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TMI Blog1975 (11) TMI 177X X X X Extracts X X X X X X X X Extracts X X X X ..... sildar, who is the Land Acquisition Officer, did not prefer any appeal, but the Andhra Pradesh Agricultural University (hereinafter referred to as the University) sought to file an appeal against the order of the learned Second Additional Chief Judge. Since it was not party to the reference to the lower court, it applied for leave of this court to file the appeal. An ex parte leave was granted by this court and consequently the appeal came to be numbered as C.C.C.A. 19/72. The land acquisition officer was impleaded as 2nd respondent to the appeal. On 13/09/1974, C.M.P. No. 8830 of 1974 was filed by the 2nd respondent for transposing him as the 2nd appellant in the appeal. (2.) When the appeal with the petition for transposition came up for hearing before Madhava Reddy J., and Jayachandra Reddy, J., the learned Judges referred the entire appeal for consideration by a Full Bench. While doing so they pointed out that the primary question to be considered would be 'whether the Andhra Pradesh Agricultural University for whose benefit the land in question is acquired is entitled to prefer an appeal and if it cannot prefer an appeal as of right, whether leave could and ought to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unsel for the University did not challenge, and correctly so in our opinion, the right of the 1st respondent to question the correctness of the ex parte leave granted to the University. What was granted was only ex parte leave without notice to the affected person viz., the 1st respondent and so it should be open to the 1st respondent, when she entered her appearance, to question the correctness of the leave that had been granted t the University to file the appeal. But for the appeal, the decision of the court below became final and that is sought to be re-opened by the order made ex parte in her absence. In law and justice therefore, the 1st respondent (claimant) is certainly entitled to challenge, at the time of the final decision of the appeal, the correctness of the ex parte leave granted to the University. (6.) In the light of what was conceded before us and what has been stated above, the question whether the University is entitled to prefer an appeal as a matter of right does not arise for consideration. The first part of the primary question indicated by the Division Bench which has referred the appeal to a Full Bench, has to be answered that the University for whose be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to prefer an appeal and further enables the Courts to grant such leave in appropriate cases. What is of the essence, according to the University's point of view, is to see whether the applicant for leave is aggrieved and adversely affected by the decision of the Court below. If this requirement is satisfied, then leave is automatically granted. (9.) We will first test the validity of the rival contentions with reference to the provisions of the Act. After all, that is the enactment under which the rights of the parties are affected or created. The preamble shows that the status was made for the acquisition of land for public purposes and also for companies and for determining the amount of compensation to be given on such acquisition. Clause (b) of Section 3 gives an inclusive definition of the expression 'person interested' as all persons claiming an interest in compensation. If a person is interested in an easement affecting the land, he is also deemed to be interested in land. Any person, be it the Government or a Company, who is liable to pay compensation does not come within the purview of this definition. The statute clearly states only those persons who claim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... person for whose benefit the land has been acquired cannot, therefore, seek any reference to court under Section 18. In making the reference, the Collector is required under Section 19 to send a statement for the information of the Court on the four aspects that are mentioned therein. Section 20 provides for notice of the reference only to three categories of persons viz., the applicants, all persons interested in the objection excepting such of those who have already consented without protest to receive payment of the compensation awarded, and the Collector also if his objection is in regard to the area of the land or to the amount of compensation. Section 21 restricts the scope of the enquiry in these proceedings to a consideration of the interests of the persons affected by the objections. Under Section 28 the Collector may be directed to pay interest on excess compensation. It is the Collector who shall tender payment of the compensation awarded to the persons interested entitled thereto according to the award. Section 16 clearly lays down that after making an award, the Collector may take possession of the land which shall thereupon vest absolutely in the Government free from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yment to it of the cost of the acquisition for transfer of the land on payment of the amount, and the terms on which the land could be held by the Company. We have already noted that the land vests absolutely in the Government on the making of an award and after taking possession. It is seen from Section 41 that the company for whose benefit the land has been acquired, gets the transfer of the land from the Government on a payment to it the cost of the acquisition. Even then, it can hold the land only on such terms as are agreed upon under the agreement. It is thus clear that the Company's claim to the land arises only after the entire acquisition proceedings are over. That is to say, it arises only after the lis, if any between the owner of the land and the Government has been completed and the acquisition has become final. On receiving an amount, which is the cost of acquisition, the Government, which has become the absolute owner of the land, transfers it to the company. A second transfer from the Government to the company is made in which the original owner of the land has nothing to do. The rights of the Company arise only after the entire acquisition has been completed. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the company's participation and an embargo on its right to seek a reference under Section 18 the conclusion is inescapable that the local authority or Company is not a party to the acquisition proceeding and has no locus standi therein excepting to adduce evidence. When it is not only not a party to the acquisition proceeding but also it is specifically limited to leading evidence in regard to the quantum of compensation alone, it must necessarily follow that it cannot presume to prefer an appeal against the decision of the Court. (13.) The scheme of the Act which emerges from the above consideration of the relevant provisions, is that when an acquisition of land is made either for a public purpose undertaken by the Government or for the benefit of a local authority or company or any other person, the proceeding is only between the owner of the land and the Government. Even when the acquisition is made not for the Government but for somebody else the Government alone is entitled to act and acquire the land. The owner of the land can look up to the Government only for payment of compensation. He has no right or claim against the person for whose benefit the land is being acqu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 53 that the provisions of Civil Procedure Code are applicable only to the extent that they are not inconsistent with anything contained in the Act. To the extent of the inconsistency, the provisions of the Code of Civil Procedure do not apply to the land acquisition proceedings before the court. (15.) Therefore , even if there is anything in the Civil Procedure Code which enables a person to prefer an appeal with leave of the Court though not a party to the proceedings in the court below, that is not applicable to the person for whose benefit the land has been acquired to prefer an appeal with leave of the appellate court against the award, because, that right is foreclosed under the provisions of the Act. The Act treats such a person as a stranger to the acquisition proceedings with whom the claimant of the land has no concern and has no right in the entire proceedings until the acquisition has been completed. (16.) Even such a situation does not arise because the Code of Civil Procedure does not contain any provisions specifying or indicating as to who is entitled to appeal or who may seek leave f the court to appeal. Only Sections 4, 96, 97 and 146 and Order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roceedings before the lower court, with leave to the court. (17.) What emerges from the above consideration is that the person for whose benefit land has been acquired, the University in this case, could not be a party to the reference even if it applied to be added as one. This is clearly prohibited by the provisions of the Act. A person, who could not be made a party to a proceeding in the lower court, could not, by any stretch of imagination, be made a party in the appeal against that decision, much less an appellant. The person for whose benefit land has been acquired is a person excluded from the reference proceedings before Court and it would be preposterous in principle and in law to say that he could prefer an appeal with leave of the Court. It should be remembered that an appeal is only a continuation of the proceeding in the court below and a person who had no place in the proceeding before the court, could not presume to prefer an appeal and the court cannot grant him leave. Further an appeal against the award given by the court on a reference under Section 18 is appealable to the High Court under section 54 of the Act and not under section 96 C.P.C. Only the provisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Acquisition Act and therefore the Civil Court cannot add such parties to the land acquisition proceedings before it. Since at that time Burma was part of India, we may also refer to a decision of the Rangoon High Court in Mandalay Municipal Committee v. Maung, AIR 1929 Rang 115 a Division Bench of that court understood the expansion 'person interested' as a person interested by reason of his interest in the land acquired as owner, tenant and the like and not a person interested as acquiring the land through the Secretary of State. Such a person is not entitled to separate notice under Section 20 though he has the right to appear and adduce evidence. Rajamannar C.J. held in C.R.P. No. 1235/54 24-9-1954 = 1954 Mad WN (SN) 128 the Section 50 (2) of the Land Acquisition Act provides that the authority or company for whose benefit the acquisition was made may appear and adduce evidence for one particular purpose viz., the purpose of determining the amount of compensation and the authority or company cannot be permitted to take part in the arguments on the petition. Subba Rao C.J. and Bhimasankaram J., in Gopalacharyulu v. Rudra Veeranna, AIR 1955 Andhra 142 held that the inh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tent of observing that where the court's judgment inadvertently mentioned the company's name in the cause title, it must be held that it must be ignored. (19.) A local authority for whose benefit land has been acquired invoked to its aid Order 1, Rule 10 C.P.C. before the Gujarat High Court. A Division Bench of the High Court repelled this claim in Gautamlal v. Land Acquisition Officer, AIR 1970 Guj 81 by holding that in view of the specific provision under Section 50 (2) of the Act for advantage of local authority having right to adduce evidence before court, it cannot invoke the provisions of Order 1, Rule 10, C.P.C. to its aid. It was also laid down that by reason of its being directed to appear and adduce evidence, the local authority does not become necessary or even proper party in the proceeding under the Act. A necessary or a proper party is one against whom there is any relief claimed or that his presence is so essential to enable the Court to effectively decide any such claim. No such right is conferred on the company or local authority, under the Act. That right is given to the Government through its representative, the Collector, and to no other. (20.) A D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... overwhelming support to the view we have taken. (21.) However , two decisions are cited saying that they have taken a contrary view. When a society for whom land had been acquired sought to be added as a party in a writ petition in which the validity of the acquisition proceedings was challenged, a Division Bench of the Allahabad High Court, in K.B. Co-operative Housing Society v. Satya Devi, AIR 1971 All 426 held that the society was interested in the acquisition of the land and as such was a proper party within the meaning of Order 1, Rule 10, C.P.C. In H.S. Industries v. State, AIR 1972 Punj Har 59, a learned single Judge of the Punjab and Haryana High Court also took the view that a person, who had to pay the compensation, can be impleaded as a party under Order 1, Rule 10, C.P.C. in a proceeding before Court under Section 18. With respect to the learned Judges we cannot accept this view. In our considered opinion, this is repugnant to the scheme and principle of the Act besides being opposed to decisions of this and several other High Courts. So, we cannot place any reliance on these two decisions. It is, therefore, clear that the person for whose benefit land has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have been made a party. Those are the basic statements of the practice that obtains in England and it is this practice that has been followed in India as well. Before we refer to judicial pronouncements, we would like to emphasis the qualification contained in the above three statements of the practice that a person who might have been properly made a party, may obtain leave to appeal, and that leave to appeal will not be given to a person not a party unless his interest is such that he might have been made a party. This is a very crucial condition to be satisfied before leave is granted to a person who had not been a party to the proceeding before the lower court. (25.) Of the English cases, reference to In Re Securities Insurance Company's case (1894) 2 Ch 410 would be sufficient, as learned counsel for the University placed very strong reliance on passages in it. Before we refer to the observations in the judgment, it is necessary to notice the facts of the case. A Judge made an order sanctioning an arrangement under the Joint Stock Companies Arrangement Act. Some creditors, who did not oppose the scheme at the meeting of creditors nor appeared before the Judge whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inion. We may usefully quote the paragraph which immediately succeeds the one which was relied on by the learned counsel. It is in the following terms and occurs at page 413 itself : In this particular class of cases, it appears to me that that practice ought not to be lightly departed from. It would be in the highest degree inconvenient if, after a Judge had sanctioned a scheme, persons who did not take the trouble to attend the proceedings could without leave embarrass the proceedings by giving notices of appeal within three weeks. It would be a course which many people would be very glad to adopt, and we are not disposed to facilitate such conduct. I think the rule under the old Chancery practice is perfectly well settled; and even in the winding-up of the companies with which I was once familiar, I do not recollect a case of a person who alleged himself to be aggrieved appealing without leave, unless he had in some way or other made himself a party to the proceedings. Kay L.J. in his opinion agreeing with Lindley, L.J. says this at page 414 : These persons which now want to appeal had the opportunity of being present at those meetings. They were there, we are told, eith ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l may in its discretion allow him to prefer an appeal. Bhagwati, J., in his separate judgment observed at page 149 : There is no right of appeal vested in him by any of the provisions of the Civil Procedure Code or by any other provision of law. The only remedy open to him, if his interests are adversely affected or if he is aggrieved by a decision of the court, is to approach the appellate court and ask for leave to appeal which the appellate court would grant in proper cases. Then the learned Judge referred to the observation of Lindley L.J. in In re Securities Insurance Company's case (1894) 2 Ch 410. Finally the learned Judge held : The Province of Bombay had not obtained any such leave to appeal and had filed the appeal as if in exercise of a right to do so. This position was certainly not tenable and under the circumstances of the case we thought it proper to give the Province of Bombay leave to appeal but on terms that the Province of Bombay do pay all the costs up to the time when the leave to appeal was granted by us. Once again these observations will have to be understood in the light of the facts. The Province of Bombay, as the authority which had referr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. This understanding of the decision is unwarranted if the facts of the case and the reasoning of the learned Chief Justice are noticed. It is not necessary to give details of the facts. But it is sufficient to notice the clear circumstances that the appellant was a person who could have been added as a party to the proceeding in the lower court. In fact it was observed in paragraph 8 that the appellant was vitally interested in the subject-matter and felt aggrieved by the order passed in the writ petition. While dealing with the preliminary objection as to the maintainability of the appeal by a person, who was not actually a party, the English practice and the decision of the Bombay High Court in Bombay Province v. W.I. Automobile Association (supra) and thereafter the following meaningful passage occurs at p. 489 :-- Several instances are referred to in the foot-note and the limits of the rule can be gathered from these instances. Leave will not be given where the applicant could not have been a party and the application for leave must be made within the time limited for the appeal. The reason for the practice apparently is the principle that a person, who could have been ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Full Bench stated this at page 145 : What emerges from the above discussion is that if a person is deemed to be a party under Order 1, Rule 8, C.P.C. and for purposes of Section 11 Explanation VI C.P.C. leave to appeal could be granted to him by the appellate court in an appropriate case if the decision rendered in those proceedings would adversely affect him. Proceeding, the learned Chief Justice observed : It is needless to say that it would be illogical to hold that while a person is deemed to be a party to the proceeding and would be bound by the judgment rendered against him in the representative capacity be would not be permitted to file an appeal against the decree if the person who is actually a party to the proceedings does not choose to carry the matter in appeal against that decree or order. (31.) The petitioners before the Full Bench were thus deemed to be parties to the proceeding in the lower court, as they were represented by the defendants on record by virtue of the leave granted under Order 1, Rule 8. C.P.C. (32.) Another Full Bench of this Court in Radha Bai v. B. Chinnayya, AIR 1968 Andh Pra 353 (FB) followed the above decision. Posing the question ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he limitation due to a bona fide miscalculation of the period of limitation by the counsel for the University. The High Court refused to condone the delay on the ground that there was no explanation from the State Government which had primarily the right to file the appeal. The Supreme Court, while condoning the delay held that the party, which was essentially interested in filing the appeal, was the Punjabi University and the Punjab Government was only fighting the case for the University. This case is not an authority for the proposition that the University could maintain an appeal since the question did not arise before the Supreme Court. What all the Supreme Court was called upon to decide was whether there was satisfactory explanation for the delay in preferring the appeal before the High Court. So, it is only a decision on the question of limitation. Further, the fact remains that in the appeal not merely the University but the Government itself was an appellant. So, the existence of the Punjabi University as an appellant was incidental and inconsequential. Lastly, there is the recent case of the Supreme Court in State of Punjab v. Amar Singh, AIR 1974 SC 994 Krishna Iyer, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es and not a necessary requirement, then it would lead to the preposterous result that any person, who might have been made eo nomine party in the Court below, could seek leave to appeal even though any one of the three features does not exist. Leave will then have to be granted even if such a person is not bound by the order or is aggrieved or prejudicially affected by it. It is well known that even a regular party to a proceeding cannot prefer an appeal unless he is bound by the order of the lower court or is aggrieved or prejudicially affected by it. So, what the learned Judge has opined is that a person, who might have been made eo nomine parry, is granted leave to prefer an appeal as a rule, if he is either bound by the order of the lower court or is aggrieved or prejudiced by it. (35.) Now , in the light of what we have said above, we will consider the rulings of this Court which have been the reason for reference of this matter to a Full Bench. The first of them is that of Chinnappa Reddy J., sitting singly in A.P. Agricultural University v. B. Gangamma, AIR 1974 Andh Pra 299. The same University was the appellant in the appeal before the learned Judge, complaining agains ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Raghuvir, JJ., were inclined to take the opposite opinion in C.C.C.A. 113/71 etc., though eventually the learned Judges did not take a different view from the one expression by the Division Bench in A.P. Agricultural University v. Dan Reddy (supra) and in fact followed it. That was also an appeal preferred by the University against the quantum of compensation. It was pointed out that there appeared to be considerable force in the contention of the learned counsel for the University that it was bound by the judgment of the court below in the sense that the party which had to ultimately bear the cost of acquisition. Even otherwise, the University was aggrieved or prejudicially affected by the decisions of the lower court. After making a brief reference to Sections 38, 4, 5-A, 40 and 50 in the Act, the Division Bench stated that all these statutory provisions indicated that the company for whose benefit the land was acquired was vitally interested both in the acquisition of the land and also with regard to the quantum of compensation payable for the land so acquired. The fact that the company could not seek a reference under Section 18 did not seem to preclude the company from oppos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... visions of the Land Acquisition Act , we are inclined to agree with the opinion expressed by the Bench in C.C.C.A. 113/71 and batch but inasmuch as that Bench ultimately agreed with the previous Bench, we have thought it necessary to record a few reasons for referring this matter for consideration of a Full Bench. This view does not accord with the opinion we have stated above. We, therefore, hold that the law as stated in Dan Reddy case (supra) is the correct one, in so far as granting of leave to prefer an appeal to the appellate court by a person for whose benefit the land has been acquired is concerned. (39.) In our considered opinion, the University has no locus standi, as a party to the land acquisition proceeding and even if it applied to be added as a party such addition is not permissible under the Act. Since it cannot be deemed to be a party to the proceeding, it cannot presume to seek leave of the High Court to prefer an appeal and the High Court cannot grant it. Consequently, our answer to the primary question posed by the Division Bench, while referring the matter to a Full Bench, is in the negative. The result of this conclusion is that the ex parte leave gra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s directly interested in the subject-matter of the appeal. The Court granted leave to the University to prefer the appeal. In paragraph 3 of the affidavit, the petitioner specifically referred to the decision of Chinnappa Reddy, J., dated 24-701973 that the University could not maintain the appeal and to the Letters Patent Appeal preferred against that decision, which was admitted on 3-9-1973. It is indeed curious that despite this decision, the 2nd respondent did not file the present petition earlier for his transposition. This itself shows that the petitioner did not evince any interest in preferring this appeal even at that stage. (43.) But more startling is the statement contained in paragraph 5 of the affidavit. We may quote the relevant part of it verbatim : I submit that I was already made a respondent in the appeal preferred in the Agricultural University, I would have myself filed the appeal but for the fact that the University referred the appeal on the basis of the G.O. issued by the Government permitting the institutions, for whose benefit the lands were acquired to prefer the appeals. In these circumstances I pray that I may be permitted to contest the claim of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the Government permitted the institutions, for whose benefit the lands were acquired, to prefer appeals. To say it mildly this is a very inaccurate statement. This clearly shows that the petitioner has not even taken care to understand what the G.O. meant. This clearly indicates gross negligence on his part. Had he shown reasonable are or even minimum diligence he should have preferred the appeal originally or in any event would have filed the present application immediately after 24-7-1973 when Chinnappa Reddy, J., held that the University could not maintain the appeal, if the petitioner really wanted to do so. Filing this petition 13 months after the above decision is only an afterthought and is in any case vitiated by gross negligence. We are not, therefore, inclined to grant this petition for transposition in this case. (45.) Since this is sufficient to dismiss the petition, we are not expressing any opinion on any other question relating to transposition as it is wholly unnecessary in the context of the present case. (46.) SInce we have held that the appeal is not maintainable and the petition for transposition cannot be granted, it is not necessary to go into the qu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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