K. Kankarathnamma and Otiiers v. State of Andhra Pradesh and Others

Judgment

1'64 K. KANKARATHNAMMA AND OTIIERS ,.,._,, Zl STATE OF ANDHRA PRADESH AND OTIIBRS (K. SuBBA RA<> AND J. R. MuoHOLKAR) Land Acquisition Act. 1894 (1 of 1894), s. 18(1)(2)-No reference to Court on the queJtion of quantum of compensation-Court if competent to deal with such matter-No objection to the proceeding1 before the court by the State-Defect if deemed to be waived. On a dispute with regard to the entitlement to the compensation awarded to the appellants in respect of certain land acquired by the State, the Land Acquisition Officer made a reference to the court for the apportion· ment of the compensation amount among the various claimants. Six of the appellants did not accept the award of the Land Acquisition Officer and made applications to him for referring the matter, for determination by the court.

No reference was made by him in pursuance of these appli· catiolls When the matter came up before the Court it proceeded on the footing that the reference made to it was not merely limited to the appor· tionment of compensation but also with respect to the amount of compensation. No objection was raised by the State before the Subordinato Judge that in the absence of any reference upon the applications of six of the appellants the Court was incompetent to deal with that matter. When the matter went up in appeal before the High Court, the Government Pleader raised the question that in the absence of a reference on the question of quantum of compensation, the Court had no jurisdiction to consider that matter at all. The High Court, allowed this plea to be raised before it but ultimately negatived it. and it also modified the finding of the Court as to the amount of compensation.

The appellants contended before the High Court that by reason of the failure of the 3tate to raise the plea before the Subordinate Judge as to the absence of a reference the State must be deemed to have waived the point. The High Court· accepted this argument upon the view that this was not a case of inherent lack of jurisdiction and that the defect in the procedure was such as could be waived. · llcld: (i) On consideration of the relevant prov1s1ons contained in «.. t~ of t.he J_and Acq1Jisition Act, the jurisdiction of the court arises solely on the basis of a reference made to it. Wherever jurisdiction is given by • statute and such jurisdiction is only given upon certain specified terms contained therein, it is a universal principle that those terms should be complied with, in order to create and raise the jurisdiction, and if they are not complied with the jurisdiction does not arise.

Therefore, it was • case of lack of inherc-.t jurisdiction and the failure of the State to ob. feet to the proceedings before the Court on the ground of an absence ol I 6 S.C..I:~. •cfcrencc in so far as the determination of compensation was concerned cannot amount to waiver or acquiescence. Indeed, when there is an absence of 'inherent jurisdiction, the defect cannot be waived nor can be aired by a:quiesccncc. (ii) Tbe court had no jutisdiction to determine the amount of CO!ll· .,ensation and thus go behind the order of the Land Acqui1ition OlllCor. . Nusserwanjee Pestonjee and others v. Mtet Mynoodeen Khan Wullu4 Mter Subroodeen Khan Bahadur, 6 M.L.A. 134, Alderson v. Pdli•<r and unother, [1901] 2 K.B. 833 and Seth Badri Prasad and 01her8 v. Seth\ Nagarmal and others, [1959] Supp. (I) S.C.R. 769, relied on. Venkata Krishnayya Garu v. Secretary of State, A.l.R. 1939 (P.C. 39- 60 M.L.J. 299, distinguished. C1v1L APPELLATE JurusDicTloN: Civil Appeal No. 325 of 1962.

Appeal from the judgment and decree dated August 4, 1959 of the Andhra Pradesh High Court in Appeal Suit No. 489 of 1954 . K. Rhimsankaram and R. Ganapathy Iyer, for the appellants. p. R'am Reddy, T. V. R. Tatachari and B. R. G. K. Achar, for respondent No.

1January 23, 1964. The Judgment of the Court was delivered by MUDHOLKAR J.-This is an appeal against the judgment Mudlwlw 1. of the High Court of Andhra Pradesh by which it reduced the am11unt of compensation awarded to the appellants by the Subordinate Judge, Vijayawada in respect of certain lands bt:longing to them which were acquired by the State. The lands in question are survey Nos. 281/2, 339/1 to 8 and 338/1 to 3 which are situate at a short distance from the town of Vijayawada and lie alongside the Vijayaw ida-Eluru Road. The Land Acquisition Officer had fixed Rs. 3,500 per acre for the first two of 1hese survey Nos. amt Rs. 4.000 per acre for the third survey number. The learned Subordinte Judge granted a uniform rate of Rs. 10,000 per acre for the lands comprised in all the survey numbC?rs. There were some disputes with regard to (1g64J !91-1 the entitlement to the compe.nsation for survey No. 339/1 K. KDn,karatli· to 3 a11d the Land Acquisition Officer, therefore, made a , .. .~i.ma reference to the Court for the apportionment of the com- .

Stal~. ~I Andhra pensation amount among the various claimants. Six of the Praduh appellants did not accept the award of the Land Acquisi- M•halkar J. lion Officer and made applications in writing to him within the time allowed by Jaw for. referring the matter for deter- "mination of the court. It is common ground that no reference was made by the Land Acquisition Officer in pursuance of these applications. When the matter came up before th<> Court it proceeded on the footing that the reference made to it by ·the Land Acquisition Officer was not merely limited to the apportionment of compensation but was also with respect to the amount of compensation.

No objection w~, however, raised on behalf of the State that in the absence of any reference upon the applications of six of the appellants the Court was incompetent to deal with that niatter. , When the matter went up before the High Court by way of an appeal from the judgment of the Subordinate Judge, the Government pleader raised the question that in the absenr.e of a reference on the question of quantum of compensation by the Land Acquisition Officer, the Court had no jurisdiction to consider that matter at all. The High Court, though it ultimately reversed the finding of the court as to the amount of compensation, unfortunately allowed the plea to be raised before it but ultimately upon a consideration of certain decisions, negatived it. We say unfortunately because this is not a kind of plea which the State ought at all to have taken.

Quite clearly applications objecting to th!( rates at which compensation was allowed were taken in time by persons interested in the lands which were under acquisition and it was no fault of theirs that a reference was not made by the Land Acquisition Officer. Indeed, whenever applications are made under s. 18 of the Land Acquisition Act, it is the duty of the Land Acquisition Officer to make a reference unless there is a valid ground for rejecting the applications such as for instance that the applications wer~ barred by time. Where an officer of the State is remiss in tl\e performance of his duties in fairness the State ought not to take advantage of this fact. We are further of th• .opinion that the High Court, after the plea had been raised, would have been well-advised to adjourn the matter for enabling the appellants before us, who were res_;iondents in the High Court, to take appropriate steps for compelling the La,1d Acquisition Officer to make a reference. K. K.ankaralJi.

State of .A.ndhro Pradesh All the same since the point was permitted to be urged before it by the High Court and has been raised before us on behalf of the State it is necessary to decide it· On behalf of the appellants it was contended before . the High Court that by reason of the failure of the State to raise the plea ·before the Subordinate Judge as to the absence of a reference the State must be deemed to have waived the point. The High Court accepted this argument upon the view that this was not a case of inherent lack of jurisdiction and that the defect in the procedure was such as could be waived. In our opinion the view of the High Court is not correct.

Section 12( 1) of the Land Acquisition Act provides that after an award is filed in the Col1ector's of!kc it shall. except as provided in the Act, be final and conclusive evidence as between the Collector and the persons interested of the true area znd value of the land and the apportionment of the compensation among the persons interested. The only manner in which the finality of the award can be called into question is by resort to the provisions of s. 18 of the Land Acquisition Act, sub-section (1) of which reads thus: "Any person interested who has not accepted th~ award may, by written application to the C0llector, require that the matter be referred by the Collector for the determination of the Court, whether his objection be to the measurement of the land, the amount of the compensation, the persons to whom it is payable, or the apportionment of the compensation among the persons interested." The proviso to sub-s. (2) prescribes the time within which an apnlication under sub-s.

(l) is to be made. Section 1 !J provldes for the making .of a reference by the .colle:tor and i!pCCiiies the metters which are to be comprised m that Mudholkar 1. [1904) 196-1 reference. Thus the matter goes to the court only upon a K. Kankarath· reference made by the Collector. It is only after such a '"";ma reference is made that the court is empowered to determine State o/ Andhra the objections made by a claimant to the award. Section 21 l'radeih th f th eed' res nets e scope o e proc mgs before the court to Mlldholkar J. consideration of the contentions of the persons affected by the objection. These provisions thus leave no doubt that the jurisdiction of the court arises solely on the basis of a reference made to it. No doubt, the Land Acquisition Officer has made a reference under s. 30 . of the Land Acquisition Act but that reference was only in regard to the apportionment of the compensation amongst the varioUJ claimants.

Such a reference would certainly not invest the court with the jurisdiction to consider a matter not directly connected with it. This is really not a mere technicality for as pointed out by the Privy Council in Nusserwanjee Pe1- tonjee & Ors. v. Meer Mynoodeen Khan Wullud Meer Sudroodeen Khan Bahadoor(') wherever jurisdiction is given by a statute and such jurisdiction .is only given upon certain specified terms contained therein it is a universal principle that those terms should be complied with, in order to create and raise the jurisdiction, and if they are not complied with the jurisdiction does not arise. This was, therefore, a case of Jack of inherent jurisdiction and the failure of the s•atc to object to the proceedings before the court on the ground of an absence of reference in so far as the determin1tion of compensation was concerned cannot amount to waiver or acquiescence.

Indeed, when there is an absence of inherent jurisdiction, the defect cannot be waived nor can be cured by acquiescence. Jn Alderson v. Palliser & A nr. ( 2 ) the Court of Apoeal held that where the want of jurisdiction appears on the face of the proceedings. it cannot be waived. In Seth Badri Prasad & Ors. v. Se h Nngarmal and Ors.(") this Court has held that even the bar of illegality of a transaction though not pleaded in the courts below can be allowed to be pleaded in this Court if it appears on the face of the pleading in (') 6 M. !. A. 134 at 155. (1901) 2 K. B. 833. (') [ 19591 Supp. (1) s.c.R. 169. the case. The High Court has, however, based itself largely upon a decision of the Privy Council in Venkata Krishnayya Garu v. Secreiary of State(').

In that case there was in fact a reference by the Collector to the court but that reference was made by the Collector not upon the application of the person legally entitled to compensation but by a person whose claim to ownership of property had failed before the civil court but who was still a party to the land acquisition proceedings. In our opinion that decision is distinguishable on the short ground that whereas here there is no reference at all by the Collector or the Land Acquisition Officer, in that case the Collector had made a reference though in making it he had committed an error of Jaw in that he acted upon the application of a -person who had been found to have no interest in the land. Disagreeing with the High Court we, therefore, hold that the Court had no jurisdiction to determine the amount of compensa•ion and thus go behind the order of the Land Acquisition Officer. Upon this short ground tlie appeal must be dismissed. We have, however, heard Mr. Bhimasankaram on merits and in our opinion there are no substantial grounds which would jus•ify interference with the conclusions arrived by the High Court.

For determining the amount of compensation seven sale deeds were filed, Exs. Al to A4, on behalf of the State and Bl to B3 on behalf of the anpellnnts. A synopsis of the sale deeds has been made by the High Court in i•s judgment and we can do no better than to reproduce it: St. Exhi- Date E"<t~1.t of Am·Jun.t Rate per Proximity of the No. bit land acre site acquired Acs. cts. Rs. Rs. 15-z-46 0-40} 1,750 4,240 Opposite to the ~uit }and and abutt1ng the main road, A-2 25-8-46 0-651 2,500 3,800 Some dist~nce away from the site of the acquired land ti>- wards Eluru. (')A. I. R. 1939 P, C. 39; 6o M. L. J. 399, IP64 1'.. Link.,.,,.. lillllHilU Sta11 of A.tt4/w l'rodull /(, Lnkarallt- 1iammo Stal• of Andhra Prade1b Mudho/kar J. A-3 9-10-46 1-00 4,Soo 4,500 Very near the acquired land the same vendee.

4A-4 !)-10-46 I·OO 4,500 . 4,500 Part of the same site, and the vendee. B-1 14-10-46 0-70 7,000 10,000 5 furlongs away from t;.c suit site and uearer .bezwari.a.

6B-2 14·"-41 l-09 Just over 5 furJongs away to- 12,000 12)000 wazd3 Bci;wada.

7B-3 24-1-46 0-36 r,850 s,o·JO It is a pa.rt and pared of ti:1e ~1:1n1e 1u11d th;,ll is suught to be acqu1- red. Out of these sale deeds Exs. Al and A2 were rejected by the High Court, Al on the ground that it is several months earlier than the date of notification under S· 4 of the Act and Ex. A2 on the <;round that the land comprised in it is some distance away from the land under acquisition and is 'llso further away from Vijayawada than this land. The High Court similarly rejected Ex. B-2 on the ground that tile transaction was entered into four months after the publication of the notification and on the further ground that it is located in the direction of Vijayawada at a distance of five furlongs from the land acquired. It has apparently rejected also Ex. B3, though the land sold thereunder is a part and parcel of the same land which is sought to be acquired. The ground appears to be that the land sold thereunder is 011ly 36 cents in area. It has accepted Exs.

A3 and A4 and on that basis awarded compensation at the rate of Rs. 4,500 per acre for all these Jami>. In so far Ex. B 1 is concerned the High Court ha5 taken the view that thou,;h it bears the date of October 14, 1946 the cir-. cumstanc~s tlwt :t was actually registered on February 13, I 94 7 and som~ of the stamp papers used were in the names of persom unconnected with the transaction shows that it has rea'ly been ante-dated so as to make it appear to be earli~r io point of time than the notification. In our opinion what the High Court has said about these three exhibit~. Bl, B2 and B3, s~ems to have considerable force. At any rate we do not think that there are lll1Y substantial grounds upon which we can look at these transact10ns in a different way. If these documents go away, as also Exs. Al and A2, we are left with only Exs. A3 and A4.

Some argument was advanced before us to the effect that the lands comprised in the transactions repre- !iented by these documents have no direct access to tne road and that, therefore, they could not have fetched a good price. Bearing in mind the fact that these are all agricultural lands a rate of Rs. 4,500 per acre at which they were sold cannot prima facie be regarded as inadequate. As regards access, it is sufficient to say that they are parts of the same field which abut on the road, though the portions sold do not themselves abut on the road. Since the lamls :;:;Id under these sale deeds were part and parcel of the same field which abuts on the road those who purchased these lands would naturally obtain a right of way over the land unsold so as to have access to the road. In the circumstances we hold that the appeal is without substance. Accordingly we dismiss it with costs. Appeal dismissed. RANI RATNA PROVA DEVI RANI SAHEBA OF DHENKENAL STATE OF ORISSA AND ANOTHER (P. B. GAJENDRAGADKAR, K. N. WANCHOO, K. C. DAS GUPTA, I. c.

SHAH AND N. RAJAGOPALA AYYANGAR JI.) ConJtitutio11 of India, 1950, Arts, 14 and 366(22)-0rissa Private Landr of Rulers (Assessment of Rent) Act (13 of 1958), 11. 5 and 6- Validity-''Rulet', meaning of. The petitioners in these three writ petitions challenged the operative provisions of the OrisSa Private Lands of Rulers (Assessment of Rent) Act, 1958 and the Rules framed thereunder. These petitioncro posses• l9M K. Kllllkarath- Stilt< of Andhra Pradesh Mudhalkar I. lan•Vf, 11