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A. Maralinga Kudumban and ors. Vs. theetharappa Mudaliar - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in115Ind.Cas.345
AppellantA. Maralinga Kudumban and ors.
Respondenttheetharappa Mudaliar
Cases ReferredTrinayani Dasi v. Krishna Lal Dey
Excerpt:
land acquisition act (i of 1894), sections 30 and 54 - reference by land acquisition officer--decision of sub-judge on reference, whether decree--appeal, competency of--subject-matter of appeal less than rs. 5,000--forum of appeal, district court or high court--court-fee payable--court fees act (i of 1870), section 8, schedule i, article 1. - 1. these appeals arise out of land acquisition proceedings in the tinnevelly district. some inam lands were acquired under the land acquisition act and the land acquisition officer passed an award and referred to the civil court under section 30 the claims of the contending parties. the inamdar alleges that he is entitled to the land and not to the melvaram only and claims the whole of the award. a number of tenants, alleging that they have occupancy right in the land acquired claimed a portion of the amount awarded as compensation. the subordinate judge, tuticorin, held that the tenants had no occupancy right in the land and that the whole of the amount of compensation should be paid to the inamdar. the tenants have preferred these appeals. the office asked for directions from the.....
Judgment:

1. These appeals arise out of Land Acquisition proceedings in the Tinnevelly District. Some inam lands were acquired under the Land Acquisition Act and the Land Acquisition Officer passed an award and referred to the Civil Court under Section 30 the claims of the contending parties. The inamdar alleges that he is entitled to the land and not to the melvaram only and claims the whole of the award. A number of tenants, alleging that they have occupancy right in the land acquired claimed a portion of the amount awarded as compensation. The Subordinate Judge, Tuticorin, held that the tenants had no occupancy right in the land and that the whole of the amount of compensation should be paid to the inamdar. The tenants have preferred these appeals. The office asked for directions from the Admission Court as regards the amount of Court-fee payable on the memorandum of appeal in each case and as regards the maintainability of the appeals in the High Court, One of us sitting in the Admission Court ordered notice to the Government Pleader and to the respondent and directed that the appeals be posted before a Bench of two Judges as the questions raised were of general importance. Mr. Muthiah Mudaliar who appears for the respondent raises the further point, that no appeal lies against the order of the Subordinate Judge.

2. Three questions arise for decision:

(1) Does an appeal lie against the order of the Subordinate Judge?

(2) If it does, to what Court should the appeal be presented?

(3) What is the amount of Court-fee payable on the memorandum of appeal?

3. Question (1)--Section 54 of the Land Acquisition Act of 1894 provides for an appeal to the High Court from the award or any part of the award of the Court in any proceedings under this Act. In Rangoon Botatoung Co., Ltd. v. Collector of Rangoon : (1912)14BOMLR833 their Lordships of the Privy Council held that no appeal lay to His Majesty in Council from a decision of the Chief Court of Lower Burma on a reference to that Court by the Collector of Rangoon in proceedings under the Land Acquisition Act. Lord Macnaghten in delivering the judgment of the Privy Council observes: 'A right of appeal from any decision of any tribunal must be given by express enactment, A special and limited appeal is given by the Land Acquisition Act from the award of the 'Court' to the High Court. No further right of appeal is given'. The principle of the Privy Council decision is that an award is made by the Land Acquisition Officer as an arbitrator and an appeal would lie against the award as provided by the Act and no further. A party who objects to the award may ask the Land Acquisition officer to make a reference to the Court under Section 18 and the Court may, for sufficient reasons, increase the award, and the amount awarded by the Court becomes the award and an appeal will lie against such award under Section 54. In order to give the right of appeal to the Privy Council, Act XIX of 1921 was passed adding a subsection to Section 26 and amending Section 54 of the Land Acquisition Act of 1894. Clause (2) added to Section 26 says: 'Every such award shall be deemed to be a decree and the statement of the grounds of every such award a judgment within the meaning of Section 2, Clause (2) and Section 2, Clause (9), respectively of the Code of Civil Procedure, 1908'. This amendment does not help the appellant as a decision in a reference under Section 30 is not an award within the meaning of Section 54. The decision of a Court as to the rights of the contending parties on a reference under Section 30 cannot be said to be an award under the Act. After the award has been made the Court determines who are entitled to the whole or a portion of the award. As Section 54 is not applicable to the present case we have to see whether an appeal lies under any other provision of law. It is urged by Mr. Muthiah Mudaliar that an appeal is a creature of the Statute and unless the Statute expressly gives it, an appeal would not be competent merely by reason of the provisions of the Civil Procedure Code being followed by the Court in all proceedings on a reference by the Land Acquisition Officer. When the claims of the contending parties are determined by the Court that decision is binding en them and no suit will lie to set it aside. In Bhandi Singh v. Ramadhin Roy 10 C.W.N. 991 : 2 CRI.L.J. 359 some persons who were parties to Laud Acquisition proceedings asked for a reference under Section 18 of the Act. They did not appear at the hearing of the same and it was struck off. It was held that a suit instituted by the same persons in the Civil Court for the apportionment of the compensation money was barred by Sections 102 and 103, Civil Procedure Code of 1882. Mookerjee, J., observes at page 999 Page of 10 C.W.N.--[Ed.]; 'the party at whose instance the reference is made under Section 18 is virtually the plaintiff and if the objection relates to the measurement of the land and the amount of the compensation, the Collector is the defendant' and further observes that as these parties were absent it was rightly dismissed. In Ramachandra Rao v. Ramachandra Rao : (1922)24BOMLR963 the Privy Council held that a decision of a Civil Court as to title on a reference to it under the Land Acquisition Act was res judicata in subsequent proceedings. They held that the decision in such cases was not an award and disapproved of the decisions in Trinayani Dassi v. Krishna Lal Dey 6 Ind. Cas. 157 : 17 C.W.N. 935 and Balaram Bhramatar Ray v. Sham Sunder Narendra 23 C. 526. Their Lordships observe at page 330 Page of 45 M.--[Ed.]:

4. From the moment when the sum has been deposited in Court under Section 31, Sub-section (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 be 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' and they further observe that:

If the decision was wrong, it ought to have been appealed from in due time.

5. When there is a litigation in Court in which the civil rights of parties are determined, such litigation, though not called a suit, yet is a civil proceeding and as the Civil Procedure Code is made applicable to such proceedings, unless the right of appeal given under the Civil Procedure Code is taken away expressly it cannot be held that the right of appeal does not exist.

6. Another argument in favour of the appellant is that the term decree is applicable to the decision of the Court on the rights of the contending parties and, therefore, an appeal lies against the decision under Section 96, Civil Procedure Code. The word 'decree' according to the civil Procedure Code means 'the formal expression of an adjudication which BO far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit.' It is urged for the respondent that there must be a suit so that the definition of the word 'decree' may be applied to Land Acquisition proceedings. The word 'suit' is not defined in the Code and it is difficult to see why the word should not be applied to any contentious proceedings in a Civil Court in which the rights of parties are in question and in which the Court is asked to determine them. In Hurro Chunder Roy Chowdhry v. Sooradhonee Debia B.L.R. Sup. Vol. 985 at p. 990 : 9 W.R. 402 Sir Barnes Peacock observes: 'the word 'suit' does not necessarily mean an action, nor do the words 'cause of action' and 'defendant' necessarily mean cause upon which an action has been brought, or a person against whom an action has been brought, in the ordinary restricted sense of the words. Any proceeding in a Court of Justice to enforce a demand is a suit; the person who applies to the Court is a suitor for relief; the person who defends himself against the enforcement of the relief sought is a defendant; and the claim, if recoverable, is a cause of action.' In this case the Subordinate Judge has decided that the amount is payable only to the respondent and not to the appellants. The appellants' claim to a portion of the award is a civil right and the Subordinate Judge has given a decision affecting their right. Such a decision is a decree within the meaning of Section 2, cl. {2) of the Civil Procedure Code. If it is a decree then an appeal lies under Section 96, Civil Procedure Code.

7. Apart from the question whether the decision of the Subordinate Judge amounts to a decree or not when proceedings are before a Civil Court such proceedings are governed by the usual procedure applicable to such Court. References under Section 30 are to the Court and, therefore, the right of appeal given by Section 96, Civil Procedure Code, unless expressly taken away would attach to them and Section 53 which makes the Civil Procedure Code applicable to proceedings before Courts does not take away right under the Civil Procedure Code. The law on this point is clearly laid down by Lord Haldane in National Telephone Co. v. Postmaster General (1913) A.C. 546 : 82 L.J.K.B. 1197 : 109 L.T. 962 : 57 S.J. 661 : 39 T.L.R. 637, 'When a question is stated to be referred to an established Court without more, it, in my opinion, imports that the ordinary incidents of the procedure of that Court are to attach, and also that any general right of appeal from its decisions likewise attaches.'

8. In this connection a reference may be made to Parthasarathy Naidu v. Koteswara Rao Garu : (1924)46MLJ201 where a Full Bench of this Court held that the High Court could entertain an application under Section 115 against the decision of a District Judge in an election matter. Under Section 57 of the Local Boards Act XIV of 1920 a District Judge is empowered to determine whether a member is disqualified or not under Sections 5 or 56. Under Clause (2) the decision of the District Judge is final. Notwithstanding this clause the Full Bench held that inasmuch as the District Judge was competent to entertain and hear objections under Section 57 the High Court could revise his order under Section 115, Civil Procedure Code. The argument that 'District Judge', was persona designata did not find favour with the Full Bench. The reference under the Land Acquisition Act is to the 'Court' and the word 'Court' is defined as 'the Principal Civil Court of Original Jurisdiction unless the Local Government has appointed some other officer to do the work.' We hold that an appeal is competent against the order of the Subordinate Judge.

9. Question II. The amount involved in these appeals is less than Rs. 3,000 and an appeal, therefore, under the Madras Civil Courts Act lies to the District Court as the amount does not exceed Rs. 5,000. It is urged that Section 54 provides for an appeal to the High Court and the amended section makes it clear that an appeal can only lie to the High Court. As we have held that the appeal is not under Section 54 of the Land Acquisition Act this argument is of no avail. If the appeal is against the award, that is, against the amount of the award, no doubt an appeal would lie to the High Court. But we are satisfied that it is not an appeal against the award but it is only against an order determining the civil rights of two sets of contending parties. It was only recently that Subordinate Judges were invested with jurisdiction under the Land Acquisition Act and at the time when the amending Act was passed Subordinate Judges in this Presidency were not invested with jurisdiction under the Act, and that may very probably have been the reason for leaving the appeal to the High Court from the District Court untouched. As we hold that the order of the Subordinate Judge is a decree in civil proceedings the appeal must lie to the District Judge as the amount involved is less than Rs. 5,000.

10. Question III. The amount of Court-fees has to be determined with reference to the Court-Fees Act. Section 8 cannot apply to this case as this is not an appeal against an award. Section 8 refers specifically to the amount awarded to and the amount claimed by the appellant. There is no dispute here as regards the amount of compensation awarded. Section 8 can only apply to cases where the claimant claims more than the amount awarded by the lower Court. If Section 8 is not applicable the only other provision of the Court-Fees Act applicable to a case like this is Article 1 of the First Schedule, namely, 'plaint or memorandum of appeal (not otherwise provided for in this Act).' There is no specific provision as regards appeals in such cases as these and, therefore, the Court-fees payable is the ad valorem fee. It has been the practice of this Court to demand ad valorem fee is appeals under the Land Acquisition Act and the practice is the same in the Allahabad High Court as is clear from Sheo Rattan Rai v. Mohri 21 A. 354 : A.W.N. (1899) 96. See also Trinayani Dasi v. Krishna Lal Dey 14 Ind. Cas. 724 : 39 C. 906 : 17 C.W.N. 933.

11. In the result these appeals will be returned to the appellants for presentation to the District Court and one mouth's time will be allowed for paying the necessary Court-fee. No order as to costs.


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