Andhra HC (Pre-Telangana)
Sri Sri Sri Jagannatha Swamy Varu, Rep. ... vs Vana Venugopalanaidu And Ors. on 3 July, 1995
Equivalent citations: 1996(2)ALT561, 1996 A I H C 1397, (1996) 1 LS 11, (1996) 2 RENTLR 357, (1997) 3 LANDLR 310, (1996) 3 ICC 899, (1996) 2 ANDH LT 561
ORDER S. Parvatha Rao, J.
1. The two Civil Miscellaneous Appeals have been preferred against the order of the learned Subordinate Judge, Rajam dated 26-12-1990 in I.A.No. 56 of 1990 in L.A.O.P.No. 39 of 1990 - C.M.A.No. 562 of 1991 by the deity Sri Sri Sri Jagannadha Swamy varu at Palakonda, represented by its Executive Officer, the first respondent/claimant in the said I. A.; and C.M.A.No. 818 of 1991 by the petitioners/claimants in the said LA. The parties will be referred to hereinafter as they were arrayed in the said LA.
2. The petitioners in the said I.A. were tenants in respect of Hecs. 8.83 of wet land belonging to the deity i.e., 1st respondent in the I.A. In the acquisition proceedings in respect of the said land, they claim that they are entitled to a share in the compensation as statutory tenants in respect of the land acquired. On their claim under Section 30 of the Land Acquisition Act, 1894 ('the Act' for short), the Land Acquisition Officer referred the dispute to the decision of the Court and on that reference the matter was taken up by the learned Subordinate Judge at Rajam and numbered as L.A.O.P.No. 39 of 1990. The petitioners filed I.A.No. 56 of 1990 under Order XXIX Rule 1 and under Sections 84(c) and 151 of the Code of Civil Procedure praying for temporary injunction pending the said L.A.O.P. restraining the first-respondent-deity from further executing proceedings including the withdrawal of the amount deposited towards the execution amount by the second respondent i.e., the State of Andhra Pradesh. After elaborately considering their claim, the learned Subordinate Judge was inclined to hold that the petitioners established, prima facie, that they were statutory tenants in respect of the acquired land as on the date of acquisition, that is, Section 4 notification. However, in view of certain observations in the judgment dated 6-8-1985 in Writ Petition No. 2778 of 1981 preferred by the petitioners before this Court, he was not inclined to straight-away order an injunction.
3. Writ Petition No. 2778 of 1981 was preferred by the petitioners themselves against the Collector, Srikakulam etc., for a writ of Certiorari or any other writ etc., for quashing the notification under Section 4(1) of the Act published in the Srikakulam District Gazette dated 18-2-1981 for acquisition of the said land of an extent of 8-83 hectares of Vadam village which is the subject matter of that L.A.O.P.No. 39 of 1990. That land belongs to the deity Sri Sri Sri Jagannadha Swamy Varu at Palakonda, the first respondent. While dismissing that writ petition, Upendralal Waghray, J in his judgment dated 6-8-1985 observed as follows:
"The petitioners had occupied these as tenants under a registered Lease Deed granted by the Executive Officer on 4-5-74 for a period of six years. The period of tenancy, admittedly, has expired some time in May 1980. It is not disputed by the counsel for the petitioners that there is not statutory provision conferring on them a right of statutory tenants. However, they claim to be in possession of the land and on that ground challenge the present acquisition."
On that basis the learned Judge held that "in view of the undisputed position that the petitioners neither have a statutory or contractual right to be in possession of the land which belongs to the Temple, I do not consider it appropriate to entertain this challenge to the acquisition proceedings on behalf of the writ petitioners for exercise of the powers under Article 226 of the Constitution particularly when the Temple has not challenged the acquisition and the acquisition is for providing house-sites to weaker sections". The petitioners contend that their counsel was not right in conceding or not disputing that they had no right of statutory tenancy after the lease for six years in their favour expired on 3-5-1980. They assert that they were in possession of the land in question when Act 39 of 1974, amending the Andhra Pradesh (Andhra Area) Tenancy Act 1956, came into force. On the basis that they were cultivating tenants when Section 4(1) notification under the Act was published on 18-2-1981, they claim that they are entitled to a share in the compensation awarded for the said land.
4. In I.A.No. 56 of 1990 the petitioners contended that they acquired the right of permanent occupancy tenancy in the lands in question belonging to the first respondent deity. However, the first respondent relied on the observations of Upendralal Waghray, J referred to above in his judgment while dismissing W.P.No. 2778 of 1981 and contended that the petitioners were bound by the said observations and therefore could not be treated as statutory tenants or permanent tenants. The learned Subordinate Judge in his order dt. 26-12-1990 observed as follows with reference to the claim made by the petitioners and the stand taken by the first respondent:
"As per the documentary evidence produced by the petitioner go to show that the petitioners are continuing in possession even after coming into force of amended Act 39/74 on 1-7-1980 and it is also admitted by the respondent in his counter that the petitioners are continuing as tenants for the lands acquired by the State-Government 2nd respondent and it is denied that the petitioners are evicted from the lands belonging to the 1st respondent-temple either under Section 13 or 14 of A.P. Tenancy Act. As seen from the decision of their Lordships of Supreme Court and High Court of A.P. it can be seen that even if the petitioners are having indefeasible rights, they can question the compensation amount to be apportioned between the cultivating tenant and landlord............but I am satisfied an opportunity must be given to the petitioners with regard to the interpretation of the statutory right by their Lordships of High Court of A.P., some time can be granted for the petitioners to approach the Hon'ble High Court in getting orders from the High Court with regard to clarification of the writ proceedings rendered by his Lordship of High Court of A.P. in W.P.No. 2778/81 Dt. 6-8-85. Accordingly the petitioners shall be granted a time for a period of six months to obtain appropriate orders from the High Court in the above writ proceedings, till then injunction is granted restraining the 1st respondent from withdrawing the amount so deposited by the 2nd respondent Land Acquisition Officer till such time the petitioners shall obtain appropriate orders from the Hon'ble High Court, failing which the injunction granted in this petition restraining the 4th respondent deity from withdrawing the half of the amount so deposited by the 2nd respondent, shall stand vacated."
It is against this order that the petitioners as well as the first respondent-deity preferred the present C.M.As. as stated above.
5. In Writ Petition No. 8460 of 1991, the petitioners seek a writ declaring that the judgment of this Court dated 6-8-1985 in W.P.No. 2778 of 1981 and the observations contained therein are obiter and not binding on them and will not have any bearing in the disposal of L.A.O.P.No. 39 of 1990 on the file of the Sub-Court at Rajam and for a further declaration that the petitioners were cultivating tenants of the lands of an extent of Ac. 8-83 hectares in S.No. 277/1 and 278/2 of Vadam village in Palakonda Mandal of Srikakulam District and are entitied to a share of the compensation amount deposited under the Act for that land.
6. In C.M.A.No. 818 of 1991 preferred by the petitioners in that I.A., the following grounds were raised:
"3. The learned Judge has erred in law that the decision in W.P.No. 2778 of 1981 has a bearing to decide the present merits of the petitioners case and therefore the appellants have to obtain appropriate orders in the above writ petition within the period of six months.
4. The learned Judge ought to have seen that the decision in W.P.No. 2778 /81 cannot operate as res judicata for deciding the appellants rights in the compensation amount.
5. In any event, the learned Judge ought to have seen that a wrong concession made by a counsel cannot affect his clients interest in any manner.
6. The learned Judge ought to have further seen that the so called concession made by the appellants/counsel in the writ petition is only an erroneous approach of the provision of law and as such it would not bind the appellants in any event and cannot also operate as res judicata.
7. The learned Judge having also noted the admission made by the first respondent, in its counter and also had held that the appellants are continuing as tenants of the lands acquired by the Government and there was also no eviction of the appellants from the land as is required according to law, the learned Judge ought to have concluded that there cannot be any res judicata on account of the subsequent factors after the writ petition.
8. The learned Judge ought to have seen that the above writ petition was filed by the appellants questioning only the acquisition proceedings and there was no necessity for the Court to give such a finding in the writ petition and in any event such a finding has got to be held as obiter and cannot be said to be binding on the appellants."
These grounds cover all the questions raised in W.P.No. 8460 of 1991.
7. We are of the view that the questions raised in W.P.No. 8460 of 1991 can be adequately dealt with in C.M.L.A.No. 818 of 1991 itself, though this Court has inherent power to review its own orders made in exercise of its jurisdiction under Article 226 of the Constitution of India as laid down by the Supreme Court in Shivdeo Singh v. State of Punjab, AIR 1963 SC 1909 and A.T. Sharma v. A.P. Sharma, . In S. Nagaraj v. State of Karnataka, 1993 Supp.(4) SCC 595, the Supreme Court held as follows:
"Entire concept of writ jurisdiction exercised by the higher Courts is founded on equity and fairness. If the Court finds that the order was passed under a mistake and it would not have exercised the jurisdiction but for the erroneous assumption which in fact did not exist and its perpetration shall result in miscarriage of justice then it cannot on any principle be precluded from rectifying the error. Mistake is accepted as valid reason to recall an order. Difference lies in the nature of mistake and scope of rectification, depending on if it is of fact or law. But the root from which the power flows is the anxiety to avoid injustice. It is either statutory or inherent. The latter is available where the mistake is of the Court."
8. But in W.P.No. 8460 of 1991 the petitioners do not seek review of the order in W.P.No. 2778 of 1981 and at any rate it is too late in the day to have the order dated 6-8-1985 in that writ petition to be reviewed now. They do not also question the statement in the said order made by the Court that it was no disputed by the counsel for the petitioner that there was no statutory provision conferring on them a right of statutory tenants. It has to be noticed that in State of Maharashtra v. Ramdas Shrinivas Nayak, , the Supreme Court has observed a follows:
"We cannot allow the statement of the Judges to be contradicted by statements at the Bar or by affidavit and other evidence. If the Judges say in their judgment that something was done said or admitted before then that has to be the last word on the subject.
The principle is well-settled that statements of fact as to what transpire* at the hearing, recorded in the judgment of the Court, are conclusive of the facts so stated and no one can contradict such statements by affidavit c other evidence. If a party thinks that the happenings in Court have been wrongly recorded in a judgment, it is incumbent upon the party, while the matter is still fresh in the minds of the Judges, to call the attention of the very Judges who have made the record to the fact that the statement mad with regard to his conduct was a statement that had been made in error (Per Lord Buckmaster in Madhusudan v. Chandrabati, AIR 1917 PC 30 That is the only way to have the record corrected. If no such step is taker the matter must necessarily end there. Of course a party may resile and a Appellate Court may permit him in rare and appropriate cases to resile from a concession on the ground that the concession was made on a wrong appreciation of the law and had led to gross injustice; but, he may not ca in question the very fact of making the concession as recorded in the judgment."
This is followed in APAR (P) Ltd. v. Union of India, 1992 Supp. (1) SCC 1. More recently in State of Maharashtra v. Admane Anita Moti, , the Supreme Court has observed as follows:
"It is well established that the factual recitals or observations made in judgment or order are taken to be correct unless rebutted. The burden to rebut it is on the person who challenges it. One of the methods torebut such observation is to file the affidavit of the person who was present to the Court and to produce such material which may satisfy the Court the the recital in the judgment crept in inadvertently or it was erroneous."
In view of these authoritative pronouncements it is not possible for the petitioners to question the factum of concession made by their counsel a observed by Upendralal Waghray, J in his order dated 6-8-1985 in W.P.No. 277 of 1981.
9. The question, however, is whether the petitioners are estopped from contending that they were statutory tenants as on the date of the acquisition in question, in view of the concession made by their counsel in W.P.No. 2778 c 1981 that "there is no statutory provision conferring on them a right of statutory tenants". We are of the view that they are not so estopped. Whether there is a statutory provision conferring on the petitioners a right of statutory tenancy is a question of law which has to be answered by examining the Andhra Pradesh (Andhra Area) Tenancy Act, 1956, as amended by Andhra Pradesh Act 39 of 1974. In Veeramma v. Appayya, 1956 (2) An.W.R. 476 = AIR 1957 A.P. 965, Viswanatha Sastri, J observed as follows as regards the binding nature of admissions by counsel after referring to various authorities on the point:
"On question of fact parties are bound by the admission of their advocates, whether made in the course of the trial or in the appellate Court, because an Advocate's general powers in the conduct of a suit include the abandonment of an issue of fact, which in his discretion he thinks it inadvisable to press. Bommadevara Venkata v. Bhashyakarlu, ILR 25 Mad. 367 (PC) and U. Kotayya v. N. Sreeramulu, AIR 1928 Mad. 900. Such admissions cannot be resiled from merely on the ground that the party or his advocate was not posted with all the facts at the time.
Admissions of counsel on a point of law are, however, not binding on the parties as an estoppel and the Court is free to give effect to its view of the law irrespective of such admissions. jotindramohan Tagore v. Ganendramohan Tagore, 9 Beng. LR 377 at p. 401 (PC), Beni Prasad v. Dudhnath, ILR 27 Cal. 156 at pp.162-163, Societe Banque etc. v. Girdhari, AIR 1940 PC 90, Muthuswami v. Loganatha, AIR 1935 Mad. 404 and Nachippa v. Muthu, AIR 1946 Mad. 398."
In K. Rajaram v. The Government of Andhra Pradesh, Judgment dt.19-7-1966 in W.P. No. 1757 of 1964, Gopal Rao Ekbote, J held that it was well recognised that any wrong concession made on a question of law did not estop the person from reagitating the same question. Thus, that principle is well established.
10. The learned counsel for the first respondent deity relying on the decision of the Supreme Court in Daryao v. State of U.P., contends that the petitioners are barred from contending that they are statutory tenants as the order in W.P. No. 2778 of 1981 creates a bar of res judicata. We do not agree. In that case the Supreme court observed as follows:
"If a Writ petition is dismissed in limine and an order is pronounced in that behalf, whether or not the dismissal would constitute a bar would depend upon the nature of the order. If the order is on the merits it would be a bar; if the order shows that the dismissal was for the reason that the petitioner was guilty of laches or that he had an alternative remedy it would not be a bar, except in cases which we have already indicated. If the petition is dismissed in limine without passing a speaking order then such dismissal cannot be treated as creating a bar of res judicata. It is true that, prima facie, dismissal in limine even without passing a speaking order in that behalf may strongly suggest that the Court took the view that there was no substance in the petition at all; but in the absence of a speaking order it would not be easy to decide what factors weighed in the mind of the Court and that makes it difficult and unsafe to hold that such a summary dismissal is a dismissal on merits and as such constitutes a bar of res judicata.........".
In the present case the question whether the petitioners were statutory tenants at the relevant time was not directly at issue in W.P.No. 2778 of 1981 and, at any rate, there was no decision on merits. The attack in that writ petition was directed against the acquisition proceedings initiated by the State. In Mathura Prasad Bajoo Jaiswal v. Dossibai N.B. Jeejeebhoy, , a three judges Bench of the Supreme Court held as follows:
"It is true that in determining the application of the rule of res judicata the Court is not concerned with the correctness or otherwise of the earlier judgment. The matter in issue, if it is one purely of fact, decided in the earlier proceeding by a competent court must in a subsequent litigation between the same parties be regarded as finally decided and cannot be reopened. A mixed question of law and fact determined in the earlier proceeding between the same parties may not, for the same reason, be questioned in a subsequent proceeding between the same parties. But, where the decision is on a question of law, i.e., the interpretation of a statute, it will be res judicata in a subsequent proceeding between the same parties where the cause of action is the same, for the expression 'the matter in issue' in Section 11 of the Code of Civil Procedure means the right litigated between the parties, i.e. the facts on which the right is claimed or denied and the law applicable to the determination of that issue. Where, however, the question is one purely of law and it relates to the jurisdiction of the Court or a decision of the Court sanctioning something which is illegal, by resort to the rule of res judicata a party affected by the decision will not be precluded from challenging the validity of that order under the rule of resjudicata, for a rule of procedure cannot supersede the law of the land."
See also the decision of the Supreme Court in Sushil Kumar Mehta v. Gobind Ram Bohra, and Isabella Johnson v. M.A. Susai, . We need not pursue this matter further because in the present case the learned single Judge merely proceeded on the basis of the concession made by the counsel and did not enquire into the question whether the petitioners were the statutory tenants at the relevant time and acquired permanent tenancy rights at the relevant time after examining the statutoy provisions. On the other hand, the learned Judge assumed that there was no statutory provision conferring on the petitioners a right of statutory tenancy without examining the relevant statute and merely on the basis of concession by the counsel that there were no statutory provisions. Under the circumstances, the petitioners are not prevented by the bar of res judicata in contending that they were statutory tenants at the relevant time.
11. We are, therefore, of the view that the observations made by Upendralal Waghray, J in his order dated 6-8-1985 in W.P.No. 2778 of 1981 as regards the statutory rights of the petitioners in respect of the land in question at the relevant time will not have any bearing on the disposal of L.A.O.P.No. 39 of 1990 on the file of the Sub-Court at Rajam. Having said so, it is not for us to enquire as to whether the petitioners were cultivating tenants of the land in question at the relevant time and whether they are entitled to a share in the compensation amount under the land acquisition proceedings. That is a matter for the learned Subordinate Judge to consider finally in L.A.O.P.No. 39 of 1990. He will have to consider the same without in any way being influenced by the order of Upendralal Waghray, J in W.P.No. 2778 of 1981.
12. Having cleared the matter relating to the order in W.P.No. 2778 of 1981, the next question is as regards the compensation amount deposited by the State. In C.M.P.No. 11265 of 1991 in C.M.A.No. 818 of 1991 this Court passed the following order on 13-9-1991:
"As a result of the interim injunction granted by this Court in C.M.P. No. 7309 of 1991 in C.M.A.No. 818 of 1991 dated 19-6-1991, the petitioner herein, Sri Sri Jagannadha Swamyvari Temple, Palakonda, represented by its Executive Officer, is not in a position even to withdraw the interest that is being accrued on the amount now in deposit to the credit of O.P.No. 15 of 1987 in the Court of Subordinate Judge, Rajam. The deposit of the amount was pursuant to the order passed in C.M.P.No. 11532/1990 on 16-10-1990 by our learned brother J. Eswara Prasad, J. which is in the following terms:
"Interim order is made absolute, on the same conditions that were imposed by order dated 14-8-1990. On such deposit of the amount, the respondent is permitted to withdraw half of the amount so deposited without furnishing any security. The rest of the amount shall be invested in fixed deposit in a Nationalised Bank'.
The three respondents herein, who are the appellants in C.M.A. 818 of 1991, have grounded their claim on the contention that they are statutory tenants and, therefore, the compensation awarded by the Civil Court in O.P. 15 of 1987 should not in its entirety be permitted to be withdrawn by the Temple.
Having regard to the facts and circumstances of the case, we are of the view that the following order would meet the ends of justice:
"The Temple represented by its Executive Officer shall be permitted to withdraw the monthly interest on the amount now in deposit to the credit of O.P.No. 15 of 1987. The principal amount shall continue to remain in deposit until disposal of the C.M.A."
The learned counsel on both sides are agreed that both the C.M.As. could be disposed of on this question in terms of the said order. The order of Sri J. Eswara Prasad, J dated 14-8-1990 in C.M.P.No. 11532 of 1990 in A.S.No. 1654 of 1990 preferred by the State against the compensation awarded for the land in question in the judgment and decree in O.P.No. 15 of 1987 dated 23-2-1988, is as follows:
"that on condition that the petitioner herein depositing half of the amount of compensation awarded together with interest, solatium and costs decreed against him in the lower Court to the credit of O.P.No. 15/87 dated 23-2-88 on the file of the Subordinate Judge, Rajam within ten weeks from the date of this order, the execution of the decree passed in O.P.No. 15 /87 dt. 23-2-88 on the file of the Subordinate Judge, Rajam be and hereby is stayed, pending further orders on this petition".
It is in respect of this interim order that the final order dated 16-10-1990 was made by Sri J. Eswara Prasad, J in C.M.P.No. 11532 of 1990, which was extracted in the order of the Division Bench dated 13-9-1991 in C.M.P.No. 11265 of 1991 referred to above.
13. A.S.No. 1654 of 1988 was allowed by a Division Bench of this Court on 26-3-1992 setting aside the order of the learned Subordinate Judge in O.P.No. 15 of 1987 and confirming the award of the Land Acquisition Officer, but granting 30% solatium and 12% additional market value and interest at 9% per annum from the date of taking possession for one year and thereafter at 15% per annum till the date of deposit of the compensation. It is stated by the learned counsel for the first respondent Sri K. Sriramulu that the matter is taken to the Supreme Court and it is pending there.
14. We, therefore, direct that pending L.A.0.P.N0. 39 of 1990, the first respondent deity shall not be permitted to withdraw the compensation amount deposited in Court by the second respondent and that the entire amount deposited shall be invested by the lower Court in fixed deposit in a nationalised bank, if not already done, and the first respondent-deity represented by its Executive Officer shall be permitted to withdraw the interest on the amount so invested in fixed deposit.
15. In the result, C.M.A.No. 818 of 1991 is accordingly allowed. C.M.A. No. 562 of 1991 is dismissed. In view of the clarification given by us as regards the order dated 6-8-1985 in W.P.N0. 2778 of 1981, no further orders are necessary in W.P.No. 8460 of 1991 and it is accordingly disposed of. No costs.