Elavarasan Vs. Neyveli Lignite Corporation - Court Judgment

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :

29. 10-2013 CORAM: THE HONOURABLE MR.JUSTICE B. RAJENDRAN C.R.P. (NPD) Nos. 3711, 3712, 3713, 3714, 3798, 3799, 3800, 3801, 3802, 3803, 3804, 3805 and 3806 of 2011 and M.P. No.1, 1, 1, 1, 1, 1, 1, 1 and 1 of 2012 Elavarasan @ Sivagnanaprakasam .. Petitioner in CRP No.3711 Versus The Secretary Neyveli Lignite Corporation Neyveli Cuddalore District .. Respondent in CRP No.3711 CRP (NPD) No.3711 of 2011:- Civil Revision Petition filed under Article 227 of The Constitution of India praying to set aside the order dated 21.06.2011 passed in I.A. No.221 of 2010 in LAOP No.1656 of 2008 on the file of the Sub Court, Neyveli. For Petitioner : Mr. R. Margabandhu in all the Revision Petitions For Respondent : Mr. N.A.K. Sharma in all the Revision Petitions COMMON ORDER

All these Civil Revision Petitions have been filed questioning the correctness of the order dated 21.06.2011 passed by the learned Subordinate Judge, Neyveli, whereby the applications filed by the Neyveli Lignite Corporation, hereinafter referred to as 'Corporation' under Order VII Rule 11 read with Section 151 of CPC were allowed rejecting the Land Acquisition Original Petitions filed by the revision petitioners herein. As against the same, the present Civil Revision Petitions have been filed.

2. The revision petitioners have filed applications seeking reference to the competent Sub Court for enhancement of compensation awarded in their favour. On the basis of such applications, the District Collector referred the applications for enhancement of the compensation amount and the same were taken on file as Land Acquisition Original Petition Nos. 1654, 1656, 1653, 1734, 1655, 1657, 1733, 1736 of 2008 and 113, 114, 166 and 118 of 2009 respectively before the Sub Court, Neyveli. According to the revision petitioners, their lands have been acquired for establishment and development of Neyveli Lignite Corporation. The Land Acquisition Officer, after complying with the formalities passed an award in respect of the lands acquired from the revision petitioners and they have received the compensation amount with protest whereby they have reserved their right to seek for reference of the case for determination of enhanced compensation. Accordingly, the revision petitioners have filed applications under Section 18 (2) of the Land Acquisition Act and based on their applications, the District Collector made a reference and it was taken on file as Land Acquisition Original Petitions mentioned above. During the pendency of the Original Petitions, the corporation filed I.A. Nos. 221, 219, 224, 223, 220, 232, 217, 222, 225 227, 228, 229 and 230 of 2010 under Order VII Rule 11 read with Section 151 of CPC to reject the Land Acquisition Original Petitions filed by the revision petitioners on the ground that the Original Petitions were filed beyond the time stipulated under Section 18 (2) of the Land Acquisition Act and that the District Collector ought not to have made the reference to the Sub Court on the basis of the applications submitted by the revision petitioners. The court below held that the revision petitioners have filed their applications seeking reference belatedly and therefore allowed the I.A. Nos. 221 of 2010 etc., filed by the corporation on 21.06.2011.

3. The learned counsel appearing for the petitioners would contend that even though the compensation amount was paid to the revision petitioners for having acquired their land, the amount paid was meager and therefore, the revision petitioners have filed the applications before the District Collector seeking reference and based on a reference made, the Land Acquisition Original Petitions have been taken on file. As far as the award is concerned, the revision petitioners were not served with a copy of the award along with the notice served under Section 12 (2) of the Land Acquisition Act. Thereafter, the revision petitioners have received the award only in the year 2007 and in some cases the award was served on them during 2002. Thereafter only, the revision petitioners have filed the application to the District Collector seeking reference for enhancement of the compensation amount and on the basis of such applications made by the revision petitioners, the reference was made. Therefore, according to the counsel for the revision petitioners, the applications seeking reference were made by the revision petitioners immediately after the award was served on them and therefore, the period prescribed under Section 18 (2) of the Land Acquisition Act was duly complied with by the revision petitioners.

4. Per contra, the learned standing counsel for the corporation raised a preliminary objection as to the maintainability of these Civil Revision Petitions by contending that the orders, which are impugned in these civil revision petitions, are appellable orders and therefore only an appeal is maintainable and the Civil Revision Petitions filed under Article 227 of The Constitution of India are not maintainable. The learned counsel for the revision petitioners would further contend that the order passed in the application filed by the Corporation under Order VII Rule 11 of CPC is a decree and as against such decree, only an appeal is maintainable. It is also contended that the reference made before the Court below is belated especially when some of the claimants have participated in the enquiry and they are fully aware of the award passed by the Land Acquisition Officer. Therefore, the revision petitioners ought to have sought for reference within a period of six weeks or 12 weeks as the case may be as contemplated under Section 18 (2) of the Land Acquisition Act and such period expired long back. The revision petitioners sought for reference only during the year 2007 on the ground that the copy of the award was communicated to them only during the year 2007. In any event, the court below has considered the entire evidence made available by both sides and rightly allowed the petitions filed by the corporation under Order VII Rule 11 of CPC and it needs no interference by this Court.

5. I heard the counsel for both sides. All these Civil Revision Petitions have been filed challenging the order passed by the learned subordinate Judge, Neyveli allowing the applications filed by the Corporation under Order VII Rule 11 of CPC on 21.06.2011. It is seen from the records that the Land Acquisition Officer has passed the awards during the year 1992 and 1993, in some cases the award was passed in the year 1997. Some of the revision petitioners sought for reference during 2002 and others sought for such reference during 2007. However, without going into the merits of the case or whether the reference made by the District Collector was belated, this Court is inclined to examine whether the Civil Revision Petitions are maintainable as against the orders passed by the Court below on 21.06.2011 allowing the applications filed by the Corporation under Order VII Rule 11 read with Section 151 of CPC.

6. A perusal of the orders, which are impugned in these Civil Revision Petitions, it could be seen that the orders passed on 21.06.2011 allowing the applications filed by the Corporation under Order VII Rule 11 read with section 151 of CPC. The learned Subordinate Judge considered in details the application filed by the corporation and after referring to Section 18 (1) and (2) of the Land Acquisition Act, held that the revision petitioners have filed the applications seeking reference belatedly and therefore, the court below allowed the applications filed by the Corporation and did not go into the other questions relating to the merits of the case. Such an order passed under Order VII Rule 11 read with Sec. 151 of CPC is a decree and as against the decree, only a regular appeal will lie and these Civil Revision Petitions are not maintainable.

7. In this connection, it is relevant to refer to the decision of this Court reported in (K.S. Geetha vs. Stanleybuck and another) 2002 (3) CTC477 In that case, the suit was filed for specific performance and during the pendency of the suit, an application under Order VII Rule 11 of CPC was filed to reject the plaint. The said application was allowed by the court below against which the Civil Revision Petition was filed before this Court. In that case also, a plea was raised as to the non-maintainability of a Civil Revision Petition against the order allowing an application under Order VII Rule 11 of CPC wherein this Court held in para Nos. 10 and 11 as follows:- 10. The learned counsel would place strong reliance on the ruling of the Full Bench of this Court (Satyanarayanacharyulu v. Ramalingam) (FB). In that case, the petitioners filed a suit in the Subordinate Court for declaration and for other reliefs and paid a fixed Court fee of Rs.100/- under Sec.17-A of Schedule II, Court Fees Act valuing the suit for the purposes of jurisdiction at Rs.3,600/-. The question arose was whether the Court fee paid has been correct and after considering the objection the Subordinate Judge came to the conclusion that the suit has been grossly under valued and directed the petitioner/plaintiff to pay an additional Court fee of Rs.400/-. The order directing payment of additional Court fee was made on 14.3.1947 and a period ten days time was given for payment of the deficit court fee. The suit was adjourned to 24.3.1947 and by that time, as the deficit court fee was not paid as per the order dated 14.3.1947, the plaint was rejected. A revision was filed against the order dated 24.3.1947. The Full Bench approving the view taken in an earlier ruling reported in 1942 (1) MLJ569(Ratnavelu Pillai v. Varadaraja Pillai) ruled that if the order directing payment of additional Court fee was not complied with and it was followed by an order dismissing the suit, a revision would not be maintainable and the remedy is only by way of an appeal against the decree. Or in other words, the Court ruled that once a plaint is rejected, the remedy for the plaintiff is only to file an appeal and not a revision petition. A learned single Judge of this Court had occasion to consider a similar question and after considering the ruling of the Full Bench referred supra as well as other rulings viz., AIR1924Oudh 413 (Harihar Bakhsh Singh v. Jagannath Singh); AIR1956Hyderabad 133 (Radhakishen v. Wali Mohammed); and AIR1957Pepsu 14 (Badri Nath v. State of Pepsu), clearly ruled that both from the section and those decisions it is clear that only appeal will lie against rejection of plaint and it is not limited to such cases wherein the plaint was rejected for the reasons stated under Order VII, Rule 11 of Code of Civil Procedure. In a recent ruling of this Court (Nesammal and another v. Edward and another) a learned single Judge referred extensively the various rulings including AIR1976Madras 289 (R. Shanmughavelu Pillai vs. R. Karuppannan Ambalam) and concurred with it.

11. Thus, the legal position from the above rulings is that as against the order rejecting the plaint, only an appeal lies and not a revision.

8. The learned counsel appearing for the respondent/corporation relied on the decision of the Patna High Court reported in (Mt. Rani Krishna Kumar vs. The State of Bihar and others) AIR1976Patna 221. That case arose out of Land Acquisition Proceedings itself, where the Land Acquisition Original Petition was dismissed on the ground that the reference made was belated. In that decision, the learned single Judge of the Patna High Court relied on the decision of this Court reported in (K.T. Muthuveerappa Pillai vs. Revenue Divisional Officer, Melur (AIR1931Madras 26 and held that as against the order dismissing the Land Acquisition Original Petition, only an appeal would lie. In para Nos.5 and 6, it was held as follows:- ".5. As already said above, no direct authority was cited at the bar. Nonetheless, I would venture to take support for my views from a few decisions although not directly in point. Reference may be first made to a Bench decision in K.T. Muthuveerappa Pillai vs. Revenue Divisional Officer, Melur (AIR1931Madras 26 (1). This decision lays down that once a proper reference comes before the District Judge, his final order on it is an award whether he gives an additional amount or whether the requisitioning officer's award is upheld or not upheld for some reason. In that case an appeal would be competent. Shelat J, as he then was, delivering the judgment in the case of Bai Lalita vs. Shardaben (AIR1970Guj 37) had also considered somewhat similar question. According to this decision every award shall be deemed to be a decree and the statement of the grounds of every such award is a judgment within the meaning of Section 2, Clause (2) and Section 2, Clause (9) respectively, of the Code of Civil Procedure. The final decision becomes the award which shall be deemed to be a decree as contemplated in Section 2 (2) of the Civil Procedure Code. The award has thus to be on the basis of a reference made to the Court under Section 18 of the Act. The proceedings then commences in the Court and the decision given on any such reference becomes an award under Section 26 of the Act. Any party to such a decision will be bound by the same and the only remedy for the aggrieved party will be to file an appeal. Reference may also usefully be made to our own High Court's decision in Nitai Dutt vs. Secretary of State (AIR1924Patna 608). I would like to refer some facts of this case. A house in the town of Jharia was acquired by the Collector. Notices under Section 9 of the Act were ordered to be issued upon three persons, namely, Nitai Dutt and his two brothers, who were presumably members of the joint family. All the three notices were, however, accepted by Bhusan Dutt alone, who also appeared before the Collector in the proceeding under Section 11 of the Act and obtained time purporting to act on behalf of himself and his two brothers. Time was allowed, but no action was taken by any party on the adjourned dates, and the proceeding was concluded and an award was made by the Collector. Nitai Dutt alone then presented a petition claiming for a reference to the Court. When the matter came before the Court it took the view that the petition for reference of Nitai Dutt was itself not maintainable and dismissed the reference. A first appeal was taken by Nitai Dutt to this Court and it was contended on behalf of the State that the appeal as such was not maintainable. Repelling this objection it was held that the appellant's application for reference having been rejected, there was in fact an award of the court in a proceeding under the Act and that, therefore, there was an appeal permissible within the provisions of Section 54. Learned Judges held that what in fact happened was that when a reference took place, the result of dismissing the claim referred had the effect of confirming the Collector's award whether the award was varied or whether it was confirmed, in either case an appeal was permissible under Section 54 of the Act. Reference was also made to the further finding in the order "..........Reference be dismissed and the Collector's award be upheld".. In my opinion, the Patna decision is almost a complete answer to the contention raised by Mr. Thakur inasmuch as in the last paragraph of the order the learned Subordinate Judge has held ".Hence, it is ordered, that the reference is rejected. The award prepared by L.A. Department is accepted".. Having considered the matter from all possible angles, I have no hesitation in taking the view that the order in question was an award within the meaning of Section 54 of the Act and to providing the remedy to the petitioner by way of an appeal. This revision application is, therefore not maintainable.

6. Learned counsel for the petitioner lastly made a prayer that the revision application should itself be permitted to be converted in to a first appeal. I would grant this prayer and direct that this revision application may be converted in to a first appeal to proceed in accordance with law. In the circumstances, I would make no order for cost.".

9. In the light of the aforesaid decisions, the contentions urged on behalf of the respondent corporation that these revision petitions are not maintainable is well founded. Accordingly, I hold that as against the orders dated 21.06.2011 passed by the learned Subordinate Judge, Neyveli in I.A. Nos. 221, 219, 224, 223, 220, 232, 217, 222, 225 227, 228, 229 and 230 of 2010 filed by the corporation under Order VII Rule 11 read with Section 151 of CPC, these Civil Revision Petitions are not maintainable and only an appeal would lie. While so, in the interest of justice, I have no hesitation in issuing a direction for converting these Civil Revision Petitions in to that of Appeal suits. Accordingly, Office is directed to treat and convert the above Civil Revision Petitions in to that of an Appeal suit and post it for passing appropriate orders thereon. 29-10-2013 rsh Index : Yes Internet : Yes To The Subordinate Judge Sub Court, Neyveli B. RAJENDRAN, J rsh C.R.P. (NPD) Nos. 3711, 3712, 3713, 3714, 3798, 3799, 3800, 3801, 3802, 3803, 3804, 3805 and 3806 of 2011 29-10-2013