*HON'BLE SRI JUSTICE GHULAM MOHAMMED *HON'BLE SRI JUSTICE G. BHAVANI PRASAD +L.A.A.S. No.305 of 2008 % 18/03/2010 # D. Lakshminarayana Rao (died) by LRs. and others ..... APPELLANTS Vs. $ D. Gopalakrishna Rao and others .....RESPONDENTS ! COUNSEL FOR THE APPELLANTS: Sri O. Manohar Reddy ^ COUNSEL FOR THE 1ST RESPONDENT: Sri Damodar Rao & Sri Satish Deshpande ^ COUNSEL FOR THE 2ND RESPONDENT: ^ COUNSEL FOR THE 3RD RESPONDENT: Government Pleader for Appeals < Gist : Ø Head Note: ? CITATIONS: 1. 2001(5) ALT 565 2. 2002(9) SCC 426 3. 2003(5) SCC 561 4. 2005(1) SCC 545 5. 2006(12) SCC 300 6. 2006(13) SCC 574 7. AIR 1994 AP 199 HON’BLE SRI JUSTICE GHULAM MOHAMMED HON’BLE SRI JUSTICE G. BHAVANI PRASAD L.A.A.S. No.305 of 2008 JUDGMENT: (per Justice G. Bhavani Prasad) The order dated 09-04-2007 in O.P. No.19 of 1997 on the file of the Senior Civil Judge’s Court at Asifabad is under challenge in this appeal at the instance of claimants 3 to 5 therein, impleaded as the legal representatives of the deceased D. Lakshminarayana Rao, the 2nd claimant therein. The reference under Section 18 of the Land Acquisition Act, 1894 (for short “the Act”) for fixing the market value of the acquired land was in pursuance of the original claimant filing an application for reference of the matter to the civil Court while receiving the compensation under protest as per the award, dated 30-06-1995. Ac.168-12 cents of Danaboinapeta village of Asifabad Mandal were acquired on the requisition of the Executive Engineer, Vattivagu Project Division after due compliance with the formalities of the draft notification under Section 4(1) of the Act on 12-05-1993, draft declaration on 10-11-1993 and taking over of the possession on 06-01-1977. No sale statistics could be obtained, as the village was submerged since 1981-82 and hence, on the basis of the values mentioned in the Basic Value Register maintained by the Registration Department, the compensation was fixed. On the death of the original claimant during the pendency of the reference, his legal representatives were impleaded as respondents 3 to 5 as per orders on I.A. No.131 of 2002 and the 6th respondent was impleaded as per orders on I.A. No.162 of 2002, dated 18-12-2002. Claim statements were filed by all the respondents respectively. It has to be noted that the deceased 2nd respondent in his claim statement stated that he and the 6th respondent, brothers, were co-owners of the acquired lands till the acquisition and he had no objection to pay half of the enhanced compensation to the 6th respondent. Respondents 3 to 5, who were impleaded as legal representatives of the 2nd respondent, however, claimed that they alone are entitled to receive the enhanced compensation excluding the 6th respondent who had no right. The 6th respondent raised similar pleas as the 2nd respondent. During enquiry before the trial Court, R.Ws.1 to 5 were examined and Exs.A.1 and B.1 to B.7 were marked. In the impugned order, the trial Court not only considered the just and reasonable market value but also went into the question whether the 6th respondent being the younger brother of the 2nd respondent is entitled to half share in the compensation. It has concluded that the relationship is not in dispute and that the 2nd respondent himself pleaded that in the circumstances stated in the claim statement, the 6th respondent is entitled to half share in the compensation, while his legal representatives claimed that the acquired lands exclusively fell to the share of the 2nd respondent only, while some other lands fell to the share of the 6th respondent. The trial Court noted that only the 6th respondent entered the witness box as R.W.1, while respondents 3 to 5 neither gave evidence nor did they produce any evidence on this aspect. The trial Court also noted that even during the award enquiry, the 2nd respondent admitted that the 6th respondent is entitled for half share, which was accordingly referred to in the award by the Land Acquisition Officer. Concluding that once the 2nd respondent admitted the claim of the 6th respondent, respondents 3 to 5 had no right to challenge the same, the trial Court further noted that the 6th respondent was not even cross- examined by respondents 3 to 5. The statements of respondents 2 and 6 were noted to have been recorded by the Land Acquisition Officer and the positive endorsements made by respondents 2 and 6 in this regard were also noted. Consequently, the 6th respondent was held entitled to half share of the compensation. Respondents 3 to 5 filed this appeal contending that in a reference under Section 18 of the Act, the reference Court has no power to adjudicate with regard to apportionment of the compensation and the reference Court cannot go beyond the order of reference. The 6th respondent is neither a proper nor a necessary party and allowing his application for impleadment itself was illegal and incorrect. The acquired lands having fallen to the share of the father of the appellants, the appellants alone were entitled to the compensation and no statements allegedly recorded by the Land Acquisition Officer could have been relied on. Any such statements of the 2nd respondent do not create any legal right for the 6th respondent and therefore, the appellants sought for reversal of the direction about the entitlement of the 6th respondent to half share in the compensation. The 6th respondent in his counter-affidavit to L.A.A.S.M.P. No.453 of 2008 contended that in the absence of any challenge to the order in I.A. No.162 of 2002 impleading him, the appeal is not maintainable. He contended that during partition between the brothers in 1965, the lands fell to the share of their mother and on her death in 1984, they were mutated in the name of the 2nd respondent being the elder brother. The 6th respondent was looking after the mother till her death and performed her obsequies and the brothers were entitled to half share each as admitted by the 2nd respondent. No separate award need be passed in favour of the 6th respondent in view of the admission of the 2nd respondent and the admissions of the 2nd respondent are binding on the appellants. Mere mutation has no adverse impact and hence, the 6th respondent desired that the appeal be dismissed. Sri O. Manohar Reddy, learned counsel for the appellants and Sri Damodar Rao, learned counsel for the 1st respondent herein/6th respondent in the reference are heard at length; and copy of award, copy of the order in I.A. No.162 of 2002 impleading the 6th respondent, copy of the counter of the deceased 2nd respondent before the trial Court, copy of the reference made by the Sub Collector, Asifabad, copies of statements of the deceased 2nd respondent (Exs.B.2 to B.4) and copy of attested specimen signatures of the deceased 2nd respondent were filed into Court on behalf of the 6th respondent for perusal and reference. The learned counsel for the appellants relied on Repaka Bhyrava Murthy v. Muppidi Venkataraju[1], Ajjam Linganna v. Land Acquisition Officer[2], Prayag Upnivesh Awas Evam Nirman Sahkari Samiti Ltd. v. Allahabad Vikas Pradhikaran[3], Ahad Brothers v. State of M.P.[4], Shyamali Das v. Illa Chowdhry[5], and P.K. Sreekantan v. P. Sreekumaran Nair[6]. The point for consideration is whether impleading the 6th respondent after the death of the 2nd respondent and declaring him to be entitled to half share in the compensation are legal and sustainable ? Point: The reference by the Sub Collector, Asifabad under Section 18 of the Act under a letter, dated 25-04-1997 along with its enclosures specifies about the reference being made at the instance of the 2nd respondent. But the statement of the 2nd respondent before the Revenue Divisional Officer during the award enquiry on 07-01-1995 was that there was equal share in the land under acquisition for his brother, the 6th respondent. The 2nd respondent specifically stated that except himself and the 6th respondent, who had equal shares, there were no other shareholders or protected tenants. This statement had again endorsements of reconfirmation by the 2nd and 6th respondents subsequently. The award dated, 30-06-1995 by the Sub Collector and Land Acquisition Officer, Asifabad referred to the 6th respondent being notified as the occupant in respect of survey No.11 of an extent of Ac.10-65 cents, while the 2nd respondent was notified as the pattedar and it was further noted that the 2nd respondent claiming compensation for Ac.3-65 cents of the land only in the said survey number, had deposed in the award enquiry that he will give half share to the 6th respondent, due to which a separate award was unnecessary. The award with reference to acquisition of Ac.10-00 in S.No.5 and Ac.13-40 cents in S.No.8, made no specific reference to any sharing of compensation. However, the 2nd respondent in his counter in O.P. No.19 of 1997 also specifically stated in para 5 that he and the 6th respondent, his younger brother, are co-owners of the lands in S.Nos.5, 8 and 11 and the 2nd respondent was cultivating the lands through the 6th respondent till they were taken over by the Government and therefore, the 2nd respondent had no objection if half of the enhanced compensation with regard to the said lands is paid to the 6th respondent. It was during the pendency of the reference for enquiry that the 2nd respondent breathed his last and the appellants were brought on record initially as his legal representatives as per orders on I.A. No.131 of 2002. Then, the 6th respondent filed I.A. No.162 of 2002 under Order I Rule 10 and Section 151 of the Code of Civil Procedure to implead him as a respondent, which was ordered on contest on 18-12-2002. The copy of the order shows that it was after the death of the 2nd respondent on 07-05-2002 that the entitlement of the 6th respondent to half share was questioned by respondents 3 to 5/the appellants. The trial Court noted that the 2nd respondent during his life himself filed a claim statement admitting the half share and expressing no objection for payment of such half share to the 6th respondent. While leaving the claims of the appellants about the genuineness of the signatures of the 2nd respondent to be decided later, the 6th respondent was considered to be a proper and necessary party to the reference having a right in the acquired land. The trial Court also noted that the decision in Cyrus Investment (P) Ltd., Hyderabad v. Mohd. Fareeduddin Khan[7] was overruled in Repaka Bhyrava Murthy v. Muppidi Venkataraju (1 supra) holding that an interested person, who is a proper, even if, not a necessary party, can be impleaded under Order I Rule 10 of the Code of Civil Procedure. The order allowing I.A. No.162 of 2002 and impleading the 6th respondent was questioned for the first time in this appeal and not in any other manner earlier. Repaka Bhyrava Murthy v. Muppidi Venkataraju (1 supra) by a Larger Bench of this Court was considering whether Order I Rule 10 of the Code of Civil Procedure can be taken recourse to in a reference under Section 30 of the Act. While exhaustively referring to the relevant provisions of the Act, it was held that the person interested was covered by an inclusive definition by the Statute, which is not exhaustive and in any event a person claiming interest in payment of compensation must by necessary implication have an interest in the land sought to be acquired including a right of easement or the amount of compensation. A person was considered likely, for all intent and purport, to be positively interested in a reference sought by another person, although he had not appeared before the Collector. The answer to the question whether a person, who did not appear before the Land Acquisition Officer, has no locus standi to get himself impleaded as a party, was held liable to be rendered having regard to the facts and circumstances of each case. The possibility of a person, who did not appear before the Collector due to the absence of any notice or otherwise also having his interest protected by the Collector by an award passed in his favour, was specifically noted and the maintainability of an application under Order I Rule 10 of the Code of Civil procedure was also considered with reference to the applicability of principles of res judicata to the determination of the dispute under the Act and as multiplicity of proceedings should not be encouraged, the wide power conferred on the Court under Order I Rule 10 of the Code of Civil Procedure was considered available, if to the satisfaction of the Court, a party is necessary and proper party. The Larger Bench, with reference to various situations that may lead to the person interested being kept in dark due to absence of knowledge of acquisition or absence of notice or due to being a victim of fraud, considered that the interests of justice demanded that he should be impleaded as a party. With reference to various precedents from the Supreme Court, the Larger Bench held that any substantive right of a party cannot be allowed to be obliterated because of procedural provisions or can be considered to be non est only due to procedural and technical irregularities. The Larger Bench, therefore, clearly laid down that a person may not be entitled to be impleaded as a party only for purpose of enhancement of compensation, but, if any other question arises, which touches the issue of his entitlement or apportionment to the amount of compensation, the same may be considered by reason of an application under Order 1 Rule 10 of the Code of Civil Procedure. The principle thus laid down by the Larger Bench that procedures are only hand maids of justice which can be suitably moulded to do complete justice between the parties, is sufficient answer to the claim of the appellants herein that recourse could not have been had to Order I Rule 10 of the Code of Civil Procedure to implead the 6th respondent. Ajjam Linganna v. Land Acquisition Officer (2 supra) is a case in which impleading of persons, who did not approach the Land Acquisition Officer seeking a reference under Section 18 of the Act earlier, was held to be not open to the reference Court, as such a request was allowed by the reference Court in a reference under Sections 30 and 31 converting such reference into one under Section 18 without the applicants ever approaching the Land Acquisition Officer for enhancement. The Larger Bench of this Court in Repaka Bhyrava Murthy v. Muppidi Venkataraju (1 supra) had, in fact, referred to this decision and noted that the Apex Court had also directed impleadment of one of the parties who had only made a prayer for reference, although she had not appeared before the Land Acquisition Officer. In the present case, the claims of the 2nd and 6th respondents were under consideration by the Land Acquisition Officer who in his award had recorded about the consent of the 2nd respondent to equally share the compensation with the 6th respondent, which was questioned by respondents 3 to 5 to the reference only after the death of the 2nd respondent. In Prayag Upnivesh Awas Evam Nirman Sahkari Samiti Ltd. v. Allahabad Vikas Pradhikaran (3 supra), the question was whether the reference was made under Section 18 or Section 30 and it was held that in the absence of a proper reference, the reference Court had no jurisdiction to decide the question of enhancement of compensation, as there was no reference under Section 18 of the Act and as the reference Court cannot decide the matters which are not referred to it. In Ahad Brothers v. State of M.P. (4 supra), the Apex Court held that the reference Court had no jurisdiction under Section 18 of the Act to determine the title of the State over the acquired land, as, if the State was owner of the land in question, there was no reason for it to acquire its own land. The incompetence of the State to seek a reference under Section 30 after an award was passed on the State proceeding to acquire the land on an assumption that it belongs to a particular person, is for obvious reasons and the observation that the High Court committed an error in taking a view that the question of title could be decided in a proceeding under Section 18 of the Act, was with reference to such incompetence of the State. Shyamali Das v. Illa Chowdhry (5 supra) is a case where the attempt to be impleaded as a party was negatived, as the party did not apply for reference under Sections 30 and 31 of the Act in spite of an opportunity given by an order of the Calcutta High Court and as a finding of fact was once recorded by the reference Judge that the party was not a party interested. Opining that a second application, despite any subsequent event, was not maintainable, the Apex Court held the party to be disentitled to maintain an impleadment application. It is true that incidentally the Apex Court observed that the Land Acquisition Act is a complete Code in itself. But it is clear that the failure to get impleaded therein was not very much due to inapplicability of Order I Rule 10 of the Code of Civil Procedure to proceedings under the Act. It may be incidentally noted that His Lordship Hon’ble Sri Justice S.B. Sinha, who rendered the judgment, was speaking for the Larger Bench over which he was presiding as the then Hon’ble Chief Justice of this Court in Repaka Bhyrava Murthy v. Muppidi Venkataraju (1 supra). In P.K. Sreekantan v. P. Sreekumaran Nair (6 supra), the Apex Court was dealing with the question of determination of an inter se dispute covered by Section 30 of the Act in a reference in terms of Section 18 of the Act and the conclusion that it is impermissible to deal with a matter covered by Section 30 while dealing with a reference in terms of Section 18, can have no application to a case like the present one, where the parties to the original reference were not at dispute about the persons to whom the compensation has to be paid and in what proportion and a controversy about the persons entitled to compensation arose after the reference with the legal representatives of the original claimant taking a diametrically opposite stand on the question. Thus, none of the precedents cited run counter to the principle laid down by the Larger Bench of this Court in Repaka Bhyrava Murthy v. Muppidi Venkataraju (1 supra) and the failure of the persons to be brought on record or the failure to have the scope of the references varied or modified or expanded in these cases respectively, was for different reasons. The decision of the Larger Bench, still holding the field making Order I Rule 10 of the Code of Civil Procedure not inapplicable to references under the Act and making consideration of such request dependent on the facts and circumstances of each case, makes the appeal untenable on the admitted facts. The mere fact that Repaka Bhyrava Murthy v. Muppidi Venkataraju (1 supra) was a case arising under Sections 30 and 31 of the Act makes no difference, as the principle is squarely applicable even to references under Section 18 of the Act on the same logic and for the same reasons. Section 18 of the Act entitles any person interested to make an application to have the matter referred by the Collector for determination of the Court. The precedential law about the restricted special jurisdiction which the civil Court exercises under Section 18 laying down that the reference Court can neither direct a reference to itself nor consider that a reference ought to have been made but was not made in respect of an interested person, is obviously concerning pre-reference disputes not referred to the civil Court and those decisions, which declined to take recourse to Order I Rule 10 of the Code of Civil Procedure to add parties after the reference, were mostly in respect of such pre-reference disputes. While a reference under Section 30 of the Act by the Collector to the civil Court arises only if any dispute arises as to the apportionment of the amount of compensation settled or any part thereof, obviously such a dispute must have arisen before or by the time of the Collector making the award and before payment. While the provisions of the Code of Civil Procedure apply to the proceedings before the civil Court under the Act by virtue of Section 53, in so far as they are not inconsistent with the Act, in the event of the death of a person referred to the civil Court after the reference, there can be no doubt that the provisions of Order XXII of the Code of Civil Procedure apply. In the event of any dispute about who the legal representatives of the deceased are for purposes of the reference, a determination has to be made with reference to Order XXII Rule 5 of the Code of Civil Procedure by the reference Court. The Proviso to Order XXII Rule 5 of the Code of Civil Procedure makes it clear that if such question arises before an appellate Court, that Court may call for a finding from the subordinate Court, which it may take into consideration. Consequently, in the event of the death of a person who was referred to the civil Court under the Act, as to who should be brought on record as his legal representatives, is a question within the jurisdiction of the reference Court/the appellate Court. When the 2nd respondent died subsequent to the reference and when he stated in the proceedings before the Land Acquisition Officer and the reference Court that the 6th respondent was entitled to half of the compensation, which the appellants disputed after they were brought on record in the reference, the request of the 6th respondent to be brought on record to protect his right to half of the compensation as admitted by the 2nd respondent could also have been considered by the reference Court under such circumstances, tracing its jurisdiction to the provisions of Order XXII of the Code of Civil Procedure also, apart from Order I Rule 10 thereof. The relationship between the 2nd and 6th respondents being not in dispute and the 2nd respondent’s admissions before the Land Acquisition Officer and the reference Court about the right of the 6th respondent to get half share in the compensation having not been rendered doubtful by any strong circumstances before the Land Acquisition Officer or the reference Court, the impleadment of the 6th respondent by ordering I.A. No.162 of 2002 cannot be considered illegal or unsustainable. Even assuming that the appellants are entitled to question the order in I.A. No.162 of 2002 straight away in this appeal without ever challenging the same otherwise in the meanwhile, the impleadment of the 6th respondent in the light of the consistent stand taken by the 2nd respondent till his death including before the reference Court, cannot be considered unjustified on the facts and circumstances of the case. The reference Court, which left open the objections about the genuineness of the documents attributed to the 2nd respondent to be decided in the main reference and not in I.A. No.162 of 2002 , had concluded in favour of the 6th respondent mainly due to the appellants herein neither entering into the witness box nor producing any oral or documentary evidence nor at least contradicting the 6th respondent by way of cross-examination, where as, the 6th respondent as R.W.1 corroborated on oath the different documents about the admissions of the 2nd respondent about his right to half share in the compensation. The conclusions of the trial