Case: Himalayan Tile &amp; Marble Private Limited Vs. Francis V. Coutinho

officer against whom the gravest allegations have been made in the petition that it was he who made false representations to the petitioners and that it was with his connivance that the 3rd respondents played a fraud upon the petitioners. We can hardly therefore accept the statement of this officer. At any rate it cannot be accepted in the face of the categorical admission of his superior officer, the special Land Acquisition Officer himself. Then it is further urged on behalf of the appellants that there is no doubt or dispute that proceedings were taken under Section 17 (2) relying upon the urgency clause which empowers the State Government to take possession in anticipation of acquisition. It was urged that if those proceedings did take place some lands must have been taken possession of and that fact supports the affidavit of Hathi. If possession had been taken we have no doubt that adequate documents must have been prepared but none has been filed. Apart from all that, we will assume for the sake of argument that documents may have been prepared as to possession. If they were prepared by Hathi they would in our opinion be very suspicious. What is more, it is common knowledge that in spite of receipt of possession being filed in Court and reports being made of delivery of possession the facts as to actual possession are often different. The possession according to the affidavit of Hathi of one acre of land was said to have been taken on 22nd February, 1960, but the petition was filed on 12th January, 1962, more than two years later and it is in the petition that the petitioners specifically averred that they were in possession of all the lands under acquisition. To that allegation there was not merely no reply on the part of the 3rd respondent but a positive admission on the part of the Land Acquisition Officer. It may be therefore that the fact as to possession had changed in the meanwhile between 1960 and 1962 therefore the Land Acquisition Officer admitted that possession of all the lands was with the petitioners. At any rate in this state of the record we cannot but conclude that on the date of the petition the lands under acquisition were in the possession of the petitioners.19. with this comment upon the ancillary point we turn to consider the main contention namely that the 3rd respondent acquired an interest or right de hors the Land Acquisition Act by virtue of the agreement entered in- to between them and the Government, which they could protect in the writ petition and therefore no provision of the Land Acquisition Act can bar them from protecting that right. We have already said that in our opinion the writ petition was nothing more or less than a continuation of the proceedings in land acquisition, for the whole purpose and the object of the writ petition was to challenge the entire land acquisition proceedings and the award made. It was not a different or new proceeding and the right which the 3rd respondent claimed was not a separate and an independent right. It was a right which they claimed as a party for whom the land acquisition proceedings were undertaken. It was this right as such a party which they were seeking to protect and it was precisely such a right which does not make them "a person interested" within the meaning of the Land Acquisition Act, and in regard to whom Section 50 bars interference with the proceedings. The agreement which the appellants made with the State Government was made under the provisions of the land acquisition Act and is therefore subject to its provisions.20. We may also say that there are other strong reasons why the 3rd respondent would have no right to file and pursue the present appeal. As we have already said they took no part in the writ petition at all. They were made a party though they were not a necessary party probably because they were given the right to adduce evidence and assist the Government under Section 50 (2 ). Thus they certainly had an opportunity to contest these proceedings but they did not do so and remained ex parte. The real party and upon the authorities the only party who is interested in the land acquisition proceedings namely the Government does not choose to file an appeal. In fact counsel on their behalf categorically stated before us that they did not wish to urge anything in appeal and would abide by the orders of the Court. That was their attitude also before the learned single Judge, and for a very good reason. They had realised that the acquisition and the award must be set aside having regard to the second Arora case. The petitioners in the petition were substantially challenging the notices and the notifications under Section 4, Section 6 and Section 12 of the Act. None of these notices were served upon the 3rd respondents nor were they at all connected with them. In the petition itself no relief has been asked for against the 3rd respondents. Whatever reliefs have been asked for are against the 1st and the 2nd respondents. We cannot, therefore, understand how under these circumstances the 3rd respondents can claim that they have a right of appeal. They are taking advantage of the fact that they have been made a party to the petition, to prefer this appeal. Under the circumstances, we hold that the appellants have no right of appeal and no locus standi to prefer the appeal. The appeal is dismissed with costs. The amount of Rs. 500 deposited towards the costs of the respondents be paid to them against their costs. We think that in the circumstances the costs of the two sets of respondents namely the respondents 1, 2 and 3 on the one hand and the respondents Nos. 4 and 5 on the other be quantified at Rs. 500/-

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]9. Having heard counsel on this preliminary objection, we are inclined to hold that there is much substance in the objection which is entitled to succeed and it is clear upon the authorities that the party for whom acquisition is being undertaken has no locus standi whatever except as provided in Section 50,(2) to intermeddle with the acquisition proceedings or to claim to set aside the award under Section 18. Therefore, such a party would not be entitled to challenge the same proceedings indirectly in a writ petition. We would first refer to some provisions of the law, relied on by either side, Section 18,(1) merely gives the right to have a reference made only to "any person interested" who has not accepted the award. Therefore the person who can demand a reference must be a "person interested". That expression is defined by the Act in Section 3,(b) as including "all persons claiming an interest in compensation to be made on account of the acquisition of land under this Act; and a person shall be deemed to be interested in land if he is interested in an easement affecting the land;" It was urged, therefore, that the 3rd respondent for whom the land is being acquired would be a "person interested" because it has an interest in the compensation we cannot accept this conclusion because Section 50,(2) indicates what is the nature of the interest of such a person. Itany proceeding held before a Collector or Court in such cases the local authority or company concerned may appear and adduce evidence for the purpose of determining the amount of compensation: "provided that no such local authority or company shall be entitled to demand a reference under Section 18. "therefore in express terms Section 50 takes away the right to demand a reference from the party for whom the acquisition is set on foot. Not merely does the parentby implication limit the scope and extent to which such a person can intermeddle with the land acquisition proceedings by the words "may appear and adduce evidence, for the purpose of determining the amount of compensation" but the proviso expressly takes away the right to demand a reference.Counsel sought to avoid the impact of the decisions to which we have referred above by urging that though no doubt it may not be open to the Company for whom the land is being acquired to intermeddle with the land acquisition proceedings while they are before the Land Acquisition Officer and prior to the award being made, there is nothing to bar such a person from challenging the proceedings and the award otherwise, if he can do so, that is to say, as for instance in a writ matter. We do not think that the Miscellaneous petition which was preferred in this case was any ancillary or different proceeding. In fact it was undertaken in order to challenge those very proceedings and to set aside the very award which was passed, and if a party is deprived of the right to challenge those proceedings or to question the award by the special law by which it is governed, we cannot acting under our constitutional power permit that which the law Itself has prohibited.It seems to us that despite the fact that an award was made the position of the 3rd respondent remained the same as before namely that it was still merely a company for which land acquisition proceedings had been undertaken. In this respect, considerable controversy was raised as to whether the Government had been put in possession of a part of the land thus feeding their title and completing it to that extent. We may first of all dispose of this small ancillaryas we have stated the 3rd respondents fortunately for them were made parties to the writ petition but they did not only not contest the proceedings but did not even appear and were throughout ex parte. If they had intended to controvert any statement in the petition, surely it was their duty to have controverted the statements in the petition. That they have not done so would entitle the Court to hold that this allegation made in paragraphs 1 and 15 of the petition is true at least so far as the 3rd respondent is concerned and unchallengeable so far as they are concerned, but we do not propose merely to rely upon such a technicality. The party most concerned with the land acquisition proceedings namely the Land Acquisition Officer has filed an affidavit on 22nd December, 1962 and in reply to paragraph 15 he stated in paragraph 21 "with reference to paragraph 15 of the petition I believe the contents thereof to be substantially correct". Similarly with reference to paragraph 1 of the petition also he stated in paragraph 8 of his affidavit that the contents thereof he believed were substantially correct. Therefore the only person who should be in the know of facts namely the Land Acquisition Officer has categorically admitted that what the petitioners had stated as to their possession was true. In the face of this admission of the Land Acquisition Officer himself and in the face of theof any affidavit on the part of the 3rd respondent, there can be only one conclusion namely that on the date of the petition the petitioners were in possession of the lands underthe second place, we may say that it is this same officer against whom the gravest allegations have been made in the petition that it was he who made false representations to the petitioners and that it was with his connivance that the 3rd respondents played a fraud upon the petitioners. We can hardly therefore accept the statement of this officer. At any rate it cannot be accepted in the face of the categorical admission of his superior officer, the special Land Acquisition Officer himself. Then it is further urged on behalf of the appellants that there is no doubt or dispute that proceedings were taken under Section 17 (2) relying upon the urgency clause which empowers the State Government to take possession in anticipation of acquisition. It was urged that if those proceedings did take place some lands must have been taken possession of and that fact supports the affidavit of Hathi. If possession had been taken we have no doubt that adequate documents must have been prepared but none has been filed. Apart from all that, we will assume for the sake of argument that documents may have been prepared as to possession. If they were prepared by Hathi they would in our opinion be very suspicious. What is more, it is common knowledge that in spite of receipt of possession being filed in Court and reports being made of delivery of possession the facts as to actual possession are often different. The possession according to the affidavit of Hathi of one acre of land was said to have been taken on 22nd February, 1960, but the petition was filed on 12th January, 1962, more than two years later and it is in the petition that the petitioners specifically averred that they were in possession of all the lands under acquisition. To that allegation there was not merely no reply on the part of the 3rd respondent but a positive admission on the part of the Land Acquisition Officer. It may be therefore that the fact as to possession had changed in the meanwhile between 1960 and 1962  therefore the Land Acquisition Officer admitted that possession of all the lands was with the petitioners. At any rate in this state of the record we cannot but conclude that on the date of the petition the lands under acquisition were in the possession of the petitioners.19. with this comment upon the ancillary point we turn to consider the main contention namely that the 3rd respondent acquired an interest or right de hors the Land Acquisition Act by virtue of the agreement entered into between them and the Government, which they could protect in the writ petition and therefore no provision of the Land Acquisition Act can bar them from protecting that right. We have already said that in our opinion the writ petition was nothing more or less than a continuation of the proceedings in land acquisition, for the whole purpose and the object of the writ petition was to challenge the entire land acquisition proceedings and the award made. It was not a different or new proceeding and the right which the 3rd respondent claimed was not a separate and an independent right. It was a right which they claimed as a party for whom the land acquisition proceedings were undertaken. It was this right as such a party which they were seeking to protect and it was precisely such a right which does not make them "a person interested" within the meaning of the Land Acquisition Act, and in regard to whom Section 50 bars interference with the proceedings. The agreement which the appellants made with the State Government was made under the provisions of the land acquisition Act and is therefore subject to its provisions.20. We may also say that there are other strong reasons why the 3rd respondent would have no right to file and pursue the present appeal. As we have already said they took no part in the writ petition at all. They were made a party though they were not a necessary party probably because they were given the right to adduce evidence and assist the Government under Section 50 (2 ). Thus they certainly had an opportunity to contest these proceedings but they did not do so and remained ex parte. The real party and upon the authorities the only party who is interested in the land acquisition proceedings namely the Government does not choose to file an appeal. In fact counsel on their behalf categorically stated before us that they did not wish to urge anything in appeal and would abide by the orders of the Court. That was their attitude also before the learned single Judge, and for a very good reason. They had realised that the acquisition and the award must be set aside having regard to the second Arora case. The petitioners in the petition were substantially challenging the notices and the notifications under Section 4, Section 6 and Section 12 of the Act. None of these notices were served upon the 3rd respondents nor were they at all connected with them. In the petition itself no relief has been asked for against the 3rd respondents. Whatever reliefs have been asked for are against the 1st and the 2nd respondents. We cannot, therefore, understand how under these circumstances the 3rd respondents can claim that they have a right of appeal. They are taking advantage of the fact that they have been made a party to the petition, to prefer this appeal. Under the circumstances, we hold that the appellants have no right of appeal and no locus standi to prefer the appeal