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.

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 Road, Palakkarai, Tiruchy 1 as 5th 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

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