Andhra HC (Pre-Telangana)
Vijayawada-Guntur-Tenali Urban ... vs Movva Ranga Rao, Advocate And Ors. on 5 September, 1995
Equivalent citations: 1995(3)ALT718
JUDGMENT Lingaraja Rath, J.
1. This appeal is at the instance of the respondents 2, 3 and 4 of the Writ Petition, at whose instance some land was acquired under the provisions of the Land Acquisition Act. The writ petitioner, respondent No. 1 in the Writ Appeal, was the Counsel appearing for the respondent No. 1 in the Writ Petition, who is the respondent No. 2 in the Writ Appeal i.e., the Special Deputy Collector (Land Acquisition), Vijayawada-Guntur-Tenali Urban Development Authority, Vijayawada, Krishna District. Altogether there were 99 land acquisition cases in all of which the respondent No. 1 had appeared for the respondent No. 2. In passing orders on the reference applications, the Civil Court awarded in the memo of costs of the proceedings Rs. 2,000/- as Advocate fee in each of the cases. It is the admitted case that the decree regarding the fees so fixed has become final. Since the respondent No. 1 failed in his attempts to get the fees, he approached this Court in Writ Petition No. 414 of 1993 which having been allowed, the present Appeal has been preferred.
2. Since during the course of hearing of the appeal objections were taken regarding the respondent No. 1's entitlement to the fee on the ground that he had appeared in the cases as the Assistant Government Pleader and hence was not entitled to fees in the contested scale as a private practitioner, we had directed, in our order of 14-8-1995, the learned Government Pleader for Land Acquisition to file a counter-affidavit specifically stating as to whether the respondent No. 1 had appeared in the cases through memos of appearance or Vakalats and whether at the time of appearance he was the Assistant Government Pleader and, if so, continued as such upto what date. An affidavit has been filed, in pursuance of the order, on 4-9-1995 by the Revenue Secretary averring that the respondent No. 1 had appeared in the cases through Vakalatnamas executed by the Special Deputy Collector, respondent No. 2, and that he had continued as the Assistant Government Pleader from 19-2-1983 till 22-3-1989. In the affidavit it has also been inter alia stated that the deponent to the affidavit, the Revenue Secretary, is not concerned in the case and that it is a matter for the Urban Development Department and that the fees, if any to be paid to the Legal Officer, has to be paid by the Requisitioning Department i.e., Vijayawada-Guntur-Tenali Urban Development Authority, but not by the Revenue Department.
3. In the counter affidavit of the respondent No. 2 (respondent No. 1 in the Writ Petition) filed to the Writ Petition it is stated that when the respondent No. 1 appeared in the reference cases he was the Assistant Government Pleader. Admittedly, the Awards by the Civil Court in the cases were made on 26-2-1991 i.e., nearly two years after the respondent No. 1 had ceased to be the Assistant Government Pleader.
4. The learned Single Judge deciding the Writ Petition came to the conclusion that as the memo of costs prepared by the Civil Court decreed the fee of the respondent No. 1 at Rs. 2,000/- per case, there cannot be any resistance to the payment of fee and issued direction to the respondent No. 2 (respondent No. 1 in the Writ Petition) to pay the amount.
5. Mr. P.M. Gopala Rao, learned Counsel for the appellants submits, in assailing the directions to the respondent No. 2, that the appellants have the right to maintain the appeal in view of the provisions of Section 18of the Andhra Pradesh Urban Areas (Development) Act, 1975 (Act 1 of 1975) in which the condition is stipulated that land acquisition is to be made at the instance of the appellant authority and that the cost of acquisition shall be met by it. It is the submission that as the fees to be paid to the respondent No. 1 is ultimately the responsibility of the appellants, the appeal has been validly presented. The argument advanced seeking dis entitlement of the respondent No. 1 to the fees as decreed is that since he was admittedly the Assistant Government Pleader at the time he appeared in the cases, he could not have appeared through Vakalatnamas and was only to file memos of appearance as is contemplated in the Madras amendment to Order 3 Rule 4(6) of the Code of Civil Procedure applicable to Andhra Pradesh which says that no Government or other pleader appearing on behalf of the Government, or on behalf of any public servant sued in his official capacity, shall be required to present any document empowering him to act, but such pleader shall file a memorandum of appearance signed by himself stating the particulars mentioned in sub-rule (5). It is submitted that the respondent No. 1 could not have taken any benefit of his having appeared through the Vakalats and is entitled only to fees as an Assistant Government Pleader and not otherwise. Reliance is also placed on the Land Acquisition Manual Appendix-Z4 Rule 7, which states that in an application under Section 18 of the Land Acquisition Act the Collector is to furnish full instructions for use of the Government Law Officers concerning the conduct of the case in the Court and that the Government Pleader will invariably appear under the instructions of the District Collector to represent the Government and the District Collector to see that the award of the acquiring officer is properly defended. Mr. P.M. Gopala Rao also invites our attention to the common order passed in the land acquisition cases by the Civil Court in which the respondent No. 1 was described as the Assistant Government Pleader.
6. The acquisition of land is done under the Land Acquisition Act, 1894, for which the Acquiring Officer is the Land Acquisition Officer, who functions under the control of the Collector and the Revenue Department. Even if the acquisition is made at the instance of any other authority, yet such authority is only the beneficiary of the acquisition but the responsibility of acquisition and defending the award made by the Acquisitioning Officer is the responsibility of the Officer himself. It is hence not correct to say, as has been stated in the counter-affidavit filed by the 5th respondent, that he is in no way concerned with the matter and that it is the appellants who have to meet the issues involved. Merely because Section 18 of the Act 1 of 1975 makes the provision that the cost of acquisition shall be met by the Requisitioning Authority, which, as a matter of fact, is also the same for other bodies in favour of whom acquisitions are made, does not mean that the right of the claimant for compensation is not vis-a-vis the Land Acquisition Collector or the Revenue Department and that he has to look, for his claims to be satisfied, to the Requisitioning Authority. The matter of realisation of the cost of acquisition including payment of compensation as also the advocate's fees from the beneficiary of the acquisition is a matter in between the Government and the beneficiary but has no effect on the entitlement of the claimant to claim the amount from the Government.
7. In the present case, the respondent No. 2, though is a Government Officer, was also attached to the appellants and, as is conceded to by the learned Government Pleader and other counsels appearing in the case, was working as the Land Acquisition Officer so far as the land acquisitions were made for the benefit of the appellants. His predecessor was the Sub-Collector, Tenali and the respondent No. 2 was substituted for him during the pendency of the reference cases in the Civil Court and had engaged the respondent No. 1 executing the vakalatnamas. Mr. Y. Suryanarayana, learned senior counsel appearing for respondents has produced a copy of G.O.Ms. No. 249 dated 9-3-1970 of the Revenue Department, Government of Andhra Pradesh regarding conduct of cases before the Court in land acquisition cases. The decision was taken, after examination, by the Government that the Law Officer of the Government and counsel for requisitioning authorities both should not conduct the suits in the Courts when the requisitioning authorities are Government undertakings or statutory boards controlled by the Government. Taking the view, it was directed that whenever the requisitioning authority belongs to those categories Vakalatnamas may be executed in favour of its counsel to appear on behalf of the Government and their officers and that the Government Pleader need not appear in those proceedings. In the face of the G.O. the provisions in the land acquisition manual relied upon by the learned Counsel for the appellants must be taken to have been modified to that extent. The appearance of respondent No. 1 on Vakalatnamas executed by respondent No. 2 only shows compliance with such directions of the G.O.Ms. No. 249 dated 9-3-1970. As the G.O. shows, it was being issued by the Government in consideration of the fact, inter alia, that the requisitioning authority has to defray all the incidental charges connected with the case including payment of fees to Law Officers of the Government and in addition pay the fees to their own counsel if he also attends the Court and conducts the case which means double payment to two counsels in the same case. The peculiar circumstances of the present case show that both respondents 1 and 2 were acting in dual capacities and the fact that respondent No. 1 sent the Vakalatnamas to respondent No. 2 who executed the same in his favour and respondent No. 1 appeared on those Vakalatnamas and his engagement was continued beyond the cessation of his term as the Assistant Government Pleader goes to show that the intention of both respondents 1 and 2 throughout had been that respondent No. 1 was not conducting the case as the Assistant Government Pleader but as a private counsel representing the appellants, and had been engaged as such by respondent No. 2 in his dual capacities with the understanding that respondent No. 1 was the Counsel for the appellants and that his fees would be borne by them. The mere description of respondent No. 1 as the Assistant Government Pleader in the judgment of the civil Court would not deprive respondent No. 1 of his status as counsel for the appellants and engaged as such by respondent No. 2 as the Land Acquisition Collector, nor affect his relationship with the parties as such.
8. Mr. P.M. Gopala Rao, brings to our notice Rule 8-D of Advocates Recruitment as Law Officers Rules, 1967, which states that notwithstanding anything in these rules, a law officer shall, notwithstanding the expiration of his term, continue to hold office and until his successor is appointed and takes charge of his office. The Rule has no bearing in the present context because of the statuts of the respondent No. 1's appearance in the case as seen earlier. Also, even if the respondent No.1 is taken to have appeared as the Assistant Government Pleader in the cases, no difference results. All that Rule 8-D means is that a law officer, despite the fact that his term has ceased, will continue to hold the office and discharge the functions until his successor has been appointed. The necessary corollary is that once the successor in office is appointed, he no longer continues to hold the office of the Law Officer. The Rule has nothing to do with the situation where a particular case is continued to be handled by the erstwhile Law Officer despite of his having ceased to hold the office of the Law Officer. The relationship between Advocates and their clients are matters of contract and the price of the services rendered is a subject matter of the contract. Once the Advocate ceased to hold the office of the Law Officer, the obligation under which he is placed under Law Officer to the Government ceases and thereafter if he continues to handle the brief, he does so as an independent Advocate dealing with the case of a client and the fee to be paid for the services rendered is the subject matter of a fresh contract or agreement. Whether or not there was any fresh stipulation for fee in the matter is not coming forth in the case and no materials have been placed in the case in that regard. But the fact that the Court while passing the award in the reference cases awarded the cost of Rs. 2,000/- per case as Advocate fee in the memo of costs shows that the Court was aware of Advocate fee being liable to be paid in the matter of acquisition. Such determination by the Court was never assailed in any forum. It has to be hence presumed in the circumstances that the Court has fixed the fee consciously in recognition of the fact of the respondent No. 1 being entitled to the amount as the Counsel engaged by Respondent No. 2 on Vakalatnamas and that he was continuing in the case despite having ceased to be the Assistant Government Pelader.
9. The memo of costs forms part of the decree. The respondent No. 1 is unquestionably entitled to claim the fee as decreed. In an earlier decision this Court in K. Srinivasa Rao v. Collector, Srikakulam, . held that in a case where the Court has fixed fees of the Government Pleader in a particular case, the Government is devoid of the discretion to reduce the fees as fixed. It was observed "in this case, admittedly, the Court has already fixed the fee by direction a spearate decree and judgment in each O.P and fixed the fee of Rs. 2,000/- in each O.P. Therefore, once the Court has fixed Rs. 2,000/-, the Government is devoid of power of exercise under Rule 30(1)(i) and read with Rule 36 of the Rules, to reduce the fee to Rs. 2,000/- as consolidated amount". We, hence, find sufficient force in the contentions advanced by the learned Counsel for the respondent No. 1 that he is entitled to fee of Rs. 2,000/- per case.
10. The argument that the respondent No. 1 should have laid an Execution case for realisation of the fee and should not have invoked the extraordinary jurisdiction of this Court also does not impress us. The rule of alternative remedy is not one relating to the jurisdiction of the Court, but is only one of propriety. In the present case, as the amount is already fixed and the person who is to pay is the statutory authority, and there are no questions of fact to be investigated, we find no reason not to entertain the matter and relegate the parties to the dilatory and time consuming process of getting the fees realised through an execution petition. We are rather to observe that it is unbecoming for either the Government or the other public authorities, when they are pitted against the citizens of the Country in respect of their financial claims which are otherwise indefensible, to raise technical pleas to avoid payment and urge the Court to compel the parties to take recourse to prolonged litigations which is a wastage not only in terms of money but also in terms of time, and takes the valuable time of those Courts which can be better utilised for other pressing purposes.
11. In the result, as we do not find any merit in this Appeal, it is dismissed with costs throughout. We would also direct, as long time since elapsed and the respondent No. 1 is claim yet remained unrealised, the Judgment of the learned single Judge to be complied with within two months from the date of communication of the order.