Das Vs. Illa Chowdhry & Ors  Insc 735 (1 November 2006)
Sinha & Markandey Katju
out of S.L.P. (Civil) No.18012 of 2006 @ CC No. 3531 of 2006] S.B. SINHA, J :
appeal is directed against a judgment and order dated 30th September, 2005 passed by a learned Single Judge of
Calcutta High Court in C.O. No. 347 of 2005 whereby and whereunder the revision
application filed by Respondent No. 1 herein from a judgment and order dated 26th August, 2005 was allowed.
and Respondent No. 3 claimed themselves to be the heirs and legal
representatives of Rani Rashmoni. The appellant states that after demise of Rani
Rashmoni, the entire estate comprising Touzi No. 145 devolved upon Raja Amrita Nath
Das. Upon his demise, the property devolved upon his four sons whereafter a
partition took place amongst his legal heirs.
of Tauzi No. 145 was admittedly acquired in the year 1993 for construction of
housing estate by the West Bengal Housing Board. Name of Respondent No. 1
herein admittedly appeared in the record of rights. She was given notice of
acquisition. Possession of the land was taken from the respondent on
16.07.1997. An award was made by the Land Acquisition Collector on 26.11.1998.
Dissatisfied with the said award passed by the Collector, the respondent made a
request to the Collector to make a reference in terms of Section 18 of the Land
Acquisition Act, 1894 (for short "the Act"); pursuant whereto or in
furtherance whereof a reference was made on 18.02.1999. Some other references
were also made at the instance of Respondent No. 1 which were registered as
L.A. Case Nos. 3 to 35, 38 and 39 of 2001.
about 15.09.2000, the appellant filed a purported public interest litigation
before the High Court of Calcutta which was marked as writ petition No. 14842
of 2000 challenging the acquisition of land and change in the names of the
owners thereof in the record of rights. By an order dated 15.09.2000, the said
writ petition was dismissed as withdrawn.
appellant filed a suit bearing suit No. 57 of 2001 claiming title over the said
property on 7.09.2001 in the Court of 9th Civil Judge, Sr.
inter alia for passing a decree for mandatory injunction restraining the
defendants therein from taking any money from the Land Acquisition Collector
and for declaration that the appellant was the rightful owner of the properties
described in the Schedule appended thereto and also for a decree for recovery
of possession. The said suit is still pending.
an award had been made, the appellant filed two applications, one under
Sections 11 and 11-A of the Act on 5.08.2004 before the Collector and another
under Sections 5 and 5-A thereof objecting to the acquisition of the land
thereby. Concededly, the said applications were not maintainable at that stage.
filed an application under Order I, Rule 10(2) of the Code of Civil Procedure
praying for her impleadment in the reference proceedings inter alia on the
premise that she had filed the aforementioned suit No. 57 of 2001. The said
application was dismissed by an order dated 22.06.2004 by the learned Land
Acquisition Judge opining that she was not a 'person interested' within the
meaning of Section 3(b) of the Act. It was held that as the jurisdiction of the
reference court arises out of the order of reference, the provisions of Order
I, Rule 10 (2) of the Code of Civil Procedure was not maintainable. The
correctness or otherwise of the said order has not been questioned and, thus,
it attained finality.
also filed a writ petition in the High Court at Calcutta which was marked as Writ Petition No. 1928 of 2000. A
learned Single Judge of the said High Court opined:
Court sitting in writ jurisdiction cannot determine the entitlement to the
compensation awarded. Therefore, if the petitioner is aggrieved, it is open to
her to apply before the collector for reference under section 30 read with
section 31 of the Land Acquisition Act if she is so advised.
30 does not postulate any time limit and as such it can be made at any point of
time if such application is made, the collector may decide the same and pass
appropriate order on the said application in accordance with law. I (sic)
necessary, by making reference under the provision of section 30 and may also
resort to section 31 if she is so advised according to his own wisdom and
discretion after having examined the dispute raised that there are prima facie
dispute existing which required to be examined. In such circumstances, the collector
is not entitled to adjudicate the dispute which is the subject matter of
adjudication by a court, it is only to say that there is no prima facie case
raising any dispute and if prima facie case exists then he has to make the
reference under section 30 read with section 31.
decision is to be taken before further disbursement is made. The collector will
also hear the other no appear (sic) respondents whom the petitioner will serve
a copy of this order along with a copy of the writ petition within a period of
one week from date, in default, this order will stand recalled." It is not
in dispute that no such application was filed by her under the said provisions.
She, thus, did not avail the opportunity to take recourse to law.
filed another application for grant of probate which was marked as OS No. 1 of
2006. An order under Order VII, Rule 11 of the Code of Civil Procedure was
passed in relation thereto by the learned Addl. District Judge at Alipore
holding it to be frivolous in nature stating:
plaintiff herself stated that the original Will is allowed in connection with
case no. 33 of 1961, District Delegate Judge, Alipore. In this connection the
Ld. Lawyer for the defendants referred a decision reported in 73 CWN 820
wherein it has been held that the Will in question and for which the present
suit filed by the defendant granting probate is forged i.e. the alleged Will
made by testator Amrita Nath on 17th April, 1921 It is very funny thing that
the plaintiff prayed for granting letter of administration of the Will estate
under the said Will in respect of the properties and securities and other
assets particularly mentioned in the schedule A, B and C in favour of the
plaintiff but nowhere in the plaint about any whispering about the Will when it
was made and also the plaintiff did not mention 'C' schedule in the plaint.
the above facts and circumstances and the evidence on record I am of opinion
that even if all averments in the plaint are accepted in toto, does not
disclose any clear right to sue and not possible to grant any relief as sought
for and I am also further observed that the suit is frivolous and not on the
facts of it can be decided by this Trial Court to avoid arduous procedure for
trial as such the present petition filed by the defendant to decide the
maintainability of the suit as a preliminary issue is justified and answered
against the plaintiff." Her application before the revenue authorities,
however, succeeded in 2005. Operation of the said order, however, was stayed by
the High Court.
on or on the basis of the said purported subsequent event, another application
was filed by the appellant herein for her impleadment in the reference
reference cases were allowed by the learned Special Land Acquisition Judge by
judgment and award dated 26th
August, 2004. An
application was filed by the appellant for setting aside the said judgment of
the Land Acquisition Judge. The said application was entertained and a
miscellaneous case was directed to be registered. By an order dated 12th September, 2005, a direction was made that payments
with regard to LA case No. 3 to 33, 38 and 39 be kept in abeyance until further
No. 1 moved an application before the learned Special Judge on 12th September,
2005 whereupon the earlier order was clarified stating that the same would not
affect the process of depositing of compensation amount in court. An
application was filed to vacate the ex- parte stay but the same was refused by
an order dated 17th
applications filed by Respondent No. 1 under Article 227 were allowed by reason
of the impugned judgment.
U. Lalit, learned senior counsel appearing on behalf of the appellant,
submitted that she should be given an opportunity to get her title in respect
of Touzi No. 145 adjudicated at some forum. Having regard to the subsequent
events, viz., correction of the revenue records in the year 2005 and keeping in
view of the fact that the aforementioned title suit No. 57 of 2001 is still
pending, the High Court, it was urged, committed a serious error in passing the
impugned judgment. It was submitted that unless some protection is afforded to
the appellant by imposing conditions in regard to the withdrawal of the amount
deposited by the Land Acquisition Collector, it would not be secured.
Kumar Ghosh, learned counsel appearing on behalf of Respondent No. 1, on the
other hand, supported the impugned judgment.
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 intersse suo or in the nature thereof.
learned Reference Judge, therefore, was entirely correct in passing its order
dated 22.6.2004. A finding of fact was arrived at therein that the appellant
was not a party interested in the proceeding within the meaning of Section 3(b)
of the Act. The said order attained finality. It could not have, thus, been
reopened. Another application for impleadment, therefore, was not maintainable.
It may be true that in the proceeding of a suit, the court can in a changed
situation entertain a second application under Order I, Rule 10(2) of the Code
of Civil Procedure. But, the learned Reference Judge having opined, while
passing its order dated 26.2.2004, that the appellant was not a person
interested, in our opinion, a second application despite the subsequent event
was not maintainable.
one thing to say that a proceeding under Sections 30 and 31 of the Act was
maintainable at the instance of the appellant. She was given an opportunity to
file the same by the Calcutta High Court in terms of its order dated
22.09.2000. She did not avail the said opportunity. Having not availed the
opportunity, in our opinion, she was not entitled to be impleaded as a party.
Court had some occasion to consider the question as to who would fall within
the ambit of the term "person inherited".
Devi v. State of Bihar and Another [(2003) 3 SCC 128], it
was opined that a State who claims ownership of the land in question was not a
party interested stating:
it was a government land there was no question of initiating the proceedings
for acquisition at all. The Government would not acquire the land, which
already vests in it. A dispute as to pre-existing right or interest of the
State Government in the property sought to be acquired is not a dispute capable
of being adjudicated upon or referred to the Civil Court for determination either under Section 18 or Section 30 of
the Act. The reference made by the Collector to the Court was wholly without
jurisdiction and the Civil
Court ought to have
refused to entertain the reference and ought to have rejected the same.
the proceedings under Section 30 of the Act beginning from the reference and
adjudicating thereon by the Civil Court suffer from lack of inherent
jurisdiction and are therefore a nullity liable to be declared so." In Prayag
Upnivesh Awas Evam Nirman Sahkari Samiti Ltd. v. Allahabad Vikas Pradhikaran
and Another [(2003) 5 SCC 561], this Court opined:
is well established that the reference court gets jurisdiction only if the
matter is referred to it under Section 18 or 30 of the Act by the Land Acquisition
Officer and that civil court has got the jurisdiction and authority only to
decide the objections referred to it. The reference court cannot widen the
scope of its jurisdiction or decide matters which are not referred to it"
We may also notice that prima facie the appellant cannot be said to have any
right title and interest in the property but we do not intend to express our
final opinion thereupon as the matter is pending consideration before the Civil
disputant is entitled to an interim order, provided he is a party thereto. If
for one reason or the other, he cannot be impleaded as a party to the
proceeding, the Court would have no jurisdiction to pass any interim order in
impleadment application was not maintainable, it was, required to be dismissed
in limine. It could not have been entertained only for pressing an interim
order. Law does not contemplate exercise of such a jurisdiction by a court of
law. Any such order passed is coram non judice.
therefore, do not find any merit in this appeal. However, before parting with
this matter, we may only observe that although contention of Mr. Ghosh is that
the civil suit was not maintainable in view of a decision of this Court in Laxmi
Chand & Ors. v. Gram Panchayat, Kararia & Ors. [JT 1995 (8) SC 195], it
is not necessary for us to express any opinion thereupon. We may furthermore
place on record that a contention has been raised by Mr. Ghosh that the suit
has been dismissed. We in this matter are not concerned with the correctness or
otherwise of the said statement.
the reasons aforementioned, the appeal is dismissed with costs. Counsel's fee
assessed at Rs. 10,000/-.