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Sree Mullapudi Venkatarayud, Memorial Medial Trust, Tanuku Vs. Chirapu Varada Raju and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAndhra Pradesh High Court
Decided On
Case NumberLetter Patent Appeal Nos. 53 and 54 of 1971
Judge
Reported inAIR1972AP362
ActsLand Acquisition Act, 1894 - Sections 3(6) 18, and 50(2); Code of Civil Procedure (CPC), 1908 - Sections 151 - Order 1, Rule 10
AppellantSree Mullapudi Venkatarayud, Memorial Medial Trust, Tanuku
RespondentChirapu Varada Raju and anr.
Appellant AdvocateB.V. Subbaiah, Adv.
Respondent AdvocateN. Bapiraju, Adv. and ;Prl. Govt. Pleader
Excerpt:
.....the rights guaranteed to it under section 50(2) of the act? acquisition officer is binding on the local authority or the company as well as the state represented by the collector. in other words it can independently lead evidence, oral and documentary, and also cross-examine the witnesses examined on behalf of the claimants as well as the land acquisition officer in determining the quantum of compensation. the very acquisition being made by the state for and on behalf of the local authority or company concerned, the framers of the act must have deemed it just and proper to empower the state represented by the collector or the land acquisition officer to protect the interests of the local authority or company as well as the 'persons interested' and see that just and proper compensation..........is material for our purpose is section 50 which reads thus:'50., 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 any company, the charges of and incidential 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 section 18.'7. section 53 makes the provisions of the code of civil procedure except those which.....
Judgment:

Kondaiah, J.

1. The appellant-trust for whose purpose and benefit Ac. 5-49 cents of land situate on the outskirts of Tanuku in the District of West Godavari, was acquired by the Land Acquisition Officer, the 2nd respondent herein, seeks to implead itself as a party to A. S. No. 352 of 1970 preferred by the Land Acquisition Officer and A. S. Nos. 411 and 412 of 1970 filed by the two claimants. Chitrapu Varadaraju and Kakarla Ravanamma, on the ground that it is a necessary or proper party. The applications have been dismissed by our learned brother A. D. V. Reddy, J., holding that it is not a necessary party to the appeals. Hence these appeals.

2. Sri B.V. Subbaiah, the learned counsel appearing for the appellant, contended that his client is a necessary, or in any event, a property party to be brought on record in the aforesaid appeals preferred by the respective parties under Sec. 54 of the Land Acquisition Act, 1894 (hereinafter called the Act) as it is very much interested in the result of the appeals, and sought the aid of the provisions of Section 50(2) of the Act and Order 1, Rule 10 and Section 151 of the Civil Procedure Code in support of his plea.

3. Sri. N. Bapiraju, the learned Counsel for the claimants, opposed the claim of the appellant contending inter alia that the appellant is neither a person interested nor a necessary and proper party and this Court has no jurisdiction to implead it as a party to the appeals arising out of the proceedings under the Act.

4. The short question that falls for decision is Whether on the facts and in the circumstances, the appellant-Trust, for whose purpose the land in question has been acquired, is or is not entitled to be brought on record as a party respondent to the appeals preferred to this Court by the Land Acquisition Officer as well as the claimants, for the purpose of enforcing the rights guaranteed to it under Section 50(2) of the Act?.

5. In order to appreciate the scope of the question and the respective contentions of the contesting parties, it is necessary to refer to the intendment and scheme of the Act and the relevant and material provisions thereof. The intendment of the Act, which came into force on March 1, 1894 is to amend the law empowering the Government to acquire land only for a public purpose or for a company and for determining the amount of compensation to be made on account of such acquisition. The expressions 'person interested' 'Court' and 'Company:, which are material for our purpose, have been defined by clauses (b), defines 'person interested' as inclusive of all persons claiming an interest in compensation to be made on account of the acquisition of that 'person shall be deemed to be interested in land if he is interested in an easement affecting the land.' The expression 'Court' wherever used, unless there is some thin repugnant in the subject or context, is defined under Section 3(d) as ' a principal Civil Court of original jurisdiction' unless a special judicial officer to perform the functions of the Court under the Act has been appointed by the appropriate Government. 'Company' is defined under clause (e) of Section 3 as 'a Company registered under the Indian Companies Act, 1882, or under the (English) Companies Act 1862, to 1890, or incorporated by an Act of Parliament of the United Kingdom or by an Indian Law or by Royal Charter or Letters Patent and includes a society registered under the Societies Registration Act, 18960, and a registered society within the meaning of the Co-operative Societies Act, 1912'.

6. The Act is divided into 8 parts. Part II of the Act comprising Section s 4 - 17 deals with acquisition and preliminary investigation. Section 4 requires the appropriate Government to publish a notification in Official Gazette to the effect that the land in any locality is needed or likely to be needed for any public purpose. The persons who are interested in any land sought to be acquired, may make their objections under Section 5-A to the acquisition, of land or any portion of it and such objections shall be heard by the Collector and a report containing his recommendations on the objections submitted to the appropriate Government. The decision of the appropriate Government on the objections shall be final. A declaration under Section 6 that he made to that effect by any officer authorised by the Government and such declaration has to be published in the Official Gazette, Such declaration shall be conclusive evidence of the fact that the land is needed for a public, purpose or for a company. The Collector, under S. 9 has to issue notices to persons interested in the land acquired, stating that the Government intending them to make claims to compensation for their interests in such land. The Collector may enquire into the claims of the persons interested in the land and after due enquiry in the course of which the parties are entitled to adduce evidence, oral and documentary, make an award.

Part III consisting of Sections 18 - 28 deals with the reference to court and procedure for the purpose of determining compensation. Under Section 18, any person interested in the land may request the Collector to refer the matter for the determination of the Court with regard to the measurement of the land, the amount of compensation, the persons to whom it is payable, or the apportionment of the compensation among the persons interested. Thereupon the Collector has to make a statement in writing to the principal Court of Original Jurisdiction furnishing the particulars specified under Clauses (a) to (d) of sub-section (1) for to Section 19, Section 20 requires the Court thereafter to issue notices to the applicant, the persons interested in the objection and the Collector. Section 21 restricts the scope of the enquiry to a consideration of the interests of the persons affected by the objection. Section 23 provides for matters to be considered in determining compensation whereas Section 24 specifies the matters to be neglected in determining compensation. The next section which is material for our purpose is Section 50 which reads thus:

'50., 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 any Company, the charges of and incidential 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 Section 18.'

7. Section 53 makes the provisions of the Code of Civil Procedure except those which are inconsistent with the provisions of the Act, applicable to all proceedings before the Court under the Act. Subject to the provisions of the Code of the Civil Procedure applicable to appeals from original decrees, S. 54 provides for appeals from, the original Court to the High Court and from the High Court to the Supreme Court to the parties aggrieved by the decision of the Court in any proceedings under the Act.

8. We shall advert to the claim of the appellant based on the provisions of sub-section(2) to Section 50 of the Act. A combined reading of the provisions of Section 50(2) and Section 18, 20, 21, 5 and the other material revisions referred to earlier, manifests that the local authority or company for whose purpose and benefit the land has been acquired under the Act, is entitled only to appear and adduce evidence in any proceeding held before the Collector or the Court of original jurisdiction, for the purpose of determining the amount of compensation. The proviso to sub-section (2) to Section 50 makes it abundantly clear that no such local authority or company is empowered to demand a reference under Section 18. Section 18 empowers only the 'persons interested' as defined in Section 3(b) to request the Collector to make a reference to the Court. The Collector, either suo motu or at the request of the local authority or company, is not competent to make a reference under Section 18(1). The award passed by the Collector or the Land. Acquisition Officer is binding on the local authority or the company as well as the State represented by the Collector.

9. The use of the words 'the local authority or Company concerned may appear and adduce evidence' in sub-section (2) to Section 50 connotes that they may or may not appear and adduce evidence. There is no compulsion on the part of the claimant to make the local authority or the company concerned, a party-respondent to the proceedings before the Collector or the proceedings before the Collector or the Court. The Collector also is not compelled to make the local authority or the company appear and adduce evidence in any proceeding. The choice is entirely let to the local authority or the company concerned either to appear and adduce evidence in determining the amount of compensation or not. Where the local authority or company decides to appear and adduce evidence, the Collector or the Court before whom such request is made, must permit it to do so. The Collector or Curt has no jurisdiction to deny the local authority or company from exercising the limited right to appear and adduce evidence for determining the amount of compensation, if it seeks to do so. Such right can be availed of only in respect of any proceeding before the Collector or the Court of original jurisdiction. The right of the local authority or company concerned to be brought on record for the limited purpose of adducing evidence independently must be construed so as to include its right to cross-examine the witnesses produced by the claimant and the Land Acquisition Officer.

If the intention of the Central Legislature were to make the local authority or the company a necessary or proper party, sub-section (2) to Section 50 of the Act would have been worded differently. It is not open for the Court to read something into the section which is not there, except to construe the meaning of the words used therein fairly and reasonably and in the light of the intendment and scheme of the Act. In our judgment, the local authority or company will only be a watching party in a proceeding before the Collector or the Court of original jurisdiction. It can only appear and adduce evidence to determine the quantum of compensation. In other words it can independently lead evidence, oral and documentary, and also cross-examine the witnesses examined on behalf of the claimants as well as the Land Acquisition Officer in determining the quantum of compensation. However, it has no right to argue it the by itself or through a counsel in such proceedings as the right to argue would accrue only to a party entitled to be on record as a necessary or proper party. Further, the right to appeal against a decision of the Collector or the Court of original jurisdiction would accrue only to a party, be it necessary or proper, to such proceeding but not to others.

10. This view of ours gains support from the material provisions of the Act relating to the payment of compensation, interest thereon and the costs of proceedings. The payment of compensation, interest thereon and the costs of any proceeding before the Court, if awarded, shall be made only by the State represented by the Collector to the 'persons interested' within the meaning of clause (b) of Section 3. The claimants are not entitled to proceed against the local authority or company for whose purpose and benefit the land is acquired, either for compensation and interest thereon or for costs awarded in the proceedings. Their right is only to sue the State represented by the Collector and recover the amounts due and payable in respect of the land acquired. It is the Collector or Land acquisition Officer, as the case may be, that is entitled to take possession of the acquired lands from the owners or claimants or persons in possession and occupation of the same and thereafter hand over them to the local authority or company for whose benefit they are acquired. The local authority or company is not competent under the Act to proceed against the claimants otherwise known as the 'person interested' in the land acquired, under any circumstances though under sub-section (1) to Section 50, it is the local authority or company that is ultimately liable and responsible to pay the charges of and incidental to the acquisition of land. However, nowhere under the Act a right is given to such company or local authority to be an affected party, be it necessary or proper, to any proceeding before the Collector or the Court. The scheme of the Act appears to be that the State represented by the Collector would sufficiently safeguard the Collector would sufficiently safeguard the interests of the local authority or company for whom purpose the land is acquired and such company or local authority may seek redress of their grievances, if any, through the Collector. They are not given any independent status of a party empowered to proceed against or liable to be proceeded by the persons interested' in respect of any matter or for any purpose under the Act. The very acquisition being made by the State for and on behalf of the local authority or company concerned, the framers of the Act must have deemed it just and proper to empower the State represented by the Collector or the Land Acquisition Officer to protect the interests of the local authority or company as well as the 'persons interested' and see that just and proper compensation is fixed. The interests of the local authority or the company must be deemed to have been merged with the State represented by the Collector.

11. We may now proceed to examine whether or not the provisions of Order 1, Rule 10 and Section 151 of the Code of Civil Procedure are applicable to the case on hand.

12. As pointed out earlier, the provisions of the Code of Civil Procedure except those which are inconsistent with the provisions f the Act, are applicable under Section 53 to all proceedings before the Curt under the Act. By enacting the special provision, i.e., sub-section (2) to Section 50 of the Act which governs the present case, the general application of Order 1, Rule 10 and Section 151 of the Code of Civil Procedure must be held to have been positively excluded. Hence the provisions of Order 1, Rule 10 read with Section 151 of the Civil Procedure Code are not attracted in this case.

13. That apart, we may notice that even on the application of the provisions of Order 1, Rule 10 civil Procedure Code, it cannot be said that the local authority or company can be called a necessary or proper party. It is well settled that a party may be considered a necessary party only when there is a right to some relief against him in respect of the matter involved in the proceedings and when his presence is necessary to enable the Court to adjudicate effectively and completely upon and settle all the questions involved in the proceeding. Where the presence of a party to a proceeding is necessary for a complete and final adjudicate of all the questions involved therein, although no relief may be claimed against such party, he is a proper party. The dividing line between a necessary party and a proper party, though thin, is still distinct. On a consideration of the several provisions of the Act referred to earlier, we provisions of the Act referred to earlier, we are unable to accede to the submission of Mr. Subbaiah that his client ought to have been joined as a party-respondent in the proceeding before the Court of original jurisdiction to enable the court to make an effective and complete adjudication of all the questions involved therein, or that his presence was necessary for a complete and final decision of the questions involved in such proceedings. Admittedly no relief is sought by the claimants otherwise known as 'persons interested' in the O.P. before the Court of original jurisdiction as a result of the reference made at the instance of the claimants by the Collector under Section 18 of the Act. The proceeding to determine the compensation before the Court of original jurisdiction can be finally decided without the presence of the appellant herein. The presence of the appellant was not necessary for the final decision of all the questions effectively and completely in the reference proceeding. Hence, the appellant, in our considered opinion, is not necessary or proper party to the proceedings before the Court of original jurisdiction or the Collector and it is only entitled by virtue of the provisions of sub-section (2) to Section 50 of the Act to appear and adducer evidence for the purpose of determining the quantum of compensation.

14. We find support for our view from the decided cases of several High Courts which was shall presently refer to, although there is no case of our High Court. The earliest decision is that of a Division Bench of the Calcutta High Court in the Municipal Corpn., of Pabna v. Jogendra Narain Rajkut, (1909) 13 Cal WN 116. Therein, it was held that the Municipal Corporation, for whose benefit the land in that case was acquired by the Collector, was not a necessary party in a land acquisition proceeding except to appear simply for the purpose of watching the proceedings or assisting the Secretary of State. It was further held that the Corporation or company had no power to request the Collector to make a reference under Section 18 of the Act, nor had it the right to appeal against a decree made upon a reference.

15. The above view of the Calcutta High Court has been followed by the Rangoon High Court in Mandalay Municipal Committee v. Maung It, AIR 1929 Rang 115 and the Bombay High Court in In re Jerbai Framit Meht, : AIR1950Bom243 and Nagpur Corporation v. Narendrakumar, : AIR1959Bom297 and also the Gujarat High Court in Gautamlal v. Land Acquisition Officer, : AIR1970Guj81 . In : AIR1970Guj81 , it was held by a Division Bench of the Gujarat High Court that the local authority or company, for whose purpose and benefit a land has been acquired under the Act, cannot take advantage of the provisions of Order. 1, Rule 10 of the Civil Procedure Code and the fact that it was directed to appear and adduce evidence under Section 52 of the Act doers not make it competent to be called a necessary or proper party in any proceeding under the Act. It was held that the right to a local authority or company to 'appear and adduce evidence' has been specified provided under sub-section (2) to Section 50 and in no case, it can be joined or added as a party defendant on the ground that it is a necessary or proper party.

16. In Himalayan tile and Marble v. Francis, : AIR1971Bom341 a division Bench of the Bombay High Court, reiterating its earlier view stated in the case of : AIR1959Bom297 , held that the company, for whose purpose and benefit the acquisition under the Act has been made, is not competent to challenge the award under Article 226 of the Constitution of India as it was neither a necessary nor a proper party to the proceedings resulting in the award which was sought to be quashed. Therein the learned Judge Kotval, C. J., whose spoke for the Court, has reviewed the entire case law on the subject, and agreeing with the decision of the Gujarat High Court in : AIR1970Guj81 , proceeded to observe as follows:

'...............,.We think that we would be doing violence to the provisions of the Land Acquisition Act if we were to permit the self-same party to challenge an award, in the proceedings under Article 226 of the to challenging the acquisition proceedings and the award, for though no doubt these proceedings taken under our constitutional powers are independent proceedings, nonetheless it is an accepted principle that such proceedings must be determined in accordance with the law and especially so in the case where there is a special Act making special provisions upon a special subject such as land acquisition.'

The view taken consistently by the High Courts of Calcutta, Gujarat and Bombay is also followed by a Division Bench of the Orissa High Court in State v. Amarendra Pratap. : AIR1967Ori180 wherein it was held that the company, for whose benefit the acquisition is made, was not included in any 'person interested' define under Section 3(b) and it was not a necessary party to the proceedings under the Act except that it has a right to appear and adduce evidence for determining the amount of compensation. The contention of the company that without a notice of reference being given to it, the right to appear and adduce evidence would become illusory, was rejected. It was observed that the interest of the company have amply been safeguard by the presence of the State which is competent to acquire the land for its benefits and give it the necessary intimation regarding the pendency of the proceedings under Section 18 for adducing evidence, it any, and where the Court's judgment inadvertently mentions the company's name in cause title, it must be ignored. The same view has been reiterated by another Division Bench of the Orissa High Court in Orissa Cement Ltd. v. State of Orissa, ILR 1968 Cut 536.

17. In C. R. P. No. 1235 of 1954 D/- 24-9-1954 = 1954 Mad WN (J) 128. the learned Judge, Rajamannar, C. J., held that the local authority or company cannot be permitted to take part in the arguments 9n the petition under Section 18 of the Act as Section 50(2) provides only for the appearance and adducing of evidence by such authority or company for the purpose of determination of the amount of compensation.

18. we must therefore reject the principal plea of the appellant as devoid of any merit.'

19. It was next contended by Mr. B. V. Subbaiah that the appeal is only a continuation of the original proceeding and the present application may be treated as an application under Section 50(2) of the Act and his client be permitted to appear and adduce evidence for the purpose of determining the quantum of compensation. In support of this submission the decisions of the Supreme Court in Garikapati Veerayya v. N. Subbaiah Choudhary, : [1957]1SCR488 and the State of Kerala v. K. M. C. Abdulla & Co., : [1965]1SCR601 and those of this Court in D. Pullayya v. A. Nagabhushanam, AIR 1962 Andh Pra 140 (FB) and C. Subbarayudu v. E. Brahamanandan, : AIR1970AP211 are cited. This contention of the appellants must be rejected for reasons more than one. Firstly the appellant did not avail of its right to appear and adduce evidence either before the Collector or the Court of original jurisdiction. Having failed to do so, it cannot be permitted now in the appeals to adduce evidence in that regard. Secondly the present applications are not filed under S. 50(2) of the Act but only under O. 1, R. 10 and S. 151 of the Code of Civil Procedure. Those applications have been dismissed by the learned Single Judge against whose order the present appeals have been preferred. We cannot at this stage permit the appellant to convert those applications already disposed of by the leaned Single Judge, into applications under Section 50(2) of the Act.

In any event, we are unable to agree with the appellant's plea even on merits which we shall presently discuss. In : [1957]1SCR488 , it was held that 'the Legal pursuit of a remedy suit, appeal and second appeal are really but steps in a series of proceedings all connected by an intrinsic unity and are to be regarded as one legal proceeding.' The learned Judge, Subba Rao, J., (as he then was), who spoke for the majority of the Court, in : [1965]1SCR601 has ruled that 'an appeal is a continuation of the proceedings, in perfect the entire proceedings are before the appellate authority and it has powers to review the evidence subject to the statutory limitations prescribed.' However in the instant case, the aforesaid general principles are, in our judgment, not applicable as Section 50(2) of the Act specifically provides for the limited right of appearance and adducing evidence in any proceeding before the Collector or the Court. The expression 'Court' as defined under clause (d) of Section 3 means 'a principal Civil Court of Original Jurisdiction '. The word 'court' used in Section 50(2) must be construed t be the principal Civil Court of original jurisdiction unless there is something repugnant in the subject or context in which if has been used. Section 50(2) refers to any proceeding held before a collector or Court. The Act is a special enactment which a provides for a special procedure. The very intendment of Section 50(2) is to permit the local authority or company to appear and adduce evidence for the purpose of determining the amount of compensation. Normally it is the original Court of jurisdiction that receives evidence for determining the compensation. In the context in which the word 'court' is used in sub-section (2) to Section 50, it cannot be said that the same has been used in a generic sense so as to take in 'the court of appeal.' Normally the court of appeal will decide the appeals on the record already available by hearing the arguments of the respective counsel. Judged from any angle, we are of the considered view that the expression 'court' in sub-section (2) to Section 50 has been used only in a limited sense so as to take in only the principal civil Court of original jurisdiction but notion a generic sense so as to include the appellate Curt.

There remain the two decisions of our High Court on which strong reliance has been placed by the appellant. In the case of AIR 1962 Andh Pra 140 (FB) , it was held that a person would be adversely affected by the decision of the appellate court, although he was not a party to the proceedings under Order 1, Rule 8 of the Code of Civil Procedure, was entitled for the grant of leave to appeal to the Supreme Court. That case has no relevancy to the case on hand and it is, therefore, distinguishable from the facts of the present case. In : AIR1970AP211 , the alienee of one of the suit properties from a party urging the pendency of the suit, was held to be a necessary and proper party under Order 1, Rule 10 read with Sec. 151 and Section 107 (2) of the code of Civil Procedure. Therein the alienee was undoubtedly interested in the result of the appeal in so far as the item purchased by him was concerned. The omission on the part of such alienee who sought to be impleaded as a respondent to take steps for being impleaded in the suit was held to be not a bar for his being impleaded in the appeal. He could not have preferred an appeal as his settlor had succeeded in the original suit for partition filed by the appellant against his brother, his mother and two alienees. hence that case also does not advance the plea of the appellant, as the principle decided therein, has no application to the present case.

20. Judged from any enable, we are satisfied that the appeals merit dismissal as the appellant-trust herein is not a necessary party to the main appeals as no relief is sought by any of the appellant therein against the trust. Nor the appellant-trust is a proper party either, as it cannot be said without it there can be no effective and complete adjudication of the rights of the parties in the main appeals. However, it is always open to the appellant herein to assist the Government Pleader and furnish all the material available to it to the State representative and see that its grievance, if any, is redressed by following such procedure as is permissible under law. For all the reasons stated, our answer to the question is in the negative and against the appellant herein.

21. In the circumstances, the appeals fail and are dismissed but without costs.

22. Appeals dismissed.


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