Madras High Court
Tamil Nadu Cement Corporation vs M/S.Calcium Chemical Products on 30 November, 2011
Author: G.Rajasuria
Bench: G.Rajasuria
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 30/11/2011 CORAM THE HONOURABLE MR.JUSTICE G.RAJASURIA S.A.No.1792 of 2000 and S.A.No.1793 of 2000 and C.M.P.Nos.16784 to 16787 of 2000 S.A.No.1792 of 2000: Tamil Nadu Cement Corporation Alangulam Ltd., by its Managing Director, Alangulam P.O (via) Rajapalayam, Kamarajar District - 626 127. ... Appellant/ Appellant/Defendant Vs. 1.M/s.Calcium Chemical Products, a Regd. Partnership Firm (No.167/82) by its Partner Ranganathan 2.M/s.Bright Chemicals, a Regd. Partnership Firm (No.19/82) by its Partner N.K.Iyanar Raja ... Respondents/ Respondents/Plaintiffs S.A.No.1793 of 2000: Tamil Nadu Cement Corporation Alangulam Ltd., by its Managing Director, Alangulam P.O (via) Rajapalayam, Kamarajar District - 626 127. ... Appellant/ Appellant/Defendant Vs. M/s.Rajah Enterprises, a Regd. Partnership Firm, A.V.K.Velayuth Raja ... Respondent/ Respondent/Plaintiff Common Prayer Second Appeals filed under Section 100 of the Code of Civil Procedure against the common judgment and decree dated 24.09.1998 made in A.S.Nos.85 and 86 of 1990 on the file of the Principal Subordinate Judge, Tenkasi, in confirming the common judgment and decree dated 31.01.1990 passed in O.S.Nos.339 of 1986 and 331 of 1988 on the file of the Principal District Munsif, Sankarankoil. !For Appellant ... Mr.N.P.Sundarraj for Mr.A.Sivaji in both the appeals ^For Respondents... No appearance in both the appeals * * * * * :COMMON JUDGMENT
S.A.Nos.1792 and 1793 of 2000 have been focussed by the defendant impugning the common judgment and decree dated 24.09.1998 passed in A.S.Nos.85 and 86 of 1990 on the file of the Principal Subordinate Judge, Tenkasi, in confirming the common judgment and decree dated 31.01.1990 passed in O.S.Nos.339 of 1986 and 331 of 1988 on the file of the Principal District Munsif, Sankarankoil.
2. The parties, for the sake of convenience, are referred to hereunder according to their litigative status and ranking before the trial Court.
3. A re'sume' of facts absolutely necessary and germane for the disposal of this second appeal would run thus:
(i) The respondents in S.A.No.1792 of 2000 herein filed the suit in O.S.No.339 of 1986, as against the appellant herein namely the Tamil Nadu Cement Corporation Alangulam Ltd., seeking the following reliefs:
"a) for permanent injunction preventing the defendant its agents, men and servants from obstructing or otherwise disturbing the plaintiffs, their, agents and men from making use of the schedule mentioned village track for the purpose of the transporting the limestone.
b) directing the defendant to pay the costs of the suit. ...."
(extracted as such)
(ii) The respondent in S.A.No.1793 of 2000 herein filed the suit in O.S.No.331 of 1988, as against the appellant herein namely the Tamil Nadu Cement Corporation Alangulam Ltd., seeking the following reliefs:
"a) For a permanent prohibitory injunction restraining the defendant, its agents Subordinates, men and servants from obstructing or otherwise disturbing the Plaintiff, their agents, men from exercising the right to use the schedule cart-track for the purpose of Transporting the lime stone.
b) for costs. ..."
(extracted as such)
4. The defendant filed separately the written statements resisting the respective suits.
5. Whereupon the trial Court framed the issues.
6. During trial, P.W.1 to P.W.3 were examined and Exs.A.1 to A.42 were marked on the side of the plaintiffs. D.W.1 was examined and Exs.B.1 to B.31 were marked on the side of the defendant.
7. Ultimately, the trial Court decreed the suit, as against which the appeal was filed for nothing but to be dismissed by the first appellate Court.
8. Being aggrieved by and dissatisfied with the judgments and decrees of both the Courts below, the present second appeal has been focussed by the defendant on various grounds and also almost suggesting the same set of substantial questions of law thusly:
"1. Whether or not the Courts below are justified in decreeing the suit as prayed for?
2. Whether or not the Courts below are justified in holding that there is a suit pathway in the suit land when especially the appellant had established by documentary evidence that there is no pathway in existence in the suit property and equally pathway n S.No.26 passing through S.No.133 & 134 alone was utilized by the respondent for transporting?
3. In any event, whether or not the Courts below are justified in decreeing the suit in toto in contravention of the provisions of the Land Acquisition Act, wherein Section 16 of the Act states that the acquired land will vest with the acquiring authority without any encumbrance?
4. In any event without admitting, whether or not the respondents are estopped from claiming any legal right over the suit property much less against this appellant, when especially they had been utilising the suit property only after seeking permission from the appellant?
5. In any event, whether or not the Courts below have misconstrued the scope and ambid of the provisions of the mining concession rules 1960?
6. In any event, whether or not the Courts below are justified and upholding the suit property as pathway utilized by the respondent, when especially the respondents have failed to establish by oral or documentary evidence to show that they had been utilising for over 30 years and above, as required provisions of the Evidence Act?
7. In any event, whether or not the Courts below are justified in granting Injunction restraining the owner of the land viz., the appellant from interfering with the respondents utilising the suit property?
8. In any event, whether or not the Courts below are justified in disposing of the suit based on the orders passed by the Collector, when especially the Honourable High Court in W.P.No.2620/88 have held that the orders passed by the Collector will not intervene in the dispose of the suit?
9. In any event, whether or not the Courts below are justified in decreeing the suit, which has resulted in non-utilise of the suit property for the purpose for which it was acquired has laid down to the contravention of Land Acquisition Act and Mineral Concession Rules?
10. Any other question of law that may arise in the course of the arguments before the Honourable Court?" (extracted as such)
9. Despite printing the names of the respondents in both the second appeals, they have not chosen to appear and make their submissions and virtually, they remained exparte.
10. Hence, I proceed to decide the matter after hearing the learned Counsel for the appellant in both the second appeals.
11. The dictum laid down by the Honourable Apex Court in the following decisions:
(i) Hero Vinoth (Minor) v. Seshammal reported in (2006) 5 Supreme Court Cases 545.
(ii) Kashmir Singh v. Harnam Singh and another reported in 2008 (4) SCALE 300 and
(iii) State Bank of India and others v. S.N.Goya reported in 2009-1-L.W.1;
would be to the effect that under Section 100 of the Code of Civil Procedure, a Second Appeal cannot be entertained, unless a substantial question of law is involved.
12. The Honourable Apex Court, time and again, reiterated the point that in second appeal, as per Section 100 of the Civil Procedure Code, interference is possible if at all there is any perversity or illegality in the judgments of the Courts below or total absence in considering the evidence available on record or misreading of evidence on the part of the Courts below.
13. On perusal of the records and hearing the learned Counsel for the defendant, I decided to formulate the following substantial questions of law:
(i) Whether the Courts below were justified in placing reliance on the Collector's letters - Ex.A.28 and the village map - Ex.A.6, for the purpose of holding that there existed a cart track in the property which was acquired earlier by the Government under the Land Acquisition Act and subsequently, handed over the same in favour the defendant and that too disregarding the admission of P.W.1 in favour of the defendant's plea?
(ii) Whether there is any perversity or illegality in the judgments and decrees of both the Courts below?
14. The whole kit and caboodle of the facts and figures as stood transpired from the records and the arguments of the learned Counsel for the appellants would make me to visualise the following facts:
The suit property and other properties were indubitably and indisputably acquired by the Government under the Land Acquisition Act, 1894, for the use of the defendant and at that time, the plaintiffs in both the suits have not even started their mining operation there. Only long after that, they got licences for mining from the Government concerned and started their operation in the property nearby the defendant's property. Precisely, the contention of the plaintiffs is to the effect that there existed a cart track in the property acquired by the Government and it must be made available for the plaintiffs' to carry the excavated limestone by the lorries. They also wanted the cement pipes to be laid below the pathway wherever the canal or channel intercepting the cart track so as to facilitate their lorries to pass freely along the said cart track and also to allow the free flow of water along the canals/channels. In that connection, a writ petition in W.P.No.2620 of 1988 was filed and this Court vide order dated 15.04.1988 passed order (Ex.A.29) and the operative portion of the same, would run thus:
"... Making an over all assessment of the facts of the case, I deem it fit and proper, by way of temporary measure, to give the following directions: (1) The second-respondent shall, by way of temporary measure, permit the petitioner the user of the original plan marked cart-track passing through S.Nos.24, 25, 26, 29/1 and 29/2B of Pandapulli village in Sankarankoil Taluk, for taking limestones from the petitioner's land in S.No.29/2. (2) The second-respondent shall also by way of temporary measure permit the petitioner to put up cement pipes over the channel in the aforesaid cart- track at two points, namely, S.Nos.25/2 and 26/2A.
(3) Apart from what has been reserved by way of temporary measure in clauses (1) and (2) supra, the petitioner shall not indulge in any act detrimental to the rights and interests of the second respondent. The other directive given by the first respondent that the private mining lessees have no right to put pucca culverts across the cart-track shall also hold good. (4) The petitioner is also at liberty to go to Civil Court, to establish any rights of its, over the concerned cart-track and obtain appropriate orders from the Civil Court, making out a case therefor.
(5) The decision of the Civil Court shall ultimately govern the rights and claims of the parties over the existence and user of the concerned cart-track.
The directives given by the first-respondent and the directions in the present order shall certainly stand superseded by the ultimate decision of the Civil Court.
This Writ Petition is ordered in the above terms. There will be no order as to costs."
15. It is, therefore, crystal clear from the above order that de hors the Collector's communication as contained in Ex.A.28, the civil Court was expected to deal with the matter.
16. The learned Counsel for the defendant would meaningfully and reasonably, acceptably and correctly put forth and set forth his arguments to the effect that both the Courts below unmindful of the salient features of the Land Acquisition Act and the implications attached to it, simply held as though despite the acquisition of the land concerned, the alleged cart track continues to exist for the plaintiffs to make use of the same for taking the limestone in the lorries.
17. The learned Counsel for the defendant would stress upon the fact that absolutely, there is no revenue record worth the name could be produced by the plaintiffs to highlight and spotlight, demonstrate and display that in the said property, there existed the said cart track. Even for argument sake, it is taken that there existed a cart track over the land acquired by the Government, yet on such acquisition, all easements should be taken as the ones which got extinguished.
18. Here, according to the learned Counsel for the defendant, except for certain dotted lines in the village plan, there is nothing to indicate that there existed a cart track.
19. At this juncture, I would like to fruitfully refer to Section 16 of the Land Acquisition Act for ready reference thus:
"16. Power to take possession.- When the Collector has made an award under section 11, he may take possession of the land which shall thereupon vest absolutely in the Government, free from all encumbrances."
20. A plain reading of the above provision would indicate and connote that on the land being acquired by the Government under the Land Acquisition Act, all encumbrances including easements existed on the land, would get extinguished.
21. The learned Counsel for the defendant would further buttress and fortify the aforesaid proposition by citing the following decisions:
(i) Govt. of A.P. and another v. Syed Akbar reported in (2005) 1 Supreme Court Cases 558. An excerpt from it, would run thus:
"14. From the position of law made clear in the aforementioned decisions, it follows that (1) under Section 16 of the Land Acquisition Act, the land acquired vests in the Government absolutely free from all encumbrances; ..."
(ii) State of H.P. v. Tarsem Singh and others reported in (2001) 8 Supreme Court Cases 104. An excerpt from it, would run thus:
"9. In the present case, Section 3 of the Act starts with a non obstante clause. Notwithstanding anything contained in any law, agreement, instrument, custom or usage or any decree of the court, all rights, title and interests in the land shall stand extinguished and all such rights, title and interests shall vest in the State free from all encumbrances. If we accept the argument of learned counsel for the respondents that easementary right being Act, the result would be that the land would carry burden or charge affecting possession, interests and rights in the land. Such a meaning cannot be given to the expression "free from encumbrances". When the legislature has used the expression "free from encumbrances", it means the vesting of land in the State is without any burden or charge on the land, including that of easementary right. We are, therefore, of the view that the consequence of vesting of right in the land free from all encumbrances is that the interest, right and title to the land including the easementary right stood extinguished and such rights vested in the State free from all encumbrances."
22. As such, a bare perusal of the aforesaid precedents would unambiguously and unequivocally highlight and spotlight that after the land having been acquired by the Government, the question of claiming easement right over it would not arise. If really, there had been a cart track, that would have found place in the records which emerged at the time of land acquisition.
23. To the risk of repetition and pleonasm, without being tautologous, I would like to point out that long after the acquisition only, the plaintiffs started their mining operation in the nearby place. The trial Court simply ignored the fact that those who earlier undertook mining operation in that place, transported the limestone by the lorries by making use of some other track.
24. Ex.B.1, letter dated 13.03.1985 sent by M/s.Calcium Chemical Products Ltd. - the first plaintiff; Ex.B.2, letter dated 20.03.1985 written by M/s.Bright Chemicals Ltd. - the second plaintiff and Ex.B.5, letter dated 13.03.1985 sent by M/s.Rajah Enterprises, to the General Manager of the defendant Corporation would reveal that they never asserted that there had already been a cart track in existence. In fact, the tenor of the letters referred to supra, would indicate and exemplify that the plaintiffs only implored and entreated, requested and prayed the defendant to give permission for them to temporarily use the land of the defendant for transporting the limestone till they could get from the Government an alternative way to transport the limestone from their quarry.
25. As such, nowhere they asserted that there already existed a well trodden cart track supported by revenue records.
26. It is fruitful to refer to certain excerpts from Ex.A.28, the Collector's letter dated 20.02.1988, thusly:
"2. The Manager (Administration) of Tancem in his letter second cited, has stated that the course of Cart track had been altered, the adjacent lessees had attempted to form a pucca lorry transport road and also to put up culvert across an odai on their lands and so, such action would affect the interests of this company.
3. It is true that a plan marked cart track passes from the Main Road through the wet lands in S.Nos.24, 25, 26, 29/2B etc. and also a plan marked field channel (bouthi) is running through S.No.24, 25/2, 25/3, 29/1, 29/2B etc. by the side of the cart track. The original cart track cuts across the field channel at two points viz., S.Nos.25/2 and 26/2A. Since water has to flow for irrigation now through this field channel, it is not possible to take limestone loads without putting up-cement pipes across the cart track at two points. Adjacent lessees have no right to put pucca culverts.
4. In view of the above, you are requested not to disturb the lessees from using the cart track by putting cement pipes over channel temporarily as it is a public property although passing through the patta lands (acquired lands), for transporting the mined materials through the original plan marked cart track passing through S.Nos.24, 25, 26, 29/2B etc. and for putting up cement pipes across the cart track (as it exists now) at two points viz. S.No.25/2 and 26/2A of Pandapuli village in Sankarankoil Taluk."
(extracted as such)
27. The said Collector's letter is not fortified by any revenue record and it is also oblivious of the land acquired under the land acquisition proceedings.
28. Trite, the law is that the land acquisition proceedings had the effect of extinguishing all easements over the land acquired. Over and above that, the revenue records also did not reveal that prior to the land acquisition proceedings, there was a cart track in existence in S.Nos.24, 25, 26, 29/2B etc.
29. The Collector's letter presupposed as though there had been a cart track even though the revenue records, are silent on that.
30. I recollect and recall the maxim "Non potest adduci exceptio ejusdem rei cujus petitur dissolutio." [An exception cannot be brought upon the same matter whose determination is at issue (in the action at hand).
31. Here, this Court while passing order in the writ petition (Ex.A.29) mandated that it is for the civil Court to decide the facts concerned and as such, left the matter to be decided by the civil Court. The onus probandi is on the plaintiffs to prove the facts, but they only placed reliance on the communication given by the Collector and other correspondences.
32. It is a run of the mill principle that if any public cart track exists, certainly, that would get reflected in the revenue records. By the revenue records, I mean the revenue records prepared in accordance with law governing such preparation of records.
33. Here, both the Courts below failed to take note of the fact that no such authentic revenue map or revenue register was produced so as to buttress and fortify the contention of the plaintiffs that there existed a cart track.
34. As such, it is glaringly and plainly clear that the plaintiffs could not prove that there existed in stricto sensu a cart track and their contention is not supported by any authentic and legally acceptable revenue record.
35. The plaintiffs themselves sought permission from the defendant for temporarily using the land of the defendant for transporting the limestone. The language used in those letters viz., Ex.B.1, letter dated 13.03.1985; Ex.B.2, letter dated 20.03.1985 and Ex.B.5, letter dated 13.03.1985, would also adumbrate and fore-look, bespeak and betoken that there existed some other track which was not so suitable for them to transport the limestone.
36. At this juncture, I would like to refer to Section 13 of the Indian Easements Act, 1882, and the same is extracted hereunder for ready reference:
"13. Easements of necessity and Quasi Easements:- Where one person transfers or bequeaths immovable property to another-
(a) if an easement in other immovable property of the transferor or testator is necessary for enjoying the subject of the transfer or bequest, the transferee or legatee shall be entitled to such easement; or
(b) if such an easement is apparent and continuous and necessary for enjoying the said subject as it was enjoyed when the transfer or bequest took effect, the transferee or legatee shall, unless a different intention is expressed or necessarily implied, be entitled to such easement; or
(c) if an easement in the subject of the transfer or bequest is necessary for enjoying other immovable property of the transferor or testator the transferor or the legal representative of the testator shall be entitled to such easement; or
(d) if such an easement is apparent and continuous and necessary for enjoying the said property as it was enjoyed when the transfer or bequest took effect, the transferor or the legal representative of the testator, shall unless a different intention is expressed or necessarily implied, be entitled to such easement.
Where a partition is made of the joint property of several persons-
(e) if an easement over the share of one of them is necessary for enjoying the share of another of them, the latter shall be entitled to such easement; or
(f) if such an easement is apparent and continuous and necessary for enjoying the share of the latter as it was enjoyed when the partition took effect, he shall, unless a different intention is expressed or necessarily implied, be entitled to such easement.
The easements mentioned in this Section, clauses (a) (c) and (e) are called easements of necessity.
Where immovable property passes by operation of law, the persons from and to whom it so passes are, for the purpose of this section, to be deemed, respectively the transferor and transferee."
37. If the suit has to be taken as the one instituted based on easement of necessity, then at once, this Court could label or dub this plaint as the one which was ill-drafted. There is nothing to demonstrate and exemplify that the properties which the plaintiffs purchased, were recently partitioned. It is also not as though around their lands, only the defendant is owning the land. There are also other owners owning lands around the plaintiffs' land and they ought to have been added in order to justify their claim based on easement of necessity. After the land having been acquired by the Government, that land should be treated as Government land. Wherefore, as a sequalae, this Court has to hold that it is not 20 years' prescription, but 30 years' prescription as contemplated under Section 15 of the Indian Easements Act, 1882, is attracted.
38. As such, there is no consistency in the ratiocination adhered to by both the Courts below in adjudging the matter. The plaintiffs would try to get a decree on the ground that there existed a cart track, but they could not prove it and both the Courts below simply relied on some remark made by the Collector that some lines are found drawn in the village map. If such a remark is held to be sufficient proof of the existence of a pathway, then it would lead to disastrous consequences. If any overenthusiastic individual by way of overreaching himself, might put or cause somebody to put some lines on the FMB or map, that would not constitute evidence in stricto sensu. The authority concerned should assess as per the relevant law that a particular area is a cart track and there should be sub-division number assigned to it. There should be evidence also in support of such assessment. Absolutely, there is no iota or shred, shrad or miniscule, jot or pint, smidgeon or molecular extent of evidence to indicate and connote that in stricto sensu, as per the Government records there existed a cart track.
39. No doubt, I could visualise that the Collector being the Head of the District in order to bring about harmony among licencees of mining operation. With that in mind, perhaps, the Collector might have issued the letter - Ex.A.28. The Court cannot give undue importance to it, but I have to see the reality and render justice.
40. The learned Counsel for the defendant by inviting the attention of this Court to the averments in the written statement, would submit that even P.W.1 on the plaintiffs' side candidly and categorically, without mincing words, admitted that when he started mining in his place, he transported the limestone through the land of one Lovely Chemicals, but both the Courts below failed to take note of the said fact also.
41. What I could get from the available records, is that the plaintiffs after obtaining mining licences found that the then existed routes for transporting the limestones were not so conducive to reach the main road which is situated on the west of a large tract of land of which the plaintiffs' land also forms a part and their lands are not adjacent to that road. Wherefore, the plaintiffs were constrained to file the suits but not in a comprehensive manner.
42. I could also understand that both the Courts below were simply carried away by mere compassion that the defendant being the Government Corporation could very well allow the plaintiffs who are licencees under the Government to carry the limestone through the land of the defendant which is a Government Corporation. When the Courts are called upon to decide the lis based on law, the question of straightaway ignoring the law and deciding the lis out of benevolence and compassion, would not arise. In the case of easement, law should strictly be followed, otherwise, it would be taken as a bad precedent enabling a person to barge into his neighbour's another man's land under the pretext of easementary right.
43. It is, therefore, clear that both the Courts below did not apply the correct provisions of law in analysing the evidence and deciding the lis and they did not also interpret the documents placed before them appropriately. In my opinion, the findings of both the Courts below are perverse and they should be interfered with.
44. Accordingly, I am of the considered view that both the Courts below in the absence of clear evidence simply granted the reliefs as prayed for warranting interference in these second appeals.
45. As such, both the substantial questions of law are answered as under:
(a) The substantial question of law No.(i) is answered to the effect that the Courts below were not justified in ignoring the admission of P.W.1 and in bluntly placing reliance on the Collector's letters - Ex.A.28 and the village map - Ex.A.6, for the purpose of holding that there existed a cart track in the property which was acquired earlier by the Government under the Land Acquisition Act and subsequently, handed over the same in favour the defendant free from encumbrances including all easements if any existed thereon.
(b) The substantial question of law No.(ii) is answered to the effect that perversity and illegality crept into the judgments and decrees of both the Courts below.
46. On balance, both the second appeals are allowed setting aside the judgments and decrees of both the Courts below and the original suits are dismissed. Consequently, the connected Miscellaneous Petitions are closed. No costs.
rsb To
1.The Principal Subordinate Judge, Tenkasi.
2.The Principal District Munsif, Sankarankoil.