of the District Judge dismissing a reference under the Land Acquisition Act, on the ground that it was barred by limitation. That case was concerned with a reference made under S. 18 of the Act. We may also point out that this decision has been referred to with approval in Muthuveerappa Pillai v. Revenue Divisional Officer, Melur, AIR 1931 Mad 26 (1). With great respect to the learned Judges, we find ourselves unable to accept that view. Once there is a proper reference before the Court, all orders thereon finally disposing of the reference must be regarded as affirming or modifying the award passed by the collector. If the matter relates to the condensation amount of its apportionment, an appeal will lie against it under S. 54. If it has the effect of adjudicating the rights of parties, an appeal will lie under the relevant provisions of the Civil Procedure Code.

The decision in AIR 1931 Mad 26 (1), itself recognises that once a proper reference comes before the Court the final order on it must amount to an award. In Revenue Divisional Office and Land Acquisition Officer v. Valiaraja, AIR 1944 Mad 539, Wadsworth, J. held that where the Court passed an order of remand remitting the case back to the Collector, no right of appeal would exist against such an order and that the remedy of the aggrieved party would lie under S. 115, C.P.C. But this view has not been accepted in Special Tahsildar, Land Acquisition v. Padayachi, , where one of us pointed out that the above decision did not consider the earlier decision in AIR 1931 Mad 26 (1). That was a case where there was a remittal of the award for further consideration by the Collector. It was held that such a remittal amounted to a decision having the effect of nullifying the award of the Land Acquisition Officer and would be appealable under S. 54 of the Act. This view is supported by the decision of the Patna High Court in Nitai Dutt v. Secy. of State, ILR 3 Pat 304; (AIR 1924 Pat 608). Referring to an order by the District Judge rejecting the claim of an applicant, the learned Judges observed that the effect of the order was to confine the Collector's award and such an order would come within the purview of S. 54. The Allahabad High Court has, however, taken a different view in Makhanlal v. Secy., of State, AIR 1934 ALL 260, where it was held that where a District Judge declined to exercise jurisdiction on a reference made by the Collector under S. 18, a revision petition to the High Court would be competent.

(10) In our opinion, the view taken by the Pant High Court is consistent with the provisions of the statute. Orders passed by a Court, on a reference made to it under the provisions of the Land Acquisition Act, finally disposing of it, must in our view, be subject to an appeal, as they will have the effect of either confirming the award or adjudicating title to the compensation amount which will be res judicata in later proceedings. It will be immaterial on what ground such orders are passed by the Court, whatever it be on the merits or one some technical point.

(11) Learned counsel for the petitioner, however, placed reliance on Bansidhur v. Secy. of State, AIR 1927 Cal 533, where the question related to an order passed by the Land Acquisition Judge dismissing an application for restoration of a previous application dismissed for default. Such an order cannot obviously amount to either an award under S. 54 of the Land Acquisition Act, or a decree under S. 96, C.P.C. Rahimuddin Shaikh v. Sarifan Nesa, AIR 1954 Assam 92, is a similar case. In Minnalavu Ammal v. Revenue District Officer, AIR 1958 Mad 365, when a reference came up before the Court, the Court, holding that the issue of title had already been decided by the Land Acquisition Officer, returned the reference and decline to proceed further with the adjudication of the dispute. Rajagopalan, J., while pointing out that the Court had failed to exercise its jurisdiction in adjudicating on the reference, interfered under S. 115, C.P.C. The question whether an appeal was the proper remedy against the order of the Court was not considered there. Equally without discussion, it was assumed in Swaminatha v. Kuppusami, AIR 1938 Mad 955, that an appeal would lie against an order refusing to go into the question of title on a reference under S. 31.

(12) For the reasons indicated by us earlier, we are of opinion that where there has been a valid reference to the Court, whether under S. 18, 30 or 31, any order passed by the Court finally disposing of the matter so far as it was concerned would be appealable. As an appeal would lie against the order complained of in the present case, we are unable to exercise our powers of revision under S. 115, C. P. Code. This civil revision petition fails and is dismissed. There will be no order as to costs.

(13) Petition dismissed.


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