Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1119 OF 2009
(Arising out of SLP (C) No. 10647 of 2007)
Muthavalli of Sha Madhari Diwan Wakf
S.J. Syed Zakrudeen and Anr. … Appellants
Versus
Syed Zindasha and Ors. … Respondents
J U D G M E N T
S.B. SINHA, J.
1. Leave granted.
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2. Applicability of the provisions of Order I Rule 10 of the Code of
Civil Procedure (the Code) in a proceeding under Section 18 of the Land
Acquisition Act, 1898 (the ‘Act’) is in question in this appeal which arises
out of a Judgment and Order dated 8-11-2006 passed by a learned Single
Judge of the Madras High Court, Madurai Bench, Madurai in Civil Revision
Petition (P.D.) (M.D.) No. 743 of 2006.
3. Appellant claims himself to be a Muthavalli of Sha Madhari Diwan
Wakf. The said properties were acquired by the State of Tamil Nadu in
terms of the provisions of ‘the Act’. Appellant as a ‘person interested’ took
part in the proceedings for making an award. Being dissatisfied with the
quantum of compensation awarded by the Land Acquisition Collector, he
sought for a reference for enhancement thereof pursuant whereto and in
furtherance whereof the Collector of the District made a reference to the
Civil Court. The said reference was transferred to the Court of Second
Additional Subordinate Judge, Tiruchirappalli by the learned District Judge.
Prior thereto, a suit for recovery of possession of certain properties and
damages was instituted by the father of the appellant No.2 herein against
Haji Syed Zehrudin @ Jana Basha Alisha Sadguru in the court of the
Munsif, Tiruchirappalli which was marked as O.S. No.649 of 1986.
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4. The said suit was decreed holding that the properties in question were
Wakf properties and the plaintiff therein was the Muthavalli thereof. Haji
Syed Zehrudin preferred an appeal thereagainst. The said appeal was
dismissed. A second appeal preferred thereagainst marked as S.A. No.488
of 2000 was also dismissed holding that once the property had been
dedicated to Wakf, no question of joint ownership of the properties by the
individuals in respect thereof would arise.
5. Appellant No. 2 is said to have been appointed as a temporary
Muthavalli of the Wakf. By an order dated 9-04-2002, the matter relating to
appointment of a permanent Muthavalli was said to have been kept in
abeyance.
6. In the reference proceedings, marked as L.A.O.P. No.18 of 2005, the
first respondent filed an application for getting himself impleaded as a party
therein contending that he was interested in the subject matter of a part of
the property acquired, being the property described in Schedule ‘B’ in O.S.
No. 305 of 1951 as in the judgment rendered therein it was allegedly held
that the same should be treated as common properties and that certain
religious obligations were to be performed from its income and the balance
to be divided amongst the co-sharers.
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It was furthermore alleged that the second appellant who was in-
charge of the management of the said property had not discharged the duties
cast upon him. Several other contentions with which we are not concerned
herein were also raised.
7. A copy of the said application was served upon the counsel for the
parties. It is interesting to note that whereas the learned counsel appearing
for the appellant therein made an endorsement, ‘Taken Notice. Prays for
time for filing counter’ , the learned Government pleader, while taking
notice is said not to have received ‘no objection’ pursuant whereto and in
furtherance whereof alone, the learned Second Additional Subordinate
Judge by an order dated 21-10-2005 directed :
“Petition filed by the Petitioner under Order 1
Rule 10 (2) and Section 151 CPC prays to
impleading the person namely S.J. Syed
Zindasha, S/o. Syed Jaffar Hussain, 32, Heber
th
Road, Palakkarai, Tiruchy 1 as 5 Respondent
in the above petition.
2) Notice to Respondent counsel and reports no
objection and hence the petition is allowed
without costs.”
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8. A revision application was filed thereagainst which has been
dismissed by reason of the impugned Judgment.
It is now not in dispute that a review application was also filed which
was dismissed by the Learned Additional Subordinate Judge by an order
dated 31-01-2006. We may also notice that in his order the learned Judge
opined as under:
“The main contention of the Petitioner is that the
formal party is an unnecessary party he cannot be
impleaded in I.A. No. 328 of 2005 even though the
Petitioner prayed time for counter to the shock and
surprise implead petition was allowed. Therefore
he filed this petition to review the order passed in
I.A. No. 328 of 2005. In this case the main
contention of the newly impleaded party is that he
is also one of the sharers in the acquisition land.
On this aspect there is no clear-cut findings this
court at this stage whether the impleaded parties
are entitled any share. It can be decided only after
let in evidence by the both parties, without
impleading the newly added parties, therein cannot
be a proper and binding adjudication in this case.
Therefore there is no question for reviewing the
order passed in I.A. No. 328 of 2005 whether the
third party newly added party or unnecessary party
it can be decided at the time of enquiry. Hence
there is no question of review the order passed in
I.A. No. 328 of 2005 arise at this stage. Hence
this petition is dismissed without costs.”
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9. Mr. V. Prabhakar, learned counsel appearing on behalf of the
appellants would contend :
(1) Having regard to the fact that the civil court had held the property to
be a Wakf property and the first appellant to be Muthavalli thereof,
Respondent No. 1 could not have been directed to be impleaded as a
party in the reference proceeding.
(2) A reference by the Collector to the Civil Court having been made in
terms of Section 18 of the Act and not in terms of Section 30 thereof,
the application for impleadment was not maintainable.
(3) The provisions of Order I, Rule 10 of the Code, keeping in view the
nature of the proceeding, have no application in a reference made in
terms of Section 18 of the Act.
(4) The learned Reference Judge and consequentially the High Court
committed a serious illegality in passing the impugned order as the
dispute raised by the respondent in his application is beyond the
scope of the reference.
10. Mr. K.K. Mani, learned counsel appearing on behalf of the
respondents, on the other hand, would contend :
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(1) The order for impleadment of the first respondent having been passed
on consent, this court should not exercise its discretionary jurisdiction
under Article 136 of the Constitution of India.
(2) Appellants, having filed a revision application only against the main
order and not against the order of the review, this special leave
petition is barred under the principle of res-judicata .
(3) There exists a distinction between a proper party and a necessary
party. Although in the proceeding under Section 18 of the Act,
apportionment of the amount of compensation is not in question, it is
necessary that the reference be determined in the presence of the
appellant and, thus, the respondent is a proper party to the reference
proceedings.
11. ‘The Act’ is a self-contained code. It not only provides for the mode
and manner in which the acquisition proceedings are initiated but also the
mode and manner in which the proceedings for making an award as also the
mode and manner in which an application for reference by a person
dissatisfied therewith is to be made.
12. A reference may be prayed for by a person interested in the
proceeding. Ordinarily, he should be a party to the proceedings for making
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an award. He has to file an application for making a reference before the
Collector of the District within the time specified thereunder. Such an
application must be in writing and the reference to the civil court which may
be prayed for before the Collector would be in regard to his objection as
regards measurement of land, the amount of compensation, the person to
whom it is payable or the apportionment of the compensation amongst the
persons interested.
The Reference was made only in respect of the amount of
compensation. No reference has been made in regard to the right of persons
to whom it was payable or apportionment of compensation amongst the
persons interested. The claim of the first respondent has been noticed by us.
He has laid his claim on the title of the property. He has prayed for proper
and effective implementation of the decree passed by a civil court. He
alleged mismanagement of the Wakf property by the first appellant.
13. A reference court is not a court of original jurisdiction. It derives
jurisdiction only in terms of the order of reference. The Act being a self-
contained code, the manner in which the reference is to be made and the
statement required to be made by the Collector has been specified in
Section 19 of the Act. The lis between the parties to the reference meaning
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thereby a person interested and the State is with regard to the quantum of
compensation. No other question can be raised therein. The reference court
exercises a limited jurisdiction. It derives its jurisdiction from the terms of
reference.
Even otherwise a civil court can direct impleadment of a third party in
a suit only in a case where he is a proper or necessary party and otherwise
have an interest in the subject matter of the suit. Even civil court ordinarily
would not entertain a petition for impleadment of a third party in a lis
pending before it which would enlarge the scope and ambit of the dispute
between the parties. A Civil Court would also not ordinarily implead a third
party as a result whereof fresh dispute(s) either amongst the plaintiffs
inter se claiming under the same title or the inter se between the defendants
would be required to be determined.
14. In the event there is a dispute with regard to the title or apportionment
of the amount of compensation, a proper reference has to be made. Only
when such a reference is made, the dispute between the claimant can be
gone into and not in a reference proceeding of the nature referred to by the
collector in the instant case.
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15. In Kothamasu Kanakarathamma and others v. State of Andhra
Pradesh and Ors. [AIR 1965 SC 304], this court held :
“The only manner in which the finality of the
award can be called into question is by resort to
the provisions of Section 18 of the Land
Acquisition Act, sub-section (1) of which reads
thus:
“Any person interested who has not
accepted the award may, by written
application to the Collector, require that the
matter be referred by the Collector for the
determination of the Court, whether his
objection be to the measurement of the land,
the amount of the compensation, the persons
to whom it is payable, or the apportionment
of the compensation among the persons
interested.”
The proviso to sub-section (2) prescribes the time
within which an application under sub-section (1)
is to be made. Section 19 provides for the making
of a reference by the Collector and specifies the
matters which are to be comprised in that
reference. Thus the matter goes to the court only
upon a reference made by the Collector. It is only
after such a reference is made that the court is
empowered to determine the objections made by a
claimant to the award. Section 21 restricts the
scope of the proceedings before the court to
consideration of the contention of the persons
affected by the objection. These provisions thus
leave no doubt that the jurisdiction of the court
arises solely on the basis of a reference made to it.
No doubt, the Land Acquisition Officer has made
a reference under Section 30 of the Land
Acquisition Act but that reference was only in
regard to the apportionment of the compensation
amongst the various claimants. Such a reference
would certainly not invest the court with the
jurisdiction to consider a matter not directly
connected with it. This is really not a mere
technicality for as pointed out by the Privy
Council in Nusserwanjee Pestonjee v. Meer
Mynoodeen Khan wullud Meer Sudroodeen Khan
Bahadoo, 6 Moo Ind App 134 at p. 155 (PC)
wherever jurisdiction is given by a statute and a
such jurisdiction is only given upon certain
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specified terms contained therein it is a universal
principle that those terms should be complied
with, in order to create and raise the jurisdiction,
and if they are not complied with the jurisdiction
does not arise. This was, therefore, a case of lack
of inherent jurisdiction and the failure of the State
to object to the proceedings before the court on the
ground of an absence of reference insofar as the
determination of compensation was concerned
cannot amount to waiver or acquiescence. Indeed,
when there is an absence of inherent jurisdiction,
the defect cannot be waived nor can be cured by
acquiescence.”
16. This court furthermore in Ambey Devi v. State of Bihar and Anr.
[1996 (9) SCC 84] held that the provisions of Order I Rule 10 of the Code
have no application in a land acquisition proceeding, stating:
“The procedure prescribed under Sections 18 and
30 is inconsistent with the procedure prescribed
under Order 1 Rule 10, CPC. Order 1 Rule 10,
CPC 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 the civil court gets
jurisdiction to issue notice and thereafter to
conduct enquiry.”
In this view of the matter, the impugned judgment suffers from
several legal infirmities.
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17. The learned Additional Subordinate Judge furthermore committed a
serious error in allowing the application for impleadment filed by the first
respondent on the premise that the appellant had no objection thereto.
Endorsement of no objection was made by the counsel for the State.
Evidently, the State was not interested in a dispute by and between the
appellant and the first respondent. Appellant’s counsel while taking notice
of the application categorically stated that a counter affidavit is required to
be filed. Thus an endorsement of ‘no objection’ made by or on behalf of the
counsel for the state could not have been put in use against the appellant by
the learned judge.
18. In any view of the matter, it is well settled that no amount of consent
can confer jurisdiction on a court when it has none. If the court had no
jurisdiction, any order passed by it is a nullity. When the court lacks
inherent jurisdiction, the procedural provision of estoppel, waiver or res-
judicata shall also not apply. {[[See Chief Justice of Andhra Pradesh & Ors.
v. L.V.A. Dikshitulu & Ors. [AIR 1979 SC 193 at 198] and Chandrabhai K.
Bhoir and Ors. v. Krishna Arjun Bhoir and Ors . [2008 (15) SCALE 94]}.
19. In view of our findings aforementioned, we are of the opinion that the
principles of res-judicata in a situation of this nature will also have no
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application. In any event, it is not a case where two suits were filed and the
appellants had preferred appeal/revision against one of them and failed to
question the other order. Appellants herein had even filed a review
application prior to filing of the revision application. An application to
review lies on a limited ground. The main order being subject matter of
challenge and the same having been affirmed, the special leave petition
thereagainst is maintainable.
20. The contention of Mr. Mani that the first respondent is otherwise a
proper party if not a necessary party for the reasons stated hereinbefore has
also no force.
21. The impugned order, therefore, is set aside. The appeal is allowed
with no order as to costs.
…………………….J.
[S.B. SINHA]
…………………..…J.
[V.S. SIRPURKAR]
New Delhi;
February 19, 2009