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Commr. Trichur Municipalit v. Narayanan Nair
Analytical Summary of the Opinion
Factual and Procedural Background
These petitions arise from Land Acquisition Proceedings L.A.R No. 137 of 1976, in which lands were acquired for construction of a "Bell Mouth and Shopping Centre" for the Trichur Municipality at Naduvilal Junction, Trichur. The original compensation award made in those proceedings was enhanced by the court below. The Municipality (Commissioner, Trichur Municipality) is required to pay the enhanced compensation. The State did not file any appeal.
The Commissioner (Municipality) filed appeals against the judgment and decree in L.A.R No. 137 of 1976. The appeals were presented on 16th August 1979, but applications for leave under Order 41/Section 151 CPC (i.e., leave to appeal where the appellant is not a party or has no right) were filed later (application dated 3rd October 1979). The issue for the court was whether filing the leave petitions after presentation of the appeals cured the defect in presentation of those appeals. The petitions are common and are disposed of by this single order.
Legal Issues Presented
- Whether a company or a local authority in whose favour land acquisition is made is a "person interested" within the meaning of the relevant provisions of the Land Acquisition Act (i.e., whether it has the status and attendant procedural rights of a person interested).
- Whether such a person (company or local authority in whose favour acquisition is made) has a right of appeal against the award or order of compensation, or whether it can only appeal with leave of the appellate court—and relatedly, whether leave filed after presentation of an appeal can cure a defect when no right of appeal exists.
Arguments of the Parties
Petitioner (Commissioner, Trichur Municipality)
- The Municipality sought leave to file appeals against the judgment and decree in L.A.R No. 137 of 1976.
- The appeals were originally presented on 16th August 1979; the application for leave was filed subsequently (3rd October 1979). The Municipality relied on the proposition that the defect in presentation (absence of the leave petition with the appeal) could be cured by a subsequent application for leave.
- To support the proposition that a defect might be remedied after presentation, the Municipality's counsel relied on a Division Bench decision (Thayoob Sait v. Ayyappan) holding that defective appeals should be scrutinised initially and appellants required to remedy defects, implying some flexibility in addressing defective presentation.
Contesting Respondents
- The respondents argued that the appeals were not maintainable.
- They contended that no leave could be granted because the leave petitions were not filed along with the appeals; such leave petitions cannot operate retroactively to validate appeals that were incompetent at the time of presentation.
- Implicitly, respondents relied on the contention that because the Municipality has no right of appeal under the Act, subsequent leave applications could not breathe life into otherwise non-existent appeals.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Nagpur Corporation v. Narendrakumar (AIR 1959 Bombay 297) | Under the Land Acquisition Act, 1894, a local authority or company for whose benefit an acquisition is made is not a "person interested" with full procedural rights. | The court expressed respectful agreement with the principle that such bodies have limited rights and are not to be equated with private persons interested in the land (i.e., owners/tenants). |
| Mandalay Municipal Committee v. Mauno (AIR 1929 Rangoon 115) | Persons "interested" under S.20 are owners/tenants and the like; persons interested merely because they will acquire the land later (e.g., on behalf of the state) have only limited rights to appear and adduce evidence. | The court relied on this to support the conclusion that local authorities or companies benefiting from acquisition are not "persons interested" in the full sense and have only limited rights to appear and give evidence. |
| Padmanabhaswamy Temple v. Raghavan Pillai (1960 KLT 939) | A person not on the party array but bound by the decree or prejudicially affected by it may appeal with the leave of the appellate court. | The court cited this as authority for the settled law that non-parties may appeal only with leave; it supports the proposition that leave can be granted in appropriate cases. |
| Govinda Menon v. Madhavan Nair & Others (1963 KLT 619) | Confirmed that a non-party who is bound by or aggrieved by a decree may, with leave, prefer an appeal. | The court treated this as further authority that non-parties may be granted leave to appeal, i.e., there is no absolute bar where a right of appeal is absent. |
| Sabapathy Pillai v. Special Tahsildar (1970 KLT 1015) | A non-party to an award who is bound by it or whose interests are affected may file an appeal with the leave of the appellate court. | Cited as consistent authority reinforcing the principle that leave may be granted to non-parties in appropriate circumstances. |
| Commissioner, Trichur Municipality v. Krishna Menon (1979 KLT 546) | Considered scope of Ss. 55(2) and 60 of the Kerala Land Acquisition Act; noted that where a party has no right of appeal, leave must be sought (and in that case leave had been sought). | Court relied on a passage showing that if leave is sought, it may be considered; used to illustrate that leave is the route for persons without a statutory right to appeal. |
| A.P. Agricultural University v. B. Ganamma (AIR 1974 A.P. 299) | Where a person who is not a party desires to prefer an appeal, leave is necessary; Chinnappa Reddy, J. stated that a precondition to grant of leave is that such person should have a right of appeal (though the present court respectfully disagreed with that precondition). | The court discussed and disagreed with the strict precondition that the non-party must have a right of appeal; nevertheless the decision was used to emphasize that leave is necessary and will be granted only in exceptional cases. |
| Punjabi University v. A.S. Ganesh ((1973) 3 SCC 800; AIR 1972 SC 1973) | Addressed condonation of delay where a joint appeal involved a body (University) bearing acquisition costs while the Government (which had a right of appeal) did not explain delay; Supreme Court condoned delay because of the University's involvement. | The court held that the Punjabi University decision was not directly helpful because that case involved a joint appeal where the Government (which had a right of appeal) was a co-appellant; it therefore distinguished the present situation. |
| Thayoob Sait v. Ayyappan (1963 KLT 445) | Holds that no rigid rule governs defectively filed appeals under O. XLI, R. 1; defective appeals should be scrutinised early and appellants required to remedy defects; appropriate orders depend on circumstances. | The court acknowledged this decision but distinguished it: that case concerned parties who had a right of appeal and defects/remedies related to condonation of delay or filing defects; it did not support retroactive validation of appeals by parties who have no right at all. |
Court's Reasoning and Analysis
The court proceeded in a two-step analysis corresponding to the two central questions identified.
1. Whether a company or local authority benefiting from acquisition is a "person interested"
- The court accepted that a company or local authority in whose favour land is acquired has an interest because it is ultimately liable to pay the compensation.
- However, that interest is limited by statute (the court quoted S. 55 of the Kerala Land Acquisition Act). Under S. 55(2) the local authority or company may "appear and adduce evidence for the purpose of determining the amount of compensation" but is "not ... entitled to demand a reference under S. 20." Thus the statutory rights are expressly limited.
- The court relied on earlier authorities (Nagpur Corporation and Mandalay Municipal Committee) to conclude that such bodies are not "persons interested" in the full sense (as are owners/tenants), but have only a restricted role—essentially, a procedural right to appear and give evidence on compensation.
- On that basis the court concluded that powers not enumerated in S. 55 (for example, a statutory right to appeal or to demand a reference) are not available to the company or local authority.
2. Whether such a person has a right of appeal or may appeal only with leave
- The court noted settled law that a person who is not a party to proceedings but is bound by or prejudicially affected by a decree may prefer an appeal only with the leave of the appellate court (citing Padmanabhaswamy Temple, Govinda Menon, Sabapathy Pillai).
- The court observed that while these authorities establish that leave can be granted, leave is not to be granted routinely; it is an exceptional remedy because the policy of the law is to protect dispossessed persons from additional litigation instigated by those for whose benefit the acquisition is made.
- The court examined A.P. Agricultural University v. B. Ganamma, which had required certain preconditions (including a suggested requirement that the applicant show a right of appeal). The present court respectfully disagreed with the proposition that a non-party must demonstrate an underlying right of appeal as a precondition to leave, since the statutory scheme does not confer such a right on local authorities and companies. Nonetheless, the court accepted that leave is necessary and will be granted only in exceptional circumstances.
- The court distinguished Punjabi University on the basis that the Government (which indisputably had a right of appeal) was a co-appellant there; that case did not assist the Municipality here where no co-appellant with a statutory right had appealed.
- The court further considered the timing defect: the appeals were presented without the leave petitions. Because the Municipality has no statutory right of appeal, the appeals as originally presented were incompetent. The court held that subsequent leave petitions filed long after presentation cannot operate retroactively to validate appeals that were incompetent at the time of filing. The earlier Division Bench decision (Thayoob Sait) about curing defects was distinguished on the ground that it concerned parties who had a right of appeal and related remedies (e.g., condonation of delay), whereas here the Municipality had no right of appeal at all.
- Consequently, the court concluded that leave could not be granted where the appeals were originally incompetent and the leave petitions were filed only after the fact; the petitions for leave therefore failed.
Holding and Implications
Holding: The petitions for leave to appeal were dismissed. The court's order concludes with the single-line disposition: Dismissed. The court also ordered "No costs."
Implications:
- Direct effect on the parties: The Municipality's appeals, having been presented without the necessary leave and given that the Municipality has no statutory right of appeal, were held to be incompetent; the subsequent leave applications could not validate them. The petitions for leave were therefore dismissed and the Municipality must bear the consequences of the enhanced compensation order against it (subject to no further valid appellate remedy being shown in the record).
- Broader precedent: The opinion emphasizes established principles (that local authorities/companies benefiting from acquisition have only limited procedural rights under S. 55, and that non-parties may appeal only with leave) and reiterates that leave will be granted only in exceptional circumstances. The court expressly stated that leave will not be granted as a matter of course and that the policy of the law disfavors compelling dispossessed persons into further litigation at the behest of acquiring authorities. The opinion did not purport to lay down a novel rule of law beyond applying these established principles to the facts; accordingly, no new precedent was declared beyond the application of existing authorities and statutory interpretation.
Final disposition recorded in the opinion: The petitions are dismissed; no costs.
1. These petitions raise a common question and are being disposed of by a common order. In all these petitions, the Commissioner, Trichur Municipality, is the petitioner. These petitions arise from Land Acquisition Proceedings, L.A.R No. 137 of 1976. Lands were acquired for the purpose of construction of Bell Mouth and Shopping Centre for the Municipality in the Naduvilal Junction, Trichur. The original compensation awarded was enhanced by the court below. The Municipality has to pay this. The State has not filed any appeal. In these petitions the Commissioner of the Municipality requests that leave may be granted to him for filing appeals against the judgment and decree in L.A.R No. 137 of 1976 on the file of the Subordinate Judge's Court, Trichur. I shall consider the facts in L.A.A No. 137 of 1978 for the purpose of this judgment. This appeal was filed on 16th August, 1979 and the present application for leave under S. 151 CPC. on 3rd October, 1979. These two dates show that the appeal as originally filed was not accompanied by the leave petition. The question is whether the defect in presentation of the appeal will be cured by the subsequent application. This defect is common to all the petitions though the dates are different.
2. The contesting respondents have raised several pleas. According to them the appeals are not maintainable. In any case no leave can be granted since the leave petitions were not filed along with the appeals. They cannot cure the defect as they cannot operate retroactively.
3. Two questions arise in these petitions. (1) Whether a company or a local authority in whose favour an acquisition is made, is a person interested and (2) whether such a person has a right of appeal against the order of compensation.
4. Regarding the first question; a company or a local authority in whose favour an acquisition is made has an interest in the acquisition proceedings because it has to pay the compensation. But its rights are restricted; it cannot demand a reference. It can only appear and adduce evidence for the purpose of determining the amount of compensation. S. 55 of the Kerala Land Acquisition Act makes this clear. It reads:
“55. Acquisition of land at cost of a local authority, or company.—(1) Where the provisions of this Act are put in force for the purpose of acquiring land at the cost of any fund controlled or managed by a local authority or of a company, the charges of and incidental to such acquisition shall be defrayed from or by such fund or company.
(2) In any proceeding held before a Collector or Court in such cases, the local authority or company concerned may appear and adduce evidence for the purpose of determining the amount of compensation:
Provided that no such local authority or company shall be entitled to demand a reference under S. 20.”
5. Powers not enumerated in the Section are not available for the company or the local authority; hence no power to demand reference or to file an appeal.
6. In Nagpur Corpn v. Narendrakumar (AIR. 1959 Bombay 297) a Division Bench of the Bombay High Court held with reference to the Land Acquisition Act, 1894, that the local authority or company for whose benefit an acquisition is made, is not a person interested. In Mandalay Munol Committee v. Mauno It (AIR. 1929 Rangoon 115) a Division Bench of that court held that persons interested in S. 20 of the Act are persons interested in the land acquired as owners, tenants and the like and not persons interested as acquiring the land through the Secretary of State. Such persons had only a limited right and that is to appear and adduce evidence. The company or a local authority for whose benefits an acquisition is made can make evidence available before the Land Acquisition Officer or the court to fix the compensation. It cannot demand a reference. So viewed, it cannot be said to be a person interested. I am in respectful agreement with the principle enunciated in the above decisions.
7. The second question is whether such a person has a right of appeal against the compensation awarded. It is settled law that persons who are not parties to a proceeding but are aggrieved by the decree or order passed, can file an appeal questioning such order or decree after obtaining leave from the appellate court. In other words while there is no right to file an appeal, the appellate court can grant leave to do so. In Padmanabhaswamy Temple v. Raghavan Pillai (1960 KLT. 939) a Division Bench of this Court held that ‘a person who is not on the party array but who is bound by the decree or whose interests are prejudicially affected by it may appeal with the leave of the appellate court’. In Govinda Menon…* v. Madhavan Nair & Others… (1963 KLT. 619) another Division Bench of this court held. It may therefore be taken as settled law that a person who is not a party to the decree or order may with leave prefer an appeal from such decree or order. Leave in appropriate cases is granted to a person who without being a party is either bound by the order or is aggrieved by it or is prejudicially affected by it”.
8. In Sabapathy Pillai v. Special Tahsildar (1970 KLT. 1015) another Division Bench of this court held that a person who is not a party to an award but is bound by it or whose interests are affected by it, may file an appeal with the leave of the appellate court, though he cannot file an appeal as of right.
9. Recently Poti, J. in Commr., Trichur Municipality v. Krishna Menon (1979 KLT. 546) while considering the scope of Ss. 55(2) and 60 of the Land Acquisition Act, 1961 (Kerala), observed referring to 1974 A.P 299 that “that decision would not be of assistance to the appellant because in that case the party had moved for leave since the party had no right to appeal. There is no such application for leave and therefore there is no scope for considering the same”. This passage was relied upon to contend that the learned Judge had impliedly held that even though there was no right of appeal for local authority—the learned Judge also was considering the case of a local authority there—leave could be granted if applied for. What is settled by these authorities is that a local authority or company in whose favour an acquisition is made, has no right of appeal but in appropriate cases the court can grant leave to appeal. The question for consideration is whether this is one such case.
10. Under what circumstances can leave be granted. In A.P Agrl. University v. B. Ganamma (AIR. 1974 A.P 299) Chinnappa Reddy, J. as he then was, had occasion to consider a kindred question. The learned Judge was considering a land acquisition appeal by the Andhra Pradesh Agricultural University. It was held that leave of the court was necessary where a person who was not a party to the proceeding desired to prefer an appeal ‘but a precondition to the grant of leave is that he must satisfy certain basic requirements, one of which is that he should have a right of appeal’. The learned Judge observed that a local authority or a company had only a right to adduce evidence. It was further observed that the Agricultural University was not entitled to the grant of leave to appeal merely because it will ultimately have to meet the costs of acquisition. The fact that the University has to pay the compensation, according to the learned Judge, was not of such consequence. The person really affected is the person who has been deprived of the property. He cannot be compelled to fight a legal battle against the person for whose benefit the land is acquired. With utmost respect, while agreeing with the learned Judge that leave is necessary for filing an appeal by a local authority or a company, I find it difficult to accept the proposition that such a person must establish a pre-condition and certain basic requirements, one of which was that he should have a right of appeal. Such a person has no fight of appeal since the Act does not confer such a right. The local authority or company can only appear and adduce evidence. The right of appeal is subject to the granting of permission by the court. What should not be lost sight of in such matters is that a person who has been deprived of the property should not be compelled to fight a battle against the person for whose benefit the acquisition is made and it is only under exceptional circumstances that leave can be granted for filing an appeal.
11. A decision reported in Punjabi University v. A.S Ganesh ((1973) 3 SCC 800 : AIR. 1972 SC. 1973) was also brought to my notice. There a joint appeal was filed by the Punjabi University and the Punjab Government against an award of the court. There was some delay in filing the appeal. The delay was sought to be explained on the ground that the Registrar of the Punjabi University miscalculated the dates. The Punjab High Court refused to condone the delay on the ground that the right to file the appeal was primarily that of the Punjab Government who has not explained the delay. The Supreme Court held that delay should be condoned since it was for the benefit of the Punjabi University that the land was being acquired and it was the University who was meeting the cost of acquisition and for that reason it was that the Government left the matter to the University. Sufficient assistance cannot be sought from this judgment. In that case a joint appeal was filed by the Punjab Government and the Punjabi University and that makes all the difference. That the Government had a right of appeal cannot be disputed and an application for condonation of delay is a concomitant of that right. What is deducible from the authorities is that an appeal can be filed by a local authority only when permission is granted by the court. The local authority has to establish compelling reasons for the grant of permission. Permission will not be granted as a matter of course. The policy of the law is to discourage such appeals, for the good reason, that a citizen who is deprived of his property, should not be dragged to court on flimsy grounds at the instance of a person for whose benefit acquisition is made. The citizen loses his property not voluntarily but through coercive legal procedure. He cannot prevent acquisition, if properly made. Therefore he should not be compelled to face further litigation in relation to the compensation due to him. Though the local authority pays, it does not have the right to call the tune. In this case, the petitioner has not made out a case for grant of permission except that he is aggrieved by the enhancement of compensation.
12. The petitioners in this case have an additional difficulty. Since there is no right of appeal for the Municipality, the appeal when it was presented was incompetent. The leave petitions are filed long after the filing of the appeal perhaps by which time the appeals themselves had become barred. Without the applications to grant leave to appeal, the appeals cannot exist. These petitions cannot act retroactively. They can do so only if the original appeal had life. Since the Municipality has no right of appeal, the subsequent petitions cannot clothe those appeals with life. The applications should have been filed along with those appeals this not having been done, no leave can be granted. To meet this contention the petitioner's counsel invited my attention to a Division Bench decision of this Court in Thayoob Sait…* v. Ayyappan…. (1963 KLT. 445) where it has been held as follows:
“No hard and fast rule of general applicability can be laid down for dealing with appeals defectively filed under O. XLI, R. 1. Appropriate orders will have to be passed having regard to the circumstances of each case, hut the most important step to take in cases of defective presentation of appeals is that they should be carefully scrutinised at the initial stage soon after they are filed and the appellant required to remedy the defects. These principles should govern all defective proceedings filed in Court. The decision in 1961 KLT. 874 only points out that an appeal or petition filed beyond the period of limitation is liable to be dismissed if there is no prayer to condone the delay and that the office should put up such appeal or petition for orders without waiting for the party to give an application to condone the delay”.
13. In rare cases an application to excuse delay in filing an appeal can be filed after the appeal is presented. I have, with great respect, my own misgivings about the principle of law enunciated in this judgment. However, I do not think it necessary to consider the same as it can be distinguished from the case on hand. There the application for condoning the delay is filed by a person who has a right of appeal. That application if allowed can always operate retroactively. Here the petitions filed long after the filing of the appeal are by persons who have no right of appeal. For this reason also these petitions have to be dismissed. I dismiss these petitions. No costs.
14. Dismissed.
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