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Y. Venkannachowdary Vs. the Special Deputy Collector, Land Acquisition (General), Hyderabad District and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtAndhra Pradesh High Court
Decided On
Case NumberReview Civil Misc. Petn. Nos. 10785 to 10789 of 1979
Judge
Reported inAIR1981AP232
ActsLand Acquisition (Madras Amendment) Act, 1953 - Sections 2 and 11; Land Acquisition Act, 1894 - Sections 23, 28 and 34; Evidence Act, 1872 - Sections 115; Constitution of India - Articles 14 and 226; Code of Civil Procedure (CPC), 1908 - Order 47, Rule 1; Indian Contract Act - Sections 72; Andhra Pradesh Adoptation of Laws Order, 1957
AppellantY. Venkannachowdary
RespondentThe Special Deputy Collector, Land Acquisition (General), Hyderabad District and ors.
Appellant AdvocateN. Rajeswara Rao, Adv.
Respondent AdvocateGovt. Pleader for ;G.A.D., ;K.V. Ayyappa Sastri and ;V. Raja Gopal Reddy, Advs.
DispositionPetition allowed
Excerpt:
.....right - sections 2 and 12 of land acquisition (madras amendment) act, 1953, sections 28 and 34 of land acquisition act, 1894, part 3 schedule 4 and order 90 para 21 of a. p. land acquisition manual and articles 14 and 226 of constitution of india - petitioner's land acquired by central government - interest at rate of 4% p.a. awarded in compensation - act did not mention objective behind decrease in rate of interest from 6% to 4% - held, provision prescribing decrease in interest violative of article 14. (ii) maintainability of review - order 47 rule 1 of code of civil procedure, 1908 - review filed without making court aware of necessary provisions to be dealt with - omission due to counsel's negligence - appeal cannot be decided on merits in such case - review allowed as omission of..........raises the question of rate of interest to be awarded on the amount of compensation under the land acquisition act vis-a-vis the lands acquired for the central government in the year 1963. the material particulars, in brief, may be sequenced. 2. the lands of the petitioners were acquired for the central government, inter alia, towards the construction of railway staff quarters; and possession of the lands was taken over on 6-12-1963, 12-1-1964 and 15-6-1965. interest at the rate of 4 per cent per annum was awarded on the compensation amount; and the same was eventually confirmed by this court in the appeal, which is now sought to be reviewed. 3. the grounds briefly are: an honest mistake was committed by the counsel in not bringing to the notice of the court, paragraph 21 of.....
Judgment:

Seetharama Reddy, J.

1. This review raises the question of rate of interest to be awarded on the amount of compensation under the Land Acquisition Act vis-a-vis the lands acquired for the Central Government in the year 1963. The material particulars, in brief, may be sequenced.

2. The lands of the petitioners were acquired for the Central Government, inter alia, towards the construction of Railway Staff Quarters; and possession of the lands was taken over on 6-12-1963, 12-1-1964 and 15-6-1965. Interest at the rate of 4 per cent per annum was awarded on the compensation amount; and the same was eventually confirmed by this Court in the appeal, which is now sought to be reviewed.

3. The grounds briefly are: An honest mistake was committed by the Counsel in not bringing to the notice of the Court, paragraph 21 of Schedule IV of Part III of the Land Acquisition Manual, which provides for interest at the rate of 6 per cent per annum in cases of acquisition of land for the purposes of the Central Government though the rate is 4 per cent per annum if the land is acquired for the State Government. The said Para. 21 of Board's Standing Order 90 was amended only in the year 1966 by G. O. Ms. No. 1364 dated 21-11-1966 providing for payment of interest at the rate of 4 per cent per annum regardless of the fact whether the land is acquired for the Central Government or the State Government. Since the amendment is subsequent to the acquisition, i.e., 1963, the rate of interest will be 6 per cent per annum. The Land Acquisition (Madras Amendment) Act, 1953, which reduces the rate of interest from 6% to 4% is applicable only to the lands acquired for the purposes of the State Government. In fact, Board's proceedings, B. P. Mis. No. 1005 dated 2-9-1953 and Government Memo No. 3695-C/50-2, Rev. dated 6-8-1953 issued thereafter clearly demonstrate that the amendment is applicable to cases of acquisition of land for the State Government which is further made clear under Para 21 of B. S. O. 90. That B. S. O. 90 was also adopted by the Andhra Pradesh State Government and continues to be in operation till it is amended by G. O. Ms. 1364 dated 21-11-1966.

4. If the intention of the Amendment Act is to make it applicable to the acquisitions for the Central Government also, then the same would have been challenged as discriminatory, as different rates of interest prevailed in different parts of the country. Further, the Government is estopped from questioning para 21 of B. S. O. 90. The said instructions were, in fact, carried out and acted upon till they were amended in 1966. Memo No. 4693-H/61-l-Rev., dated 1-11-1961 and G. O. Ms. No. 1498 dated 25-9-1962 are only in the nature of correspondence. The review petitions satisfy the grounds mentioned in Order 47, Rule 1, Civil Procedure Code. Further, the decision reported in (Ed.) referred to in the judgment under review, has no application, as there is no provision similar to para 21 of B. S. O. 90 in that State.

5. The counter averments, in brief, are:--The Amendment Act of 1953 does not make any distinction for payment of interest between the lands acquired for the State Government or for the Central Government.Memo No. 4693-H/61-5, Revenue dated 1-11-1961 and thereafter G. O. Ms. No. 1498, Revenue dated 25-9-1962 clarify the position that if the interest is paid at the rate of 6 per cent per annum instead of 4 per cent per annum for lands acquired for Railways Department the excess interest 2 per cent will have to be recovered. It is obviously due to mistake and oversight that Para 21 of Madras B. S. O. 90 was incorporated while preparing the A. P. Land Acquisition Manual in 1965. Para 21 does not provide for payment of interest at a particular rate. On the other hand, it mentions that Section 34 of the Land Acquisition Act provides for payment of interest at 6 per cent per annum if the acquisition is for the purposes of the Central Government, though Section 34 does not speak of payment of interest at 6 per cent, per annum if the acquisition is for the purposes of the Central Government. Even otherwise, the Land Acquisition Manual contains only administrative instructions which do not confer any legal rights. Further, there is no new material as contemplated under Order 47, Rule 1, Civil Procedure Code, which would warrant any review.

6. Before adverting to the arguments foe and against the relevant statutory and other provisions may be noticed.

7. The Land Acquisition (Madras Amendment) Act, 1953 is extracted hereunder:

'The Land Acquisition (Madras Amendment) Act, 1953. (Received the assent of the President on the 29th June, 1953, published in the Fort St. George Gazette, Part IV-B, page 37, dated the 8th July, 1953).

Act No. XII of 1953.

An Act further to amend the Land Acquisition Act, 1894 in its application to the State of Madras.

Whereas it is expedient further to amend the Land Acquisition Act, 1894 (Central Act I of 1894) in its application to the State of Madras, for the purposes hereinafter appearing. It is hereby enacted as follows:

1. (1) This Act may be called The Land Acquisition (Madras Amendment) Act, 1953.

(2) It extends to the whole of the State of Madras.

2. In Sections 28 and 34 of the Land Acquisition Act, 1894 (Central Act I of 1894)-

(i) for the words 'six per centum', the words 'four per centum' shall be substituted;

(ii) the following proviso shall be added at the end, namely:-- 'Provided that where such possession is taken before the commencement of the Land Acquisition (Madras Amendment) Act, 1953, the foregoing provision shall have effect asif for the rate of four per centum per annum specified therein the rate of six per centum per annum had been substituted'.

Pant 21 of the Board's Standing Order 90 (B. S. O. 90) reads:

'21. Rules to be observed in making payment in cash-- (1) The payment of compensation should be made as soon after the declaration of the award as possible, as under Section 34 of the Act, interest at the rate of 6 per cent per annum in cases of acquisition of land for the purposes of Central Government, and at the rate of 4 per cent per annum in cases of acquisition of land for purposes of the State Government is payable on the amount of compensation for the interval between the date of occupation and the date of payment. Accordingly, the Collector of the other officer duly empowered should immediately after making an award under Section 11, tender payment of compensation to such of the persons entitled thereto as are then present either personally or by their representative'.

8. The relevant portion of G. O. Ms. No. 1364, Revenue dated 21-11-1966 reads:

'The Government have examined the proposals of the Board of Revenue to amend para 21 (1) of B. S. O. 90. The Government accepts the above proposals and issue the following amendment

AMENDMENT

For the existing para 21 (1) of B. S. O. 90, the following paragraph shall be substituted :--

Para 21. 'Rules to be observed in makingpayment in cash :--

(1) The payment of compensation should be made as soon after the declaration of the award as possible, as under Section 34 of the 1. A, Act, interest at 4 per cent per annum is payable on the amount of compensation for the interval between the date of occupation and the date of payment. Accordingly, the Collector or other officer duly empowered should immediately after making an award under Section 11 tender payment of compensation to such of the persons entitled thereto as are then present either personally, or by their representatives'.

Memo. No. 4693-H/61-1, Revenue dated 1-11-1961 reads:

'Sub:-- Land Acquisition (East Godavari) Tuni taluk -- S. Annavatam Village S. Nos. 121/2 etc., acquired for the Railway Department -- Payment of compensation -- Rate of interest -- Instructions -- Issued.

Ref:-- 1. Government Memo No. 4693-H/ 61-3 Revenue dated 15-9-1961.

2. From the Collector of East Godavari Ref. B2/2262/61 dated 30-9-1961.

With reference to his letter second cited, the Collector of East Godavari is informed that Sections 28 and 34 of the Land Acquisition Act, 1894, as amended by Madras Act XII of 1953, provide for payment of interest on the compensation amount at the rate of 4 pet cent, per annum from the date of taking possession, until the compensation amount is paid or deposited. The reduction of the rate of interest from 6 per cent to 4 per cent made in the said amendment came into force from 8-7-1953, and it applies to all cases of acquisition of lands undertaken by the State Government both for the State and for the Central Government, since there is no specific provision to the contrary in the Act.

In view of this legal position, the view expressed by the Collector in the penultimate sentence of para 2 of his letter second cited is correct. The Collector is therefore requested to adopt the rate of 4 per cent for calculating interest in this case as well as in all similar cases.

The Board of Revenue is requested to give suitable instructions to all the Collectors with reference to the clarification issued in paragraph 1 above'.

G. O. Ms. No. 1498, Revenue, dated 25-9-1962, in so far as it is relevant, reads:

'G. O. Ms. No. 1498. Revenue (H) Department, dated the 25th September, 1962.

Read the following :--

1. Government Memo No. 4693/H/61-5 Revenue dated 1-11-1961.

2. From the Board of Revenue L. Dis. G1/1160/62 dated 29-3-1962.

ORDER

1. In the Government meMO first read above, the Collector of East Godavari was informed that the reduction of rate of interest on compensation from 6 per cent to 4 per cent made by virtue of Madras Act XII of 1953 came into force from 8-7-1953, and that it applies to all cases of acquisition of lands undertaken by the State Government either for the State Government or for the Central Government. The Board of Revenue has, in its reference 2nd read above, brought to the notice of Government that before the above instructions were received by him, the Special Deputy Collector, Land Acquisition Gudivada passed an award on 30-11-1961 granting interest at the rate of 6 per cent per annum in a case Department in Manthana village, Gannavaram Taluk. The Board of Revenue hat felt that there it no provision of law under which the excess amount paid to the awardees by way of a higher rate of interest can be recovered. Board was therefore recommended that the action of the Special Deputy Collector in having paid interest at 6 per cent per annum may be ratified.

2. The Government have examined the whole question. Under Section 72 of the Indian Contract Act person to whom money has been paid by mistake is bound to repay ..... The Government can always recover the excess amount paid by them.

3. In view of the legal position stated above, the Board of Revenue is informed that there is no objection to recover the excess amount paid to the awardees by the Special Deputy Collector .....

The preamble to the Madras Amendment Act states :

'Whereas it is expedient further to amend the Land Acquisition Act, 1894 (Central Act I of 1894), in its application to the State of Madras, for the purposes thereinafter appear-ing'.

9. But, however, no purposes have been enumerated in the entire Amendment Act XII of 1953. Thereafter, on the heels, two proceedings were issued by the Madras Government, viz., B. P. Mis. 1005 dated 2-9-1953 and Government Memo No. 3695-C/50-20 Revenue dated 6-8-1953; and they have been cited in para 21 of B. S. O. 90.

10. Now, as is evident from papa 21, It is titled 'Rules to be observed in making payment in cash', and in the body of it, it is stated,

'The payment of compensation should be made ..... as under Section 34 of the Act, interest at the rate of 6 per cent per annum in cases of acquisition of land for the purposes of Central Government, and at the rate of 4 per cent per annum in cases of acquisition of land for the purposes of the State Government is payable on the amount of compensation'.

meaning thereby that the purported amendment Act XII of 1953 reduced the rate of interest from 6 per cent to 4 per cent only in cases of acquisition of land for purposes of State Government and not the Central Government. In fact, para 21 of the said B. S. O. has been admittedly acted upon and actually the interest has been awarded at the rate of 6 per cent per annum in case of acquisition of land for the Central Government. The Madras B. S. O. 90 has been admittedly adopted by the Andhra Pradesh State Government, which in its purport and content is the same as B. S. O. 90.

11. The main submission of the learned Government Pleader which seems to have substance is that the interpretation given by way of administrative instruction cannot guide the construction of a statute. Reliance was placed on the following decision. In Commr. of Income-tax v. K. Srinivasan, : [1953]32ITR87(SC) , the Supreme Court observed (at p. 118):

'The interpretation placed by the Department on any provision of the Act cannot be considered to be a proper guide when the construction of the statute is involved'.

In Shivamurti v. Dudhe, : AIR1972Bom152 , a single Judge of the Bombay High Court, while referring to the Civil v. Union of India, : 1978(2)ELT355(SC) . In the light of decisions of the Supreme Court referred to above, we have no hesitation to hold that the Land Acquisition Manual containing Para 21 of the Board's Standing Order is only a guidance to the Subordinate Officers and, therefore, the same cannot be called in aid to interpret the Amendment Act of 1953, and since the Amendment Act provides for 4 per cent interest, it has to be held that whether the acquisition of land is for the State purpose or Central purpose, the rate of interest will be 4 per cent only.

12. The next contention, which should not detain us long is, whether the Government can be estopped in view of para 21 of B. S. O. 90 from pleading that as per the Madras Amendment Act, 1953, only 4 per cent interest will have to be awarded on the amount of compensation even if the acquisition of land is for the Central Government It is well settled that there cannot be any estoppel against a statute. Hence the contention which is devoid of substance, is rejected.

13. The further contention is that the A. P. Land Acquisition . v. State of Madras, : AIR1959SC694 ; R. Abdulla Rowther v. S. T. A. Tribunal, AIR 1959 SC 896 and Fernandez v. State of Mysore, : [1967]3SCR636 , theSupreme Court while referring to particular G. Os. and the instructions contained in the Mysore Public Works Department Code, held that they are mere administrative instructions and not statutory rules. Therefore, even if there has been any breach of such executive instructions, that does not confer any right on any member of the public to ask for a writ against the Government by a petition under Article 226 of the Constitution. The contention of the teamed Government Pleader in this behalf is well founded and, therefore, we have no hesitation to hold that the executive or administrative directions do not confer an enforceable right, as they are not statutory in character.

14. The contention that no grounds contemplated under Order 47, Rule 1, Civil Procedure Code, have been made out to justify any review has no substance. Reliance was placed on a decision of the Supreme Court in A. T. Sharma v. A. P. Sharma, : (1979)4SCC389 , wherein Sarkaria and Chinappa Reddy, JJ., held (at p. 1048):

'It is true as observed by this Court in Shivdeo Singh v. State of Punjab (AIR 1963 SC 1909) there is nothing in Article 226 of the Constitution to preclude a High Court from exercising the power of review which inheres in every Court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it But, there are definitive limits to the exercise of the power of review. The power of review may be exercised on the discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found; it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merits. That would be province of a Court of appeal. A power of review is not to be confused with appellate power which may enable an appellate Court to correct all manner of errors committed by the subordinate Court.

15. However, the learned counsel for the petitioners submitted that he, by mistake, could not bring Para 21 of B. S. O. 90 to the notice of the Court at a time when the main case was argued and, therefore, the mistake of a counsel will be a sufficient ground for granting review. Reliance was placed on the decisions reported in Govinda Cheitiyar v. Varadappa, AIR 1940 Mad 17 and P. Gangamma v. P. Venkamma, 1954 Andh LT (Civ) 214 : (AIR 1957 Andh Pra 481); in Govinda Chettiyar v. Varadappa, AIR 1940 Mad 17, Patanjali Sastri, J., held:

'There was of course no mistake or error apparent on the face of the record in this case. If there were, that would obviously be a sufficient ground by itself for a review. But the misapprehension owing to which the learned counsel for the respondents says he did not urge all his arguments in support of the finding recorded in favour of his clients by the first Court, and the consequent erroneous impression on the part of the learned subordinate Judge for which, of course, he was not at all to blame but the Counsel was alone responsible. That the latter had noarguments to urge to meet the points raised by the appellant's counsel seem, to my mind, to be analogous enough to an error apparent on the face of the record to be a sufficient reason for review under Order 47, Rule 1, C. P. C. The decision in (1925) ILR 3 Rang 261 : (AIR 1925 Rang 314) and (1925) 49 Mad LJ 671 : (AIR 1925 Mad 1031), which recognize a power of review in cases of mistake of counsel or mistake of the Judge leading to errors in the judgment though not apparent on the face of the record, seem to support this conclusion'.

In P. Gangamma v. P. Venkamma (Supra), Umamaheswaram, J., held that the mistake of Counsel would be a sufficient ground for granting review under Order 47, Rule 1, Civil P. C. The learned Counsel also relied on the judgment in W. A. M. P. No. 141/74 in W. A. No. 238/73, dated 22-3-1974 wherein a Division Bench of this Court reviewed its judgment on the ground that a particular amendment of a section in the Municipal Act was not brought to the notice of the Court by the Advocates of both sides at a time when the main judgment was delivered and which was brought to their notice in the review petition.

16. Since the Supreme Court decision cited is, in the main, with reference to Article 226 of the Constitution we are inclined to hold that inasmuch as certain important provision was not brought to the notice of the Court at a time when the appeal was argued owing to the mistake of counsel which would amount to an error apparent on the face of the record, review of the judgments in civil appeals is warranted. Hence the contention of the learned Government Pleader fails and is rejected.

17. The last and vital contention of the Counsel fox the petitioners is that the MadiasAmendment Act of 1953, which reduces the late of interest from 6 per cent to 4 per cent in respect of land acquired for the Central Government, is ultra vires and discriminatory and, therefore, violative of Article 14 of the Constitution. A citizen of Andhra Pradesh Stale will be awarded only 4 per cent interest if the land which is situated in the State of A. P. is acquired for the Central Government, whereas a citizen, say, of the State of Orissa if the land is acquired for the Central Governments, will be awarded interest on the amount of compensation at 6 per cent per annum. Therefore, it is discriminatory as the classification has not been based upon any intelligible differentia nor has it a rational relation to the object sought to be achieved and, therefore, the Amendment Act must be struck down. The learned counsel relied upon the following decisions. In Vajravelu v. Special Deputy Collector, : [1965]1SCR614 the Supreme Court, while dealing with the amendments made in Section 23 of the Land Acquisition Act, 1894, by Land Acquisition (Madras Amendment) Act (23 of 1961), held as under:

'Under Article 14 of the Constitution of India the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. But this does not preclude the Legislature from making a reasonable classification for the purpose of legislation. The said classification has to pass two tests, namely, (i) the classification must be founded on an intelligible differentia which distinguishes persons and things left out of the group; and (ii) the differentia must have a rational relation to the object to be achieved by the statute in question. On a comparative study of the Land Acquisition Act, 1,894 and the Land Acquisition (Madras Amendment) Act (23 of 1961), it becomes clear that if a land is acquired for a housing scheme under the amending Act, the claimant gets a lesser value than he would get for the same land or a similar land if it is acquired for a public purpose tike hospital under the principal Act. The classification thus sought to be made by the Land Acquisition (Madras Amendment) Act (23 of 1961) between person whose lands are acquired for other public purposes has no reasonable relation to the object sought to be achieved. Discrimination is writ large on the amending Act and it cannot be sustained on the principle of reasonable classification. The Land Acquisition (Madras Amendment) Act (23 of 1961), therefore, clearly infringes Article 14 of the Constitution and is void'.

18. Similarly the Supreme Court, in Balammal v. State of Madras, : [1969]1SCR90 , while referring to the provisions enacted in the Madras City Improvement Trust Act of 1950 which deprived the owners of the statutory right to solatium at the rate of 15 per cent on the market value of the land as the owners of the lands were entitled to the statutory solatium under the Land Acquisition Act in consideration of compulsory acquisition of their lands, held that the provisions of the Madras Act violate the equality clause of the Constitution.

If the Slate should acquire the lands for improvement of the town under the Land Acquisition Act, the acquiring authority was bound to award 15 per cent solatium. But, acquiring the lands under the Madras Act for the Improvement Trust, which also is a public purpose, the owners are deprived of the right to the statutory solatium, a clear case of discrimination which infringes the guarantee of equal protection of the law. The distinction is not supported by any rational classification having reasonable relation to the subject-matter of the special provisions and is not founded on any intelligible differentia. Likewise, the Supreme Court in Nagpur Improvement Trust v. Vithal Rao, AIR 1973 SC 689 while referring to the provisions enacted in Nagpur Improvement Trust Act, which added a new clause to Section 23 of the Land Acquisition Act, under which the owner whose land was acquired under the Improvement Act was to be paid compensation according to the use to which the acquired land was put, and if the land is being used for agricultural purposes, even though it has a potential value as a building site, the potential value has to be ignored, and further, the owner would not get a solatium of 15 per cent which he would have got if the land had been acquired under the Land Acquisition Act, held that the new clause offended Article 14 of the Constitution.

19. In the Amendment Act, which is extracted earlier, it is stated in the preamble portion :

'Whereas it is expedient further to amend the Land Acquisition Act, 1894 Central Act (1 of 1894) in its application to the State of Madras for the purpose hereinafter appearing; It is hereby enacted as follows:'

But, nowhere in the Amendment Act, the purposes have been enumerated. It is, therefore, incomprehensible as to why and for what purpose the amendment has been brought in, reducing the rate of interest from 6 per cent to 4 per cent. Judged in the light of thisit becomes very hard for the Amendment Act to sustain the averment that it is not discriminatory and so is not violative of Article 14 of the Constitution. A citizen owning a piece of land in the State of Andhra Pradesh is entitled to only 4 per cent interest on the amount of compensation awarded towards the land acquired for the purposes of Central Government, whereas if he ownspiece of land, say, in the adjoining State of Orissa, and it is acquired for the purposes of the Central Government, he will be entitled to interest of 6 per cent on the compensation amount.

It is, on the face it, discriminatory in Character, It is very scarce to make out any intelligible differentia, much less such differentia having any rational nexus with the object sought to be achieved. In fact, the object is conspicuous by its absence. Therefore, in our judgment, the discrimination it 'Writ large on the Amendment Act which must be held to be bad. Hence we hold that the Land Acquisition (Madras Amendment) Act, 1953, in so far as it is adopted by the State of Andhra Pradesh by the A. P. Adoptation of Laws Order, 1957, is void.

20. In view of our decision on the discrimination aspect of the amending legislation, it is needless for us to go into the vires aspect of the case.

21. In the result, the review petitions are allowed. No costs.

22. On the oral application made by the learned Government Pleader for the grant of leave to appeal to the Supreme Court, we are inclined to certify that the case involves a substantial question of law of general importance which needs a decision from the Supreme Court. We therefore giant leave to appeal to the Supreme Court of India. The parties may take appropriate steps for printing and for the appeals being heard, together.

23. There shall be interim suspension of our review judgment for a period of four weeks on condition that the Referring Officer -- Government deposits within four weeks from today, the entire enhanced amount of interest as per our judgment and the claimants landholders are permitted to withdraw the same, as and when 10 deposited, without furnishing any security.

24. The Government Pleader expressed his inability to state that it would be impossible or difficult to recover from the landholders in case the Referring Officer, Government finally succeed.


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