Andhra HC (Pre-Telangana)
K. Pothuraju @ Kalyanam vs Government Of Andhra Pradesh, Revenue ... on 30 April, 1999
Equivalent citations: 1999(3)ALD473, 1999(3)ALT366, 1999 A I H C 3459, (1999) 3 ANDHLD 473 (1999) 3 ANDH LT 366, (1999) 3 ANDH LT 366
Author: Vaman Rao
Bench: Vaman Rao
ORDER Vaman Rao, J.
1. These writ petitions have been filed challenging the order passed by the Court of Senior Civil Judge, Anakapalli in a petition filed under Section 144 of the Civil Procedure Code (for short 'the CPC') with a prayer for declaring the said order as illegal; and a direction or a writ for setting aside the said order. Incidentally, they seek a declaration that Section 144 of the CPC will not be applicable to the proceedings under the Land Acquisition Act and that consequently Revenue Recovery Act is also not applicable.
2. Shorn of irrelevant details stated in the affidavit of the petitioners, the facts germane to this writ petitions may be stated as follows :
(i) The petitioners' lands were acquired by the Government for the purpose of Yeleru Left Main Canal for which purpose the Government had acquired more than 3000 acres of land. Aggrieved by the Award of compensation by the Land Acquisition Officer, the petitioners along with others sought reference under Section 18 of the Land Acquisition Act and accordingly it was referred to the Court of Subordinate Judge (Senior Civil Judge), Anakapalli, Visakha-patnam District for adjudication of market value of the acquired land and the existing structures. The teamed Subordinate Judge enhanced the compensation and the entire amount of enhanced compensation was deposited by the Government on receiving notice of the Execution Petition filed by the petitioners. The Government filed appeals in the High Court against the orders and decrees passed by the Senior Civil Judge, Anakapalli. In the meanwhile, the matter of Land Acquisition for Yeleru Canal assumed the colour of a scam and the matters were entrusted to the C.B.C.I.D. for investigation and the matters are thus under investigation.
(ii) In the meanwhile, the appeals filed against the Awards were heard and the High Court set aside the Awards passed by the Subordinate Judge in OP Nos.26, 86 of 1988; 12 and 9 of 1989. The High Court in the first appeal in AS No.1813 of 1995 arising out of OP No.26 of 1988 passed an order on 20-2-1997 allowing the appeal and setting aside the decree of the learned Subordinate Judge, Anakapalli and the matter was remanded back to the learned Subordinate Judge, Anakapalli with a direction to dispose of the same afresh after permitting both sides to lead evidence in support of their respective cases. The Land Acquisition Officer was also given an opportunity to flic objections to the claim statements of the claimants. The High Court also provided in the said order that the State will be free to withdraw the compensation amount which was deposited in the Court to the credit of OP No.26 of 1988.
(iii) It is staled that in the meanwhile the 2nd respondent filed a petition under Section 144 of the CPC read with Section 151 of the CPC in pursuance of the judgment and decree of the High Court passed in Appeal praying the Court below to direct the claimants to deposit the amount received by them together with interest at 12% per annum from the date of receipt of the amount till the date of realisation together with inferest. These petitions were filed on 16-4-1998 and the date of hearing was fixed on 22-4-98. It is stated that the claimants did not have reasonable and sufficient time and they requested time to engage a Counsel to defend the case. But, the lower Court did not allow the request made by the party and allowed the petition filed by the 2nd respondent herein which is contrary to Order V as well as Chapter VI of the Civil Rules of Practice. It is stated that the Court below erred in not giving an opportunity to the claimants to submit defence and thus they were deprived of an opportunily to plead that Section 144 of the CPC was not applicable to the proceedings in question.
(iv) It is contended that Section 144 of the CPC applies in respect of a decree in a suit and that is not applicable to the Awards passed under the Land Acquisition Act. It is also pleaded that Revenue Recovery Act is also not applicable.
(v) It is contended that the Land Acquisition Act being a special enactment, Section 144 of the CPC is not applicable in respect of Awards passed under the said Act. It is also contended that the Special Enactment provides all the procedures and as such Revenue Recovery Act is also not applicable. It is thus stated that invoking the provisions of Revenue Recovery Act is also illegal. It is also contended that invoking the provisions of Section 144 of the CPC and the provisions of the Revenue Recovery Act violates Articles 14 and 21 read with Article 300-A of the Constitution of India. As the petitioner has no other alternative remedy, he is entitled for relief under Article 226 of the Constitution of India. With these conlentions, the prayers as mentioned above are sought for.
3. Arguments of the learned Counsel for the petitioner and the learned Addl. Advocate General-Sri Prakash Reddy were heard at the admission stage as to the admission of the writ petition.
4. The first contention of the learned Counsel for the petitioner-Sri M. V. Rajaram is that the Land Acquisition Act being a special law, the provisions of the CPC as to restitution under Section 144 of the CPC are not applicable. Section 144 of the CPC is extracted below :
"144. (1) Where and insofar as a decree or an order is varied or reversed in any appeal, revision or other proceedings or is set aside or modified in any suit instituted for the purpose, the Court which passed the decree or order shall, on the application of any party entitled to any benefit by way of restitution or otherwise, cause such restitution to be made as will, so far as may be, place the parties in the position which they would have occupied but for such decree or order or such part thereof as has been varied, reversed, set aside or modified, and, for this purpose, the Court may make any orders, including orders for the refund of costs and for the payment of interest, damages, compensation and mesne profits, which are properly consequential on such variation, reversal, setting aside or modification of the decree or order.
(2) No suit shall be instituted for the purpose of obtaining any restitution or other relief which could be obtained by application under sub-section (1)."
Section 53 of the Land Acquisition Act, which is extracted below, provides that the provisions of the CPC are applicable to the proceedings under the Land Acquisition Act to the extent they are not inconsistent with the provisions of the Land Acquisition Act.
"53. Code of Civil Procedure to Apply to Proceedings Before the Court :--Save insofar as they may be inconsistent with anything contained in this Act, the provisions of the Code of Civil Procedure, 1908 (5 of 1908) shall apply to all proceedings before the Court under this Act."
A cursory look at the above provisions would show that the contention of the learned Counsel for the petitioner can scarcely be countenanced in the face of the specific provision under Seclion 53 of the Land Acquisition Act. Nothing has been pointed out by the learned Counsel for the petitioner to show as to how Section 144 of the CPC is inconsistent with any provision in the Land Acquisition Act. It may be mentioned that provision in Land Acquisition Act. It may be mentioned that provision for restitution embodies the wholesome principle of taw that no party shall suffer an injury on account of acts of the Court. It is one of the first and highest duties of all the Courts to take care that the act of the Court does no injury to any party. In view of this, it has been held that every Court has inherent jurisdiction to make restitution which should be exercised whenever justice of the case demands irrespective of any specific provision in that regard as has been held in AIR 1941 PC 128. But, in this case, in view of Section 53 of the Land Acquisition Act, 1894 (for short 'the Act'), all the provisions of the CPC including Section 144 of CPC are applicable in as much as there is nothing to show that the provision under Section 144 CPC in any way inconsistent with the provisions of the Act.
5. The learned Counsel for the petitioner contends that the Award under the Act cannot be said to be a "decree" as defined in Seclion 2(2) of the CPC and as such no appeal lies against the Award under the provisions of the CPC and for this reason also restitution cannot be claimed under Section 144 of the CPC. It may be pointed out that the relief of restitution under Section 144 of CPC is not restricted to the cases where a "decree" has been reversed or varied. Section 144 of the CPC patently applies to any 'order' which has beeiv reversed or varied which may not be a decree as defined under Section 2(2) of the CPC. It is difficult to appreciate how in this case where the Award of the Land Acquisition Officer has been set aside, Section 144 of the CPC is not applicable for claiming restitution. In this case, even this contention scarcely arises in view of the provision under Section 26 of the Act which is extracted below :
"26. Form of Awards :--(1) Every award under this part shall be in writing signed by the Judge, and shall specify the amount awarded under clause first of subsection (I) of Section 23, and also the amounts (if any) respectively awarded under each of the other clauses of the same sub-section, together with the grounds of awarding each of the said amounts.
(2) Every such award shall be deemed to be a decree and the statement of the grounds of every such award a judgment within the meaning of Section 2, Clause (2), and Section 2, clause (9), respectively, of the Code of Civil Procedure 1908."
Section 26 of the Act contemplates that every Award passed under the Act in respect of the compensation under Section 23(1) of the Act for the land acquired shall be deemed to be a decree and the grounds on which such an Award is passed shall be deemed to be a judgment within the meaning of Section 2(2) and Section 2(9) respectively of the CPC. The contention of the learned Counsel is that the appeal in which the Award has been set aside was not the one filed under the provisions of the CPC and the reversal of an Award under such an appellate order cannot give rise to right of restitution under Section 144 of the CPC. This contention is far fetched. Section 54 of the Act specifically mandates that an appeal from an Award passed under the Act shall lie to the High Court subject to the provisions of the Civil Procedure Code applicable to the appeals from original decrees. Thus, for the purpose of an appeal, an Award passed by the Land Acquisition Officer has been treated on par with the original decree against which an appeal lies under the CPC. The decision of a Division Bench of this High Court relied upon by the learned Counsel for the petitioner in the case of S. Elisha v. World Missionary Evangelism of India and others, 1997 (4) ALD 604 (DB), does not help the petitioners in any way. What has been held in that case is that an order passed by the District Judge (Chief Judge, City Civil Court) under Section ! I of the Societies Registration Act does not satisfy the requirements of a decree and, therefore, no appeal lies against it. In view of specific provisions in Sections 53 and 54 of the Act, this authority is not relevant to this case.
6. The learned Counsel for the petitioners cited another decision of the Supreme Court in the case of Deep Chand v. Land Acquisition Officer, . In this case, the Supreme Court held that a decision on the question whether the objections raised for acquisition on the premise that the property proposed for acquisition is a part only of the house, manufactory or building and whether the owner can ask for acquisition of the whole of the property under Section 49(1) of the Land Acquisition Act is not a "decree" within the meaning of Section 2(2) of the CPC and that appeal does not lie against it under Section 96 of the CPC. This decision has no bearing on in view of position under Section 26 of the Land Acquisition Act. Further, when Section 26(2) of the Land Acquisition Act specifically mandates that an Award passed under Section 23 of the Land Acquisition Act shall be deemed to be a decree, the contention of the learned Counsel for the petitioners cannot be countenanced.
7. Another judgment of the Himachal Pradesh High Court in the case of Khyali Ram v. Mast Ram, , has no relevance to the facts of this case. What has been held in that case is that Section 144 of the CPC does not apply where a decree or an order merely became inexecutable by the decree-holder because of the subsequent developments after passing of the decree. This decision is based on the fact that in that case the decree of the lower court was not reversed or varied which is the basis for application of Section 144 of the CPC.
8. Yet another decision of the Himachal Pradesh High Court in the case of Dhani Devi v. Collector, Land Acquisition, Talwara, , cited by the learned Counsel for the petitioners is inapplicable to this case. It was held in that case that the proceedings on a reference under Section 18 of the Land Acquisition Act do not amount to a suit. Therefore, the provisions of Limitation Act for bringing legal representatives of the deceased claimant in a land acquisition proceedings under Order 22 Rule 3 of the CPC do not apply. As seen from the above discussion, it is pertinent to mention that for application of Section 144 of the CPC., it is not necessary that a decree passed in a suit should have been reversed or varied in an appeal or revision, irrespective of the question whether a reference under Section 18 of the Land Acquisition Act is a 'suit' or not, an Award passed under the Land Acquisition Act is deemed to be a decree under Section 26(2) of the said Act. Thus, restitution under Section 144 of the CPC in respect of an Award which is a 'decree' in view of Section 26(2) of the Land Acquisition Act, which has been reversed in an appeal under Section 54 of the Land Acquisition Act is maintainable irrespective of the question whether the proceedings in a reference under Section 18 of the Land Acquisition Act can be construed as a suit or not. It is, therefore, not necessary to decide in this case whether the proceedings under Section 18 of the Land Acquisition Act are in the nature of a suit or not.
9. Another decision cited on behalf of the petitioners is in the case of S. Sama v. Presidency Talkies (P.) Ltd, MLJ (1996) 1, page 154. The facts in that case have no bearing in the matter before this court. In that case, an order by way of restitution was made in respect of re-delivery of certain reels of film which were delivered under a decree, which was subsequently reversed. When there was a failure to return the reels as per orders by way of restitution, it was found that the films had no canning capacity. In this back-ground, it was held that the producer of the film could not claim the costs of production of the original reels.
10. Yet another decision cited to butress the case of the petitioners in the case of Vijaya Bank, Ongole v. Thottempudi Ramaiah Chowdary, DB. In that case, it was held that restitution under Section 144(1) CPC was not applicable as amounts in question were not deposited in Court but were deposited with the party without any directions from the Court. It was, therefore, held that the party who deposited the amount with other party without intervention of the Court with a condition that it was subject to the result of the suit, can file a suit for recovery of the amount and the petition under Section 144 of the CPC does not lie. This decision is hardly germane to the facts before this Court. Thus, it is apparent that the contention that invocation of Section 144 CPC for restitution Of the compensation amount paid under an Award which has subsequently been reversed suffers from illegality has no substance and deserves to be rejected.
11. The impugned order dated 22-4-1998 has directed the petitioner herein to re-deposit an amount of Rs.9,33,224/- received by the 1st petitioner i.e., Kandregula Pothu Raju @ Kalyanam under a decree, which has been set aside by the High Court and the matter was remanded to the Senior Civil Judge, Anakapalli for fresh enquiry into the Court within a week from the date of the order. The order further mentions that failing which the State Government is at liberty to realise the said amount together with interest from the respondents-claimants (petitioners herein) under the Revenue Recovery Act or any other law for the time being in force. The learned Counsel for the petitioners contends that authorising the Government to take steps under the Revenue Recovery Act is erroneous in law. Section 52 of the A.P. Revenue Recovery Act, 1864 contemplates that all the sums due to the State Government can be recovered under the Revenue Recovery Act. Section 52 of the Revenue Recovery Act is extracted below :
"52. Similar Process in case of other species of Revenue, Advances, Fees, Cesses, etc :--All arrears of revenue other than land revenue due to the State Government, all advances made by the State Government for cultivation or other purposes connected with the revenue, and all fees or other dues payable by any person to or on behalf of the village servants employed in revenue or police duties, and all cesses lawfully imposed upon land and all sums due to the State Government including compensation for any loss or damage sustained by them in consequence of a breach of contract, maybe recovered in the same manner as arrears of land revenue under the provisions of this Act, unless the recovery thereof shall have been or may hereafter be otherwise specially provided for."
This section makes it clear that all sums due to the State Government may be recovered in the same manner as the arrears of land revenue under the provisions of the Revenue Recovery Act unless the mode of recovery thereof has been specifically provided for in the Act. There is no specific provision relating to the mode of recovery of the amounts due to the Government by way of restitution in the case of reversal of a decree. Nothing has been pointed out why the Revenue Recovery Act could not be invoked. It is pertinent to mention here that the validity of Section 52 of the Revenue Recovery Act has not been challenged in this case. Thus, the impugned order does not suffer from any illegality on this count.
12. The learned Counsel for the petitioners contends that sufficient opportunity was not given to the petitioners to contest the restitution petition before the senior civil Judge. The impugned order mentions that the petitioner was present in person when the matter was taken up for hearing. It also mentions that he had not filed any counter. There is nothing to show that the petitioner made any request for time for appointing a lawyer. It is admitted in the affidavit of the petitioners that summons in respect of the petition for restitution was served on him on 18-4-1998 and the date of hearing was fixed for 22-4-1998. The petitioner mentions in his affidavit that he requested time as the bundle was with his advocate and that he wanted to engage an advocate but the Court did not allow the request made by the party. But, the impugned order does not refer to this. At any rate, if the petitioner is aggrieved by the order passed by the Court, it is open to the petitioner to seek such remedy as is available to him under the CPC.
13. In the result, we hold that the impugned order does not suffer from any illegality and, therefore, the writ petitions are dismissed. But, under the circumstances, no costs.