St Marys Society Cherukole v. Alphonse Alexander — 1995 DIGILAW 89 (KER)

JUDGMENT K.J. Joseph, J. 1. The petitioner is a society registered for the welfare of the traditional fishermen with a view to expand the activities of the society by establishing a cold storage and processing of fish, they required additional land, to the extent of 8.27 Ares. For that purpose, they made a request to the Government to initiate land acquisition proceedings. Pursuant to that, a notification under S.3(1) of the Act was published on 2.10.1973, followed by another notification dated 29.3.1981. After series of litigations, the fifth respondent passed an award on 5.8.1989. Since there was dispute between the parties regarding the compensation to be shared and enhancement was claimed, a reference was made under S.18 and 30 of the Act to the sixth respondent. The said reference was numbered as L.A.R. No. 275 of 1989. The sixth, respondent, by Ext. P1 judgment elated 30.3.1994, allowed enhancement of the land value at Rs. 4,7187- per Are with solatium and interest. It is the case of the petitioner that no evidence was adduced on the side of the State of Kerala and the total liability as per Ext. P1 judgment is more than Rs. 1,00,000/- which has to be borne by the petitioner, for whose benefit the acquisition was ordered. 2. According to the petitioner, the society was not aware of the reference made to the land acquisition court, trial of the case and passing of Ext. P1 judgment till a communication was received by the petitioner issued by the fifth respondent directing them to make available the enhanced compensation as per Ext. P1 judgment. The communication is dated 3.11.1994. It is revealed from the said communication that the State intends to file an appeal against the judgment and decree. It is the further case of the petitioner that they were not informed about the reference since they were not made parties in the said proceedings. According to the petitioner, they are interested in the land acquisition proceedings and in the matter of passing of the award. According to them, they are proper and necessary parties to be heard m the matter. Even though the petitioner is entitled to file an appeal against Ext. P1 judgment and decree and got itself impleaded when the appeal is pending, adequate reliefs may not be available to them in the absence of evidence against the enhancement of compensation. According to them, they are proper and necessary parties to be heard m the matter. Even though the petitioner is entitled to file an appeal against Ext. P1 judgment and decree and got itself impleaded when the appeal is pending, adequate reliefs may not be available to them in the absence of evidence against the enhancement of compensation. Hence the petitioner challenges the validity of Ext. P1 judgment and decree before this court in this proceeding, under Art.226 of the Constitution. According to the petitioner, Ext. P1 is vitiated by error of law and hence liable to be interfered with by this court. The petitioner therefore, seeks for the issuance of a writ of certiorari or other appropriate writ quashing Ext. P1 and also for a writ of prohibition restraining respondents 1 to 4 from initiating execution proceedings for realisation of the amount due under the decree in Ext. P1. 3. I heard counsel for the petitioner as well as the Government pleader, on whom a copy of the original petition was served. 4. Counsel for the petitioner placed reliance on the decision reported in Neyvely Lignite Corporation Ltd. v. Special Tahsildar and others ( 1995 (1) SCC 221 ) to substantiate the contention that the petitioner society is interested in the proceedings and, therefore, they are entitled to be heard in the matter. According to counsel for the petitioner, Ext. P1 can he successfully challenged in this proceeding under Art.226 of the Constitution, even though they may have the right to appeal under S.54 of the Act. According to counsel, the relief by way of appeal is not effective and hence, he seeks interference with Ext. P1 in this proceeding under Art.226 of the Constitution. 5. I am afraid whether the petitioner would be justified m challenging Ext. P1 judgment and decree passed by a competent civil court in proceedings under Art.226 of the Constitution. A write of certiorari cannot be issued to a civil court. The judgment or order of a civil court cannot be interfered with or quashed under Art.226 of the Constitution. Even if the decision of the civil court is wrong, a party cannot approach the High Court on the ground that it has supervisory jurisdiction over civil courts and it has ample powers to interfere with the order of the civil court. Even if the decision of the civil court is wrong, a party cannot approach the High Court on the ground that it has supervisory jurisdiction over civil courts and it has ample powers to interfere with the order of the civil court. As the High Court cannot act as an appellate court and reappreciate the evidence or other circumstances emerging from the case, it would not be possible for this Court to affirm the findings of the civil court or disagree with it on analysis of the factual data. In the decisions reported in Nalla Koya v. Administrator ( 1968 KLT 60 ), Kathir Pareed v. Special Deputy Collector and other (1973) KLT 996), Union of India v. Vijaya Mohini Mills ( 1992 (1) KLT 404 DE) and Mathew v. Kuruvilla (1992 (2) KLT SN 34-case No. 48), this Court categorically held that a writ of certiorari cannot be issued to a civil court. This Court also placed reliance on the decision of the Constitution Bench of the Supreme Court reported in Naresh Shridhar Mirajkar and others v. State of Maharashtra and another ( AIR 1967 SC 1 ), wherein it was held by majority that a writ of certiorari would not lie against a competent civil court. The Supreme Court also considered the scope of interference with the judgment and decree of a civil court under Art.227 of the Constitution, in the decision reported in Mohd, Yunus v. Mohd, Mustaquim and others ( AIR 1984 SC 38 ) and found that such interference against the judgment and decree of a civil court in exercise of the supervisory jurisdiction of the High Court under Art.227 of the Constitution cannot be invoked. Admittedly, Ext. P1 was passed by the Subordinate Judge, Mavelikkara on a reference made to that court under S.18 of the Act. A reference under S.18 of the Act to a civil court would clothe the civil court to pass a judgment and decree and the said judgment and decree will be binding on the parties. Such judgment and decree cannot be interfered with by this Court in exercise of the extraordinary jurisdiction of this Court under Art.226 of the Constitution of India, especially when effective alternate remedy by way of appeal is available to the parties to the said judgment and decree. 6. Such judgment and decree cannot be interfered with by this Court in exercise of the extraordinary jurisdiction of this Court under Art.226 of the Constitution of India, especially when effective alternate remedy by way of appeal is available to the parties to the said judgment and decree. 6. The legality, correctness and propriety of the judgment and decree passed by the civil court can be successfully questioned by an aggrieved party in appeal provided under S.54 of the Act. The petitioner has not stated any sustainable legal ground for not resorting to that remedy available under S.54 of the Act. On the contrary, what the petitioner has stated in Para.5 of the original petition is that even though the petitioner society is entitled to file an appeal against Ext. P1 judgment and decree or to get itself impleaded when the appeal is pending, adequate relief may not be available in the absence of evidence against the enhancement of compensation. In this proceeding under Art.226 of the constitution, no evidence could be adduced and what the petitioner is entitled to get is leave to adduce fresh evidence before the competent civil court. Such a request can be effectively made by the petitioner if an appeal is filed against the judgment and decree passed by the civil court, under S.54 of the Act before a competent civil court. Therefore, the reason stated by the petitioner for not preferring the appeal is unsustainable. 7. Even in this proceeding, the petitioner has hot produced or sought permission to adduce fresh evidence. The petitioner can successfully challenge the validity of Ext. P1 judgment and decree before this Court; by way of filing an appeal under S.54 of the Act if they have not been made parties before the land acquisition court. Admittedly the petitioner is aggrieved by Ext. P1 judgment and decree. Therefore, it can file an appeal before this Court under S.54 of the Act. in the said appeal, it will be perfectly open for the petitioner to adduce evidence and produce documents to disprove the claim made by the claimants in the reference application. As stated, the petitioner cannot adduce evidence before this Court in this proceeding under Art.226 of the Constitution, to disprove the claim made by the application to interfere with Ext. in the said appeal, it will be perfectly open for the petitioner to adduce evidence and produce documents to disprove the claim made by the claimants in the reference application. As stated, the petitioner cannot adduce evidence before this Court in this proceeding under Art.226 of the Constitution, to disprove the claim made by the application to interfere with Ext. P1 judgment and decree passed by the civil court in this proceeding under Art.226 of the constitution at the instance of the petitioner, who has an effective alternate remedy by way of appeal before this Court against the said judgment and decree. 8. The reasons stated by the petitioner for not preferring an appeal are unconvincing and, therefore, I see no justification to interfere with Ext. P1 judgment and decree in this proceeding under Art.226 of the Constitution. Ext. P1 is dated 30.3.1994 and the petitioner has sufficient time to file an appeal before this court with leave of this Court. 9. Based on the observations made by the Supreme Court in the decision reported in 1995 (1) SCC 221 , counsel for the petitioner justifies the action of the petitioner in moving this court under Art.226 of the Constitution. In the above decision, the Supreme Court had stated that when the award made under S.11 of the Collector is vitiated by fraud, collusion or corruption, the beneficiary is entitled to challenge it in writ petition apart from the settled law that the conduct of the Collector or Civil Judge is amenable to disciplinary enquiry and appropriate action. Therefore, according to counsel for the petitioner, the original petition is maintainable. 10. Even going by the observation of the Supreme Court, the petitioner has no case in this petition that the award passed by the Collector is vitiated by fraud, collusion or corruption. On the other hand, the grievance voiced in this petition is that being an aggrieved party, the petitioner society was not made a party by the Collector and thereafter before the reference court. In that case, the application filed by the person for whose behalf the land were acquired, for impleadment was dismissed on the ground that he was not an interested person. The said finding of the civil court was upheld by the High Court. In that case, the application filed by the person for whose behalf the land were acquired, for impleadment was dismissed on the ground that he was not an interested person. The said finding of the civil court was upheld by the High Court. The prayer of the beneficiary to get itself impleaded in the appeal filed by the state under S.54 was also rejected by the High Court stating that they are not - persons interested. Thereafter, the person interested had filed writ petition before the High Court challenging the validity of the judgment and decree and the High Court dismissed the said write petition holding that the writ petitioner was not a person interested in the matter of acquisition. It was in that context, the Supreme Court had hold that the interested person can take up the matter in appeal before competent civil court and also before the High Court in writ proceedings in case the High Court found that they were not interested in the subject matter of acquisition. Even in the case relied on by counsel for the petitioner, the Supreme Court had set aside the Order passed by the High Court under Art.226 of the Constitution and directed to treat them as appeals properly filed under S.54 of the Act and deal along with the appeal filed by the State before the High Court. In the said decision, the Supreme Court had no occasion to consider the question whether a writ of certiorari would lie against the judgment and decree passed by a civil court in proceedings under. Art.226 of the Constitution. But, in the light of the various decisions of the Supreme Court and the Division bench of this Court referred to earlier, it has to be held that the petitioner is not entitled to invoke thy extra ordinary jurisdiction of this Court under Art.226 of the Constitution questioning the validity of the judgment and decree passed by the Subordinate Judge evidenced by Ext. P1. There is no merit in the original petition and hence, the same is dismissed. But I make it clear that the dismissal of this original petition shall not stand in the way of the petitioner, if so advised, in filing a proper appeal against Ext. P1 Judgment and decree before this Court with leave, under S.54 of the Act.