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2015 DIGILAW 766 (ALL)

GURUDWARA COMMITTEE CHAKERI AERODRUM v. UNION OF INDIA

2015-04-10

D.Y.CHANDRACHUD, MANOJ KUMAR GUPTA

body2015
JUDGMENT By the Court.—The special appeal has arisen from a judgment and order of the learned Single Judge dated 26 February 2015, holding that a writ petition filed by the appellant is not maintainable; the view of the learned Single Judge being that a revision under Section 115 of the Code of Civil Procedure, 1908 (Code) would be maintainable. 2. The case of the appellant is that it is the owner of land bearing plot No. 48, ad-measuring 53.55 sq. meters and plot No. 49, ad-measuring 136.50 sq. meters situated at Village Safipur, District Kanpur Nagar. The appellant claims to have purchased the land under a registered sale-deed dated 6 November 1952. The land was acquired for the purpose of widening National Highway No. 25 under the provisions of the National Highways Act, 1956 (Act). The competent authority determined the compensation payable in respect of the land at Rs. 42,89,237/-. On 21 September 2012, the competent authority made a reference under the provisions of Section 3-H (4) of the Act to the Civil Court for the adjudication of a dispute in regard to the apportionment of compensation between two claimants, namely (i) Tarsem Singh, Sachiv, Gurudwara Shree Guru Singh Sabha Harjender Nagar, Kanpur and (ii) Prabandhak, Harjender Nagar Inter College, Kanpur. The competent authority recorded that it had addressed notices to the above two sets of claimants who had been heard. For convenience of reference, we are extracting the relevant part of the order of the competent authority herein below: “izdj.k ls lacaf/kr vfHkfu.kZ;jkf'k dks izkIr djus gsrq fgrc) Hkw&Lokeh Jh rjlse flag] lfpo] xq:}kjk Jh xq: flag lHkk gjtsUnj uxj] dkuiqj o izca/kd gjtsUnj uxj b.Vj dkyst] dkuiqj dks uksfVl Hkstdj viuk viuk nkok LoRo fu/kkZj.k gsrq lquk x;k] ftlds fuLrkj.k gsrq Hkkjrh; jk"Vz~h; jktekxZ vf/kfu;e 1956 dh /kkjk 3 ,p dh mi /kkjk (4) ds vèkhu izdj.k dks ekuuh; ftyk tt] dkuiqj uxj dks lUnfHkZr djus dk vkSfpR; fl) gksrk gSA” 3. The appellant filed an application before the District Judge on 18 January 2013 stating that the two claimants whose claims have been referred to the competent authority had falsely represented themselves to be the owners of the agricultural land. The appellant set up his case on the basis of registered sale-deeds dated 6 November 1952 and 25 September 2006. The appellant filed an application before the District Judge on 18 January 2013 stating that the two claimants whose claims have been referred to the competent authority had falsely represented themselves to be the owners of the agricultural land. The appellant set up his case on the basis of registered sale-deeds dated 6 November 1952 and 25 September 2006. The case of the appellant was that it had not received any notice from the competent authority before or after the declaration of the award on 7 October 2009. The Additional District Judge, Kanpur Nagar, by an order dated 5 December 2014, recorded that an agreement had been arrived at between the two claimants in respect of whom the competent authority had made a reference under Section 3-H (4) of the Act. Accordingly, an order was passed directing the payment of compensation to the Gurudwara Shri Gurusingh Sabha Harjender Nagar, Kanpur Nagar. 4. The appellant filed writ proceedings before the learned Single Judge challenging two orders; (i) the order dated 21 September 2012 of the competent authority (Annexure 2) and; (ii) the order of the Additional District Judge, Kanpur Nagar dated 5 December 2014 (Annexure 6). The learned Single Judge directed that the writ petition be converted into a civil revision petition under Section 115 of the Code on the ground that a writ petition would not be maintainable. 5. The submission which has been urged on behalf of the appellant is that while a revision would lie against the order of the Additional District Judge dated 5 December 2014, the validity of the order of reference dated 21 September 2012 can only be questioned in a writ petition under Article 226 of the Constitution. The learned counsel submitted that, if the appellant succeeds in establishing before the writ Court that the competent authority had acted without jurisdiction in making a reference on 21 September 2012 in respect of the two claimants in question, the order of 5 December 2014 would follow the declaration of invalidity. The appellant is seriously aggrieved on the ground that its claim on the basis of a registered sale-deed has been ignored and that, as a result of the collusive order stated to have been obtained by the two claimants before the Additional District Judge, the entire compensation has been directed to be paid over to one of them. 6. The appellant is seriously aggrieved on the ground that its claim on the basis of a registered sale-deed has been ignored and that, as a result of the collusive order stated to have been obtained by the two claimants before the Additional District Judge, the entire compensation has been directed to be paid over to one of them. 6. On the other hand, learned counsel appearing on behalf of the second and third respondents submitted that in view of the judgment of the Supreme Court in Radhey Shyam v. Chhabi Nath, 2015(3) SCALE 88, a writ petition was not maintainable to challenge the final order of the Additional District Judge dated 5 December 2014. The submission is that the appellant cannot be allowed to challenge the order dated 21 September 2012, making a reference under Section 3-H (4) of the Act, under Article 226 of the Constitution, while pursuing the remedy of revision under Section 115 of the Code against the final order passed by the Additional District Judge on 5 December 2014. Learned counsel also submitted that, on merits, the order of the Additional District Judge would indicate that notices had been despatched to the appellant by the competent authority and the organization was heard before the order was passed. 7. Now, at the outset and in order to bring clarity before the Court, it would be necessary to state that as a principle of law, as held in a recent decision in Radhey Shyam v. Chhabi Nath (supra) of the Supreme Court, judicial orders of a Civil Court are not amenable to the writ jurisdiction under Article 226 of the Constitution. The Supreme Court has held that orders of Civil Courts stand on different footing from orders of authorities or Tribunals or Courts other than judicial/Civil Courts. While appellate or revisional jurisdiction is regulated by statutes, power of superintendence under Article 227 is constitutional. 8. The issue before the Court is whether the appellant would have a remedy of revision under Section 115 of the Code to challenge the order of the competent authority making a reference under Section 3-H (4) of the Act. In a revision under Section 115 of the Code against the order of the Additional District Judge dated 5 December 2014, the appellant cannot question the legality of the order of reference dated 21 September 2012. In a revision under Section 115 of the Code against the order of the Additional District Judge dated 5 December 2014, the appellant cannot question the legality of the order of reference dated 21 September 2012. The order of the Additional District Judge has resolved the dispute in regard to the apportionment of compensation between two claimants in terms of a compromise which was arrived at between them. The order of the competent authority making a reference dated 21 September 2012 ex facie indicates that the competent authority had issued notices to two claimants, whose claims were referred to adjudication by the principal Civil Court of original jurisdiction under Section 3-H (4) of the Act. Before the Additional District Judge, the claim of the appellant was not referred by the competent authority. Whether or not the competent authority has acted without jurisdiction or contrary to law in not referring the claim of the appellant is a matter which can only be tested in the exercise of the writ jurisdiction under Article 226 of the Constitution. The order of reference lies at a foundation of the ultimate order of the principal Civil Court under Section 3-H (4) of the Act. If the order of reference itself is not valid, necessary consequences would have to follow in accordance with law. 9. In our view, the learned Single Judge, while directing that the proceedings be converted into a revision petition under Section 115 of the Code, over looked the basic position in law that in a revision under Section 115 against the order of the Additional District Judge dated 5 December 2014, the validity of the order of reference dated 21 September 2012 cannot be questioned. The order of the competent authority under Section 3-H (4) making a reference to the Additional District Judge cannot be questioned in a revision under Section 115 of the Code. For these reasons, we hold that the impugned judgment and order of the learned Single Judge would have to be set aside in part. The writ petition filed by the appellant to challenge the order of reference dated 21 September 2012 is maintainable. The proceedings may be now listed before the appropriate Bench according to roster, upon receipt of a certified copy of this order, as a fresh case on 11 May 2015. The special appeal is, accordingly, disposed of. The writ petition filed by the appellant to challenge the order of reference dated 21 September 2012 is maintainable. The proceedings may be now listed before the appropriate Bench according to roster, upon receipt of a certified copy of this order, as a fresh case on 11 May 2015. The special appeal is, accordingly, disposed of. There shall be no order as to costs. ——————