Andhra HC (Pre-Telangana)
The Defence Estates Officer vs V. Suresh Babu And Ors. on 26 June, 1996
Equivalent citations: 1996(3)ALT447
JUDGMENT G. Bikshapathy, J.
1. The Writ Appeal is directed against the orders of the learned single Judge in W.P.No. 2108/92, dated: 18-8-1994.
2. The facts leading to the Writ Petition are that the petitioners are the owners of the land ad measuring Ac. 4-26 gts. in S.No. 56/1 situated at Kanchanbagh, Charminar Mandal, Hyderabad District. The Government requisitioned the said lands for the purpose of establishment of Defence Research Laboratories on 15-12-1978 on a tentative rent of Rs. 400/- per annum. Some other lands adjoining lands of the petitioners were also requisitioned and the rent appears to have been fixed at Rs. 950/- per annum per acre. Not satisfied with the fixation of the rent, the petitioners moved the Government and accordingly the Arbitrator was appointed by the Government. Award was passed on 17-4-1986 fixing the rent at Rs. 950/- per annum with solatium of 15% and with interest @ 6% per annum from the date of taking possession of the lands. Aggrieved by the said Award, the Respondents No. 1 and 2 carried die matter to the High Court in C.M.A.SR No. 9184/88 and the same was dismissed on 10-7-1989. Consequent on the dismissal of the CMA, the petitioners submitted representations to the 2nd respondent on 25-7-1991 requesting for me payment of rent as directed by the Arbitrator. The learned single Judge allowed the Writ Petition and directed the authorities to pay the rent as fixed by the Arbitrator from the period 15-12-1978 to 1-3-1985 within three months. Aggrieved by the said order of the learned single Judge, the present Writ Appeal has been filed.
3. The learned counsel for the Central Government submits that the learned single Judge ought not to have allowed the compensation together with solatium and interest. He submits that under the provisions of R.A.I.P. Act, 1932 payment of solatium and interest is not contemplated and therefore, he submits that the Award of the Arbitrator directing payment of rents together with solatium and interest is highly illegal and contrary to the provisions of the Act 30 of 1952.
4. On the other hand, the learned counsel for the Respondents submits that the Writ Appeal is thoroughly misconceived and the same is not maintainable. The Award of the Arbitrator was challenged by the Government and the same was dismissed. Therefore when once the appeal as provided under the R.A.I.P. Act is dismissed, the Government cannot have any possible defence for withholding the payment awarded by the Arbitrator unless further appeal is carried before the Supreme Court. Admittedly, no such steps were taken by the Government. The Writ Petition was filed only for the implementation of the Award of the Arbitrator. Therefore, the learned counsel for the Respondents submits that the Government cannot resort to parallel proceedings and hence the Writ Appeal is liable to be dismissed as not maintainable. We have considered the matter at length and we are in agreement with the contentions raised by the learned counsel for the Respondents. When once the Award of the Arbitrator was challenged by the Government, Under Section 11 of the Act 1952 and the said Appeal having been dismissed by the High Court, it would not be open for the Government again to obstruct the release of the amounts under the award. By filing the Writ Appeal the Government is indirectly making to challenge the validity of the award which was already decided against the Government in the C.M.A. The Government is estopped from making any challenge to the Award of the Arbitrator either directly or indirectly when once it became final and binding on the Government. Though, the principle of parallel proceedings can be invoked in exceptional cases such as abuse of process of Court by fraud or misrepresentation depending on the relevant facts and circumstances of each case, the same cannot be applied in the instant case. As already stated, the Government having availed the appeal remedy under the statute and having been unsuccessful in appeal, again cannot challenge the very same award what cannot be done directly cannot be allowed to be done indirectly.
5. A somewhat similar issue arose before the Supreme Court in Shankar Ramchandra Abhayankar v. Krishnaji Dattatraya Bapat, . The owner initiated eviction proceedings under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (the Act is short) against the tenant. The trial Court granted a decree for two rooms out of four rooms occupied by the tenant. Both sides filed appeals and they were dismissed by the District Judge. Thereupon tenant preferred revision before the High Court Under Section 115 of the Civil Procedure Code and the same was dismissed. After dismissal of revision petition, he again moved the High Court under Article 226 and 227 of the Constitution of India challenging the same order of appellate Court. The Division Bench held that in spite of the dismissal of Revision Petition by the single Judge, there could be interference under Article 226/227 of the Constitution of India. On appeal by Special Leave, the Supreme Court observed:
"The limits of the jurisdiction of the High Court under this Section are well defined by a long course of judicial decisions. If the revisional jurisdiction is invoked and both parties are heard and an order is made the question is whether the order of the Subordinate Court become merged in the order of the High Court. If it has got merged and the order is only of the High Court, the order of Subordinate Court cannot be challenged or attacked by another set of proceedings in the High Court, namely by means of a petition under Article 226 or 227 of the Constitution. It is only if by dismissal of the revision petition the order of the Subordinate Court has not become merged in that of the High Court mat it may be open to a party to invoke the extraordinary writ jurisdiction of that Court. There again the question will arise whether it would be right and proper for the High Court to interfere with an order of a Subordinate Court in a Writ Petition when a petition for revision Under Section 115, Civil Procedure Code, against the same order has been dismissed. Such a consideration will also enter into the exercise of discretion in a petition under Article 226 or 227"
A distinction was sought to be made between orders in appeal and revision. It was contended that in appeal the order of inferior Court merges with the order of appellate Court but not in case of revisional orders. The Supreme Court repelling the contention held:
"Now when the aid of the High Court is invoked on the revisional side it is done because it is a superior Court and it can interfere for the purpose of rectifying the error of the Court below. Section 115 of the Code of Civil Procedure circumscribes the limits of that jurisdiction but the jurisdiction which is being exercised is a part of the general appellate jurisdiction of the High Court as a superior Court. It is only one of the modes of exercising power conferred by the Statute; basically and fundamentally it is the appellate jurisdiction of the High Court which is being invoked and exercised in a wider and larger sense. We do not therefore, consider that the principle of merger of orders of inferior Courts in those of superior Courts would be affected or would become inapplicable by making a distinction between a petition for revision and an appeal"
Alternatively also the Court held:
"Even on the assumption mat the order of the appellate Court had not merged in the order of the single judge who had disposed of the revision petition we are of the view that a writ petition ought not to have been entertained by the High Court when the respondent had already chosen the remedy Under Section 115 of the Code of Civil Procedure. If there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the Subordinate Court. The refusal to grant relief in such circumstances would be in consonance with the anxiety of the Court to prevent abuse of process as also to respect and accord finality to its own decisions".
6. The case on hand stands on better footing as the award of the arbitrator was challenged in appeal as provided under the statute. Thus, the award of the arbitrator gets merged with the appellate order of the High Court.
7. Though the learned counsel contended that in the Act 30 of 1952, there is no provision for solatium and interest and therefore the Award is per se illegal, we are not inclined to accept this contention at the stage of Writ Appeal, when this Court had already confirmed the Award of Arbitrator Under Section 11 of the 1952 Act and the same became final and binding. Therefore, under Letters Patent jurisdiction, we cannot review the orders passed by this Court as appellate authority under the said Act.
8. Under these circumstances, we find no merits in the Writ Appeal and the same is liable to be dismissed. Accordingly, the Writ Appeal is dismissed. The Appellants shall make the payment of the amount as fixed under the Award with costs of Rs. 2,000/ - within a period of two months from the date of receipt of copy of this order.