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T. AYYADURAI versus REVENUE DIVISIONAL OFFICER2. T. MAHALINGAM

High Court of Madras

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T. Ayyadurai v. Revenue Divisional Officer2. T. Mahalingam - C.R.P.PD.(MD).No.895 of 2006 [2007] RD-TN 879 (9 March 2007)

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED : 09/03/2007

CORAM

THE HONOURABLE MR.JUSTICE S.RAJESWARAN

C.R.P.PD.(MD).No.895 of 2006

and M.P.(MD).No.1 of 2006

T. Ayyadurai ... Petitioner Vs.

1. Revenue Divisional Officer

(Ring Road Scheme)Madurai

2. T. Mahalingam ... Respondents

Prayer

Petition filed under Article 227 of the Constitution of India against the fair and decreetal order made in I.A.No.403 of 2005 in L.A.O.P.No.51 of 2005 dated 21.11.2005 on the file of the III Additional Sub Judge, Madurai.

For Petitioner : Mr. R.S.Ramanathan

For Respondent : Mr. R.Subramanian for R2 Mr. Gandhiraj, AGP(CS)for R1

:ORDER



The Claimant in L.A.O.P.No.51 of 2005 on the file of the III Additional Sub Judge, Madurai is the Revision Petitioner. He is aggrieved by the order of the Court below dated 21.11.2005 made in I.A.No.403 of 2005 in L.A.O.P.No.51 of 2005.

2. I.A.No.403 of 2005 was filed by the second respondent herein under Order 1 Rule 10(2) C.P.C., to implead him in L.A.O.P.No.51 of 2005.

3. In the affidavit filed in support of the impleading application, the second respondent stated that he is the brother of the Revision Petitioner and the acquired property is a joint family property belonging to himself and the Revision Petitioner. Hence it is necessary to decide the nature of nucleus of the acquired property for which he had to be impleaded as a party to the proceeding to prove the nature of the property.

4. The Court below allowed the I.A.No.403 of 2005 on 21.11.2006 and aggrieved by the same, the above Civil Revision Petition has been filed by the Revision Petitioner under Article 227 of the Constitution of India.

5. Heard the learned Counsel for the petitioner and the learned Additional Govt. Pleader (Appellate Side) for the first respondent and the learned counsel for the second respondent. I have also gone through the documents and Judgements referred to by them in support of their submissions.

6. The learned counsel for the petitioner contended that the Court below has exceeded its authority by allowing the application filed under Order 1 Rule 10(2) C.P.C. and the same is not applicable to a proceeding initiated under Section 18 of the Land Acquisition Act. He further submitted that the property acquired is a self acquired property of the Revision Petitioner and even otherwise the title and ownership of the property could not be decided by the reference Court under Section 18 of the Land Acquisition Act. He relied on the following decision on the Supreme Court in support of his submission.

7. In AIR 1996 SC 1513 (Smt.Ambey Devi, Appellant V. State of Bihar and another, Respondents.), the Hon'ble Supreme Court held as follows:

"Para 3. The learned counsel for the appellant contended that under Section 53 of the Act, the procedure prescribed under C.P.C. Is applicable to the proceedings of the Civil Court unless they are inconsistent with any of the provisions contained in the Act. Since Order 1, Rule 10, C.P.C. Requires impleadment of all necessary party to the proceedings, she is entitled to the same compensation as was awarded to the order claimants. We find no force in the contention. The scheme of the Act is inconsistent with C.P.C. Regarding the entitlement to claim compensation under the Act. The C.P.C. Provides only the procedural format to adjudicate the dispute. After the award was made under Section 11 of the Land Acquisition Officer was required to issue notice under Section 12 of the parties. As contemplated under Section 30 of the Act, the appellant is entitled to receive the compensation either under protest or without protest. When the compensation is received under protest under sub- Section(1) of Section 18 the application in writing has to be made within the limitation prescribed under Section 18(2) to the Land Acquisition Officer objecting to either extent of the land, classification, value of the land or apportionment of the compensation and upon receipt thereof reference to Court would be made. Thereunder the applicant shall be required to stage the grounds on which he/she objects to the compensation etc. Valid reference is a pre- condition for the Civil Court to adjudicate the objections raised in the reference application. In this case, it is found by the High Court that the appellant had not made any application under Section 18(1). The jurisdiction of the Civil Court to determine higher compensation, as laid down under Section 23 of the Act, would arise only when a valid reference has been made under Section 18 within the prescribed limitation. The jurisdiction of the Court is founded on a valid reference and then the Civil Court gets jurisdiction to determine the compensation on the basis of the objections raised by the claimant. Para 4. We accept the finding of the High Court that the appellant had not made any application under Section 18 though the appellant has asserted that she did make an application but no evidence has been placed before the High Court or in this Court. Thus, it is difficult to accept that such an application was in fact made before the Land Acquisition Officer within the limitation prescribed under Section 18(2) of the Act. Accordingly, we hold that the appellant had not filed any application, as required under Section 18(1) read with Section 18(2) of the Act. Section 53 does not apply to the facts of the case. The procedure prescribed under Sections 18 and 30 is inconsistebnt with the procedure prescribed under Order 1, Rule 10, C.P.C. Order 1, Rule 10 C.P.C would apply to implead a necessary or proper party to effectuate complete adjudication of all the disputes having arisen between all the necessary or proper parties who may be bound by the decision. That question does not arise since inconsistent procedure has been prescribed under the Act. As held earlier, making an application in writing under sub-section (1) and within the limitation prescribed under sub-section (2) of Section 18 are conditions precedent for the Land Acquisition Officer to make a reference under Section 18: only on its receipt, under Section 20 Civil Court gets jurisdiction to issue notice and thereafter to conduct enquiry, as contemplated under the Act. At that stage, the procedure of trial etc., as contemplated under the C.P.C would apply and Section 53 of the Act would become applicable. It is an admitted position that the co-owner filed an application and had sought reference under Section 18 in respect of his share only. So,. It is, as a fact, claims for compensation in specie and was paid towards 1/4th share to all the claimants. By no stretch of imagination, the application under Section 18(1) by one of the co-sharers would be treated as one made on behalf of all the co-sharers. Accordingly, we hold that the appellant is not entitled to lay any higher compensation pursuant to an award made by the reference Court under Section 26 at the instance of one of the co-owners."

8. In the above decision, the Supreme Court held that valid reference is a pre-condition for the Civil Court to adjudicate the objections raised in the reference application and procedure prescribed under Section 18 and Section 30 of the Land Acquisition Act inconsistent with the procedure prescribed under Order 1, Rule 10 C.P.C. The Supreme Court further held that the application under Section 18(1) of the Land Acquisition Act by one of the co-sharers could not be treated as one made on behalf of all the co-sharers and failure of other co-owners to file reference would dis entitle them to seek enhancement of compensation of their share on the basis of reference by other co-owners.

9. In (1997) 9 SCC 710 (Land Acquisition Officer Vs. Shivabai and others), the Hon'ble Supreme Court held that it is now settled position in law that the claimants to receive compensation under protest and who make application under Section 18(1) of the Land Acquisition Act alone are entitled to seek a reference and 3rd parties who have been impleaded, have no right to claim higher compensation by circumventing the process of reference under Section 18 of the Land Acquisition Act.

10. In A.I.R 2007 SC 215 (Shyamali Das V. Illa Chowdhry and Others), the Hon'ble Supreme Court held as follows:

"Para 19. The Act is a complete code by itself. It provides for remedies not only to those whose lands have been acquired but also those who claim the awarded amount or any apportionment thereof. A Land Acquisition Judge derives its jurisdiction from the order of reference. It is bound thereby. Its jurisdiction is to determine adequacy or otherwise of the amount of compensation paid under the award made by the Collector. It is not within its domain to entertain any application of pro interesse suo or in the nature thereof.

11. In the above decision also, the Supreme Court held that the order of the Court below in rejecting an application filed under Order 1, Rule 10(2) C.P.C by holding that as the jurisdiction of the reference Court arises out of the reference, Order 1, Rule 10(2) of C.P.C is not maintainable.

12. Per Contra, the learned counsel for the second respondent submitted that second respondent has been already examined and cross-examined and in such circumstances, the Revision Petitioner has acquised to his impleadment, and therefore it cannot be challenged now by filing the above Revision Petition.

13. I have considered the rival submissions carefully with regard to facts and citations.

14. After going through the entire records and the Judgements referred to earlier, I am of the considered view that the trial Court has committed an illegality in allowing the application filed by the second respondent herein under Order 1, Rule 10(2) C.P.C.

15. Second respondent's case is that he is a joint owner of the property acquired along with the Revision Petitioner and he has to be impleaded to decide the nature of nucleus of the acquired property. It is not his case that he has also accepted the award under protest and sought for reference for enhancement of compensation. In such circumstances, this application itself filed under Order 1, Rule 10(2) C.P.C. Is not maintainable before the reference Court.

16. The reference Court gets its jurisdiction from a valid order of reference and the reference Court is expected to determine the adequacy or otherwise of the amount of compensation paid under the award. It is not within the domain of the reference Court to decide the nature of the nucleus of the acquired property as contended by the second respondent herein.

17. When the impleading petition is not maintainable as held by the Hon'ble Supreme Court in the above decision, the subsequent examination and cross-examination of the second respondent herein by the reference Court will not make the impleading application maintainable. Further this being a legal defect cannot be cured at all. Therefore the evidence given by the second respondent in the reference Court is to be eschewed.

18. Therefore in the absence of a valid reference, the application filed in I.A.403 of 2005 is not at all maintainable. That itself is sufficient to dismiss the impleading application. Further, even assuming for arguments sake that he is also a co-owner of the acquired property, still he is not entitled to any

S. RAJESWARAN

ARUL

enhancement of the compensation amount as the reference application filed by the Revision Petitioner is on behalf of him only and not on behalf of other Co- owners.

19. Hence, I have no hesitation in setting aside the order in I.A.No.403 of 2005 by allowing the Civil Revision Petition. No Costs. Consequently, connected C.M.P.is also closed.

To

1. The III Additional Sub Judge,

Madurai.




Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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