ORDER
Ramesh Madhav Bapat, J
1. All these cases relate to an abortive attempt made by the claimants in the land acquisition proceedings, to make an unlawful gain with the collusion of the persons at the helm of affair interpreting the provisions of law suit their convenience. But for the timely intervention on behalf of the State Government, this would have been yet another scam of the magnitude of ‘Yeleru Scam’.
2. In these cases, the claimants have resorted to a novel method of getting the reference applications, filed under Sections 30, 31(2) of Land Acquisition Act, and ‘ disposed of about more than one and half decade ago by the Civil Court, restored to file, got them amended as references under Section 18 and claimed enhanced compensation and also allowed other persons whose lands were acquired under the same notification, being added as parties to the restored application and got their claims for enhanced compensation decreed.
3. The brief facts relevant for the purpose of disposal of these C.R.Ps are asunder:
The Government of Andhra Pradesh acquired large extends of land, houses and house sites for the purpose of submergence in Sri Ram Sagar Project in Nizamabad District. C.R.P.Nos.1622 to 1625 and C.R.P.No.1729/95 relate to some of the said lands and houses that were acquired. Government of A.P. also acquired Ac.44.23 cents of land in Nizamabad town for extension of market yard. C.R.P.No.4022/96 and C.R.P.Nos.2279, 2280 and 2282 of 1995 relate to some of the extents of lands acquired for the said market yard. The said lands were acquired after due notifications under Section 4(1) of the Land Acquisition Act (hereinafter called as ‘the Act’) and after award enquiry, the Land Acquisition Officer also passed the awards fixing up the market value to the said acquired lands. Some of the owners of the acquired properly did not turn up either at the time of award enquiry or at the time of passing of the award. Therefore, the Land Acquisition Officer referred their cases to the Civil Court under Sections 30 and 31(2) of the Act.
4. The details in the Revision Petitions are given as under :
(i) C.R.P.No.4022 of 1996:
O.P.No. 120/76 (renumbered as O.P.No. 471/93 and matter relating to C.R.P.No.4022/96) relates to the acquisition of an extent of 2 guntas in Sy.No.3130 for the purpose of extension of market yard. The Land Acquisition Officer passed award on 16.01.1976 fixing the compensation at the rate of Rs.7,500/- per acre. As the claimant Akula Linganna, who is the son of the pattedar, failed to appear before the L.A.O.. at the time of award enquiry though served with notices, the L.A.O., made a reference to the Civil Court by his letter dated 05.03.1976 under Section 31(2) of the Act. The Civil Court took the same on file as O.P.No. 120/76. The claimant-Linganna was served with notice in person on 22.05.1976 issued by the Civil Court and as he failed to appear in Court on 18.06.1976 in pursuance of the said notice, he was set ex parts and the reference was closed. After a lapse of more than 17 years i.e. on 1.9.1993, the claimant filed I.A.No.819/93 to reopen the said O.P.No. 120/76 to order payment of compensation to him. It may be stated here that the said application was filed under Section 151 C.P.C. and not under Order 9, Rule 9 or under Order 9, Rule 13 C.P.C. It was alleged in the petitioners affidavit appended to the said petition that in the year 1975 he left Nizamabad for Bombay and returned to Nizamabad town just before filing the application and on enquiry he was informed that his land was acquired by the Government for extension of market yard and that he was informed that the case was referred to the Civil Court under Sections 30 and 31(2) of the Act and that later on he came to know that he was set ex pcirie and the case was closed and that he was not aware of the award enquiry proceedings. That application was allowed on 29.09.1993 and the matter was reopened under the inherent powers vested in Court and for the reason that a reference O.P. cannot be dismissed or closed for default. After restoration of that O.P., it was renumbered as O.P.No.471/93. As against that order of restoration, C.R.P. No.4022 of 1996 has been preferred.
(ii) C.R.P.No.2282 of 1995 After restoration and renumbering as O.P.No.471/93 the claimant filed I.A.No.944/ 93 under Order 6, Rule 17 C.P.C. read with Section 151 CPC to amend the Form of reference to one under Section 18 of the Act and for enhancement of compensation awarded to the acquired land. That petition was allowed on 06.12.1993. As against that order C.R.P.No.2282/95 has been filed. (iii) C.R.P.Nos.2279 & 2280 of 1995
After the said amendment of the O.P.No.471/93, as per order in LA.No.944/ 93, some third parties, whose properties were also acquired for the same purpose of extension of market yard under the same notification 4(1) of the Act, filed I. A.Nos.1087 and 1088 of 1993 for impleading themselves as claimants in the said O.P.471/93. The details of the lands of the said persons, which were said to have been acquired under the same award, were annexed to I.A.Nos.1087 and 1088 of 1993. The learned Judge by his common order dated 25.01.1994 allowed both the petitions. Consequently 9 claimants “were added as per order in I.A.No.1087/93 and two claimants were added as per order in I.A.No.1088/93. As against the said orders, C.R.P.Nos.2279 and 2280 of 1995 have been preferred.
(iv) A.S.No.1105 of 1994: Thereafter all the claimants filed claim statements claiming enhanced compensation. After due enquiry, the learned Additional District Judge, Nizamabad by his award dated 15.06.1994 enhanced the compensation. As against that award enhancing the compensation to all the claimants even without a reference under Section 18, the State has preferred the Appeal A.S.No.1105/94. (v) C.R.P.No. 1622 of 1995:
O.P.No.49 of 1972 is a reference under Section 31(2) of the Act made by Land Acquisition Officer, Sri Ram Sagar Project in view of the rival claims submitted by the claimants before him. After service of notices all the three claimants in that reference engaged Sri M.Ganga Reddy, Advocate on their behalf on 01.09.1972. A compromise petition was filed on their behalf through their counsel and compromise was recorded and the reference was answered on the same date i.e. 01.09.1972 stating that as per the compromise the first claimant-Gonda Chinna Rajanna alone was entitled for the entire compensation amount. Twenty two years thereafter i.e., on 07.10.1994 the first claimant-Gonda Chinna Rajanna filed I.A.No.881 of 1994 under Section 151 C.P.C. to reopen the case for conducting enquiry under Section 18 of the Act and the learned Addl. District Judge allowed that application on 16.11.1994. After restoration, that O.P. has been renumbered as O.P.No.67 of 1995. Challenging the said order of restoration, C.R.P.No.1622 of 1995 has been filed on 24,05.1995, interim stay of further enquiry has been granted and the said O.P. is still pending.
(vi) C.R.P.No.1623 of 1995 :
O.P.No.425 of 1974 is a reference under Section 30 of the Act made by the Land Acquisition Officer, Sri Ram Sagar Project in view of the rival claims set up by the parties with respect to the property under acquisition. There are three claimants in the said O.P. After service of notices, the claimants 1 and 3 appeared through their counsel and the second claimant remained ex parts. Claim statements were filed on behalf of the first and third claimants. The Civil Court by its order dated 19.11.1974 ordered for payment of the compensation amount to the first claimant- Yedma Pothanna alone in view of the fact that claimant No. 3 had already received the compensation from the Land Acquisition Officer, and thus answered the reference. About twenty years thereafter one Sri Yedma Narsimhulu claiming to be the legal representative of the deceased first claimant-Yedma Polhanna filed LA.No.882/94 on 19.10.1994 for reopening the O.P.No.425/74 for the purpose of the determination of value under Section 18 of _ the Act. That petition was allowed on 16.11.1994. As against that order C.R.P.No. 1623 of 1995 has been filed, interim stay of enquiry has been ordered and the O.P. is still pending enquiry.
(vii) C.R.P.No. 1624/95 :
O.P.No.664 of 1979 is also a reference made under Sections 30 and 31(2) of the Act by the Land Acquisition Officer, Sri Ram Sagar Project. The property under acquisition in this reference was a small temple. Aa there was no record to indicate whether the said temple was a private or a public temple and as the claimant claimed it as her private property, the Land Acquisition Officer made the reference. After service of notice, the claimant Mangali Muthamma w/o. Ganga Rani engaged the Counsel Sri P.V.Raj Ganesh. That reference was closed on 13.03.1980, as the claim statement was not filed by the claimant. But, as per order in I.A.No.505/80, dated 10.06.1980 the exparte order against the claimant was set aside and the O.P. was restored to file. The claimant also got herself examined as a witness to prove her title to the acquired temple and the reference Court passed the award on merits on 09.07.1980 to the effect that it is a private temple of the claimant and that she is entitled to receive the compensation and the reference was closed. Thereafter, the claimant by filing the cheque petition had also withdrawn the amount on 10.10.1980. Nearly fourteen years thereafter i.e. on 31.10.1994 the claimant filed I.A.No.890/94 under Section 151 C.P.C. for reopening the said O.P. for the purpose of enhancement of compensation under Section 18 of the Act and that application was allowed on 16.11.1994. As against that order of restoration C.R.P. 1624/95 has been filed, interim stay of enquiry has been granted and that O.P. is still pending enquiry.
(viii) C.R.P.No.1625 of 1995 :
O.P.No.109 of !97S is a reference under Sections 30 and 31(2) of the Act made by the Land Acquisition Officer, Sri Ram Sagar Project. That reference was made in view of the dispute amongst the claimants with regard to the apportionment of the compensation. Originally there were two claimants. After service of notice, claimant No.2 was present in person in Court and the first claimant was reported dead. Hence, his wife and minor son were brought on record as claimants No. 3 and 4 as his legal representatives. The second claimant filed a claim statement claiming no share in the compensation and the reference Court passed the award on merits on 23.09.1979 to the effect that the claimants 3 and 4 alone are entitled to receive the compensation in equal shares as the legal representatives of the deceased claimant No. 1. It is further ordered that the share of the fourth claimant, who was a minor at that time, should be kept in a fixed deposit in a nationalised Bank till he attains majority and the reference was closed on 23.09.1979. It may also be stated here that the fourth claimant after attaining majority withdrew the said amount on 15.02.1984 as per order in I.A.No.l 10/84. Nearly fifteen years after passing of the award i.e., 03.10.1994, the third claimant filed I.A.No.807 of 1994 under Section 151 C.P.C. for reopening the above O.P. 109/79 for the purpose of determination of the market value under Section 18 of the Act and the same was ordered on 16.11.1994. As againstthat order of restoration, State has preferred the C.R.P. 1625/95, interim stay of enquiry has been ordered and O.P. is still pending enquiry.
(ix) C.R.P.No.1729 of 1995 :
O.P.No.12 of 1972 is a reference under Section 18 of the Act made by Land Acquisition Officer, Sri Ram Sagar Project in view of the fact that compensation amount was received by the claimant under protest. But the Civil Court closed that reference on 30.8.1972 as the claimant failed to appear, in :pile of service of notices and after the claimant being set ex parlc. Twenty two years thereafter i.e., 10.08.1994 the claimant filed I.A.672/94 under Section 151 C.P.C. to reopen the said O.P.12/72 for enquiry under Section 18 of the Act and that petition was allowed on 16.11.1994. As against that order of reopening, the State has preferred C.R.P. 1729 of 1995, interim stay of enquiry has been ordered and the O.P. is still pending enquiry.
5. Since common questions of law are involved in all the above said Civil Revision Petitions and the Appeal, they are being disposed of by this common Judgment.
V
6. The learned senior Counsel Sri A’. Suhka Reddy appearing on behalf of the revision petitioners submitted at the Bar that firstly, the Civil Court had no jurisdiction to reopen the matter by exercising the powers under Section 151 C.P.C. which was disposed of earlier. Secondly, it was contended by the learned Counsel Mr. N. Subba Reddy that by virtue of Section 53 of the Land Acquisition Act, the Civil Procedure Code was made applicable to all the proceedings under the Land Acquisition Act. The Court has power to close a reference in default of the claimant and if the order of default has to be set aside, the claimant has to make an application under Order 9 Rule 9 C.P.C. and with a petition to condone the delay, if any. Thirdly, it was contended that I.A.No.8!9 of 1993 was barred by limitation as the application was filed beyond three years. Article 137 of the Limitation Act prescribes the period of limitation of three years. Fourthly, it was contended by the learned Counsel for the petitioner that the application I.A.No.819/93 filed by the claimant and the affidavit filed in support of the said application arc very vague and general in character. No Ostensible reasons were assigned for the delay of 17 years and therefore, the counsel prayed that I.A.No.819/93 in O.P.No.120/76 has to be dismissed by allowing the revision.
The learned Counsel Sri Subba Reddy further submitted that the reference was closed. The word “closed” is synonymous to the word “dismissed for default”. It was further contended by Mr. Subba Reddy that the other references were made by the Land Acquisition Officer under Sections 30 and 31(2) of hand Acquisition Act for apportionment of the compensation awarded and they have been disposed of on merits. Under these circumstances, the reference Court had no jurisdiction to convert the reference into one under Section 18 of the Land Acquisition Act for enhancement of compensation.
7. The learned Senior Counsel Sri K.Subrahmanyam Reddy appearing on behalf of the respondents-claimants, submitted at the Bar that when a reference was made to the Civil Court, it cannot be dismissed for default and it cannot be closed. Even if it is dismissed or closed, it has to be understood as a pending case. In support of his contention, the learned counsel relied upon a ruling reported in Vadlamanneti Damodara Rao v. The Official Receiver, Krishna And Another, A.I.R. (33) 1946 Madras 170. In this ruling, in execution proceedings the District Judge passed an order using the word “closed”. It was interpreted by their Lordships and observed that using of the word “closed” is a bad practice which was prevalent in the State of Madras, and that although the petition was closed, the attachment continued and continued at all times material to the appeal before their Lordships.
The learned Counsel Mr.K.Subrahmanyam Reddy appearing for the claimants-respondents further relied upon the ruling reported in Revana Chakradhara Lakshmi v. Revana K. Durvasidu, . In the said ruling, the word “closed” was interpreted by their Lordships and held that the word “closed” does not mean the proceedings terminated, it was held to be pending.
The third ruling cited by the learned Counsel for the respondents herein is the case in S. Nagireddy v. The Special Deputy Collector, LA. Srisailam Project, Kurnool, 1993 (2) APLJ 335 (HC). It was held by, the learned Single Judge of this Court that when the reference is made under Section 18 of the Land Acquisition Act to the Court to which the reference is made, cannot dismiss the reference for default of non-appearance of the claimant, and the Court is bound to determine the objection raised by the claimant even though he was absent on the date of enquiry.
The learned Counsel for the respondents herein further relied upon the ruling in Kolle Mallaiah v. Land Acquisition Officer, Un(SIC) If, Karimnagar, 1986 (2) (HC) APLJ 344. The learned single Judge of this Court held:
“That a bare reading of Sections 20 and 26 together clearly discloses that it is the duty of the Court to determine the amount of compensation payable for the land and it has no jurisdiction to refuse to determine it even when the claimants are absent”.
Relying upon these rulings, the learned counsel for the respondents contended that the learned Additional District Judge, Nizamabad committed no irregularity or illegality in restoring the reference petitions and also other petitions.
8 S. The learned Counsel Sri N.Subba Reddy relied upon the latest ruling of the Division Bench of this Court reported in Kuntumalla Rangappa and others v. Special Deputy Collector (LA) Jammala-madugu, (DB). It was held by the Division Bench of this Court at para (4) as under:
“4. Section 53 of the Act may be extracted usefully:
’53. Code of Civil Procedure to apply to proceedings before Court :-Save in so far as they may be consistent with anything contained in this Act, the provisions of the Code of Civil Procedure shall apply to all proceedings before the Court under this Act.
In view of such categorical provisions of the Act, Order 9 Rules 8 and 9 of the Code are applicable to all proceedings under the Land Acquisition Act. The proceed ing-under Section 18 of the Act is undoubtedly a proceeding under the Act and hence there can be no iota of doubt that both the provisions of Order 9 Rules 8 and 9 of the Code are applicable. The mailer is also made more clear from Section 141 of the Code which makes the provisions of the Code applicable to all proceedings in any court of civil jurisdiction. Obviously, the court of the Subordinate Judge, in dealing with an application under Section 18 of the Act, functions as a Court of Civil jurisdiction and hence the provisions must be applicable to the proceedings under Section 18 of the Act. The learned single Judge in referring the matter to the Division Bench rightly referred to the citations before him; A.Abbasbhai v. Collector, Punch Mahals, ; Katori Devi v. Collector. Aligarh, ; Pullamma v. Additional Special Land Acquisition Officer, AIR 1997 Kam.9 (DB). Ranto v. Collector, LAM. Estate. Faridabad, ; N.S. Ramaiah v. Special Land Acquisition Officer, AIR 1974 Karn. 122; and I. T. Commr,, Madras v. S. Chenniappti, . In making the references the learned Judge took notice of the fact that the earlier decision in Ramaiah v. Special Land Acquisition Officer (supra) has been overruled by a later Division Bench i.e., Pullamma v. Additional Land Acquisition Officer (supra). The learned single Judge in Mallaiah v. Land Acquisition Officer (supra) relied upon the decision of N.S.Ramaiah v. Special Land Acquisition Officer– (supra).”
The learned Counsel Sri N.Subba Reddy further relied on the decision of the Supreme Court reported in Rajmani v. The Collector, Raipur . In that decision their Lordships while considering the application of the provisions under Civil Procedure Code in the proceedings under the Land Acquisition Act observed that in a reference made under Section 18 of the Act the position of a claimant is that of a plaintiff in a suit and burden lies on him who seeks higher compensation, to adduce evidence and prove in the Court that the compensation awarded by the Land Acquisition Officer was inadequate and that the acquired lands possessed higher value and it is only thereafter the Land Acquisition Officer has to rebut the evidence adduced by such claimant and if the reference Court passes an award exparte after setting the claimant ex parte, it is open for the claimant to file an application under Order 9 Rule 9 or under Order 9, Rule 13 of C.P.C.
9. In the light of the above rival contentions raised by the counsel on either side, the points that arise for consideration in these matters are:
(1) Whether the restoration of the references which were disposed of earlier either for non-prosecution by the claimants or on merits under Section 151 C.P.C. in the absence of petitions filed under Order 9, Rule 9 C.P.C. is maintainable.
(2) Whether treating the reference maae under Section 30/31 (2) of the Act as a reference under Section 18 of the Act by way of amendment is justified.
(3) Whether the landholders whose lands also were acquired under the same notification are entitled to claim enhanced compensation for their lands by impleading themselves as claimants in another reference in the absence of any reference by land Acquisition Officer under Section 18 with respect to their lands.
10. Point No. 1 :
On a careful consideration of the facts and circumstances of the case, and the decisions relied on by the learned Counsel Sri N.Subba Reddy, it is our considered view that the provisions of Civil Procedure Code are made applicable to the Land Acquisition proceedings by enacting Section 53 of the Land Acquisition Act, and that it is within the jurisdiction of the reference Court to dismiss the reference applications for non-prosecution by the claimants and the provisions under Order 9 Rule 9 CPC will be applicable for restoration of the said references and the question of invoking the inherent powers under Section 151 C.P.C. alone does not arise.
11. In the instant cases there has been a delay ranging from 17 years to 22 years in filing the petitions for restoration of the references. No valid explanation is forthcoming for such restoration. The affidavit of the petitioner in O.P.No. 120/1976 appended to the petition I.A.No.819/93 is very vague. He asserts that he was away from Nizamabad and he had gone to Bombay for 17 years, but such statement without any further proof is very difficult to accept. It cannot be said that the petitioner had not visited Nizamabad during that 17 years. Moreover, it has been observed in the reference that the claimant was served with notice for award enquiry and that the claimant failed to appear at the time of award enquiry. Further, no application has been filed to condone the delay of 17 years and odd in filing the petition for restoration giving satisfactory explanation for the said delay.
12. It is contended by the learned counsel for the respondent that the petition for restoration of the reference is also maintainable under Section 151 CPC. It is no doubt true that inherent powers of the Court under Section 151 CPC are very wide and are not in any way controlled by the provisions of the Code. The only limitation put on the exercise of the inherent powers is that when exercised, they are not in conflict with what has been expressly provided for, or those exhaustively covering a particular topic or against the intention of the Legislature. Further, inherent powers are to be exercised where specific provision docs not meet the necessities of the case. While considering the scope of inherent powers under Section 151 CPC, their Lordships of Supreme Court in Nain Singh v. Koonwarjee, observed thus: “The High Court has misconstrued the scope of the inherent power. Under the inherent powers of the Court recognised by Section 151 CPC, the Court has no power to do that which is prohibited by the Code. Inherent jurisdiction of the Court must be exercised subject to the Rule that if the Court does contain specific provision which would meet the necessities of the case, such provision could be followed and inherent jurisdiction should not be invoked. In other words, the court cannot make use of the special provisions of Section 151 of the Code where a party has his remedy provided elsewhere in the Code and neglected to avail himself of the same. Further the [rower under Section 151 of the Code cannot be exercised as an appellate power”.
13. As earlier stated, the provisions under Order 9 Rule 9 of the Code are applicable for filing an application for restoration of the reference which was closed as the claimant remained ex parle. But, in the instant case, the claimants did not choose to prefer the application under Order 9 Rule 9 CPC. Thus, the claimants failed to avail the remedy available to them under the Code. But they preferred to file the application under Section 151 CPC. Further, as earlier stated, there is abnormal delay in filing the applications and no application has been filed to condone the said delay. In view of the unexplained delay in preferring the application, the exercise of inherent power under Section 151 CPC is not justified. Further, in Union of India v. Swarna Singh, , their lordships of Supreme Court held that reference Court or the High Court has no power or jurisdiction to entertain any application under Section 151 and Section 152 CFC to correct any decree as to compensation for land under L.A. Act which has become final or to independently pass an award enhancing the solatium and interest as provided under the L.A. Amendment Act 68/84.
The ratio of that decision is equally applicable with regard to the application filed for restoration of the reference closed. Thus, in our considered view, the order of the trial Court restoring the references closed long back, under Section 151 CPC is a nullity.
14. The learned Counsel for the respondents also submitted that the reference made under Section 18 of the Land Acquisition Act cannot be dismissed for default of the claimant and it cannot be closed for non-appearance of the claimant. To this proposition, we are not agreeable. The learned counsel tried to give an anology about the reference made to the High Court under the Income Tax Act. We are of the considered view that the reference made under the Income Tax Act and the reference made under the Land Acquisition Act are altogether different. In the reference made in the Income Tax Acct, no additional evidence is required to be led by any of the parties. It is only the question of interpretation of law which is applicable to the facts in the reference. Whereas in the land acquisition proceedings when the Land Acquisition Officer awards compensation and which is not agreeable to the claimant, he has to request the Land Acquisition Officer to refer the matter to the Civil Court for deciding the market value of the land acquired. The Land Acquisition Officer gives the proposal of the price which the Government is going to offer to the claimant. If the proposal is not acceptable to the claimant, then the reference has to be made to the Civil Court by the Land Acquisition Officer. In the reference made under Section 18 of the Land Acquisition Act, the claimant is required to lead oral as well as documentary evidence to establish as to what is the correct market value of the land acquired. In the absence of any evidence on that point, the Civil Court cannot answer the reference. Under such circumstances, the Civil Court has to set the claimant ex parte and to dismiss or close the reference for non-prosecution by the claimant and it has to be interpreted that the order passed by the Land Acquisition Officer has become final. Whatever the word used by the Civil Court in closing the reference or dismissing the reference, it has to be interpreted that the award made by the Land Acquisition Officer is made final. There cannot be any other interpretation than this.
15. There is yet another aspect in this matter. All the reference petitions, which are ordered to be restored, were not “closed” or “dismissed” on the ground that the claimants remained ex parte, as contended by the learned Counsel for the respondents. While narrating the facts earlier, we have observed that except in O.P.No.120/76 and O.P.No.12/72 all other references were disposed of on merits. The relative merits of the claims made by the claimants for the compensation awarded were considered and the awards were passed by the reference Court. Hence, it cannot be said that those references were closed for statistical purposes. Therefore, the restoration of the said references does not arise as they were decided on merits. Further there is no provision in the Land Acquisition Act, apart from Section 28 (A), for reopening of an award which has become final and conclusive.
16. As regards O.P.No.120/76 and O.P.No. 12/72, they were closed as the claimants after service of notices remained ex parte. In the circumstances of the cases, the said order of the reference court closing those cases cannot be faulted as there was no material available on record to decide the claims. Therefore, we are unable to accept the contention of the counsel for the respondent that all the references were closed for statistical purposes and that the claimants were justified in filing the applications for restoration of the above cases.
17. In the light of our above discussion, we hold on Point No.1 that the orders passed by the reference Court restoring the references are illegal and they cannot be sustained.
18. Point No. 2 :
By the order dated 6-32-1993 passed in I.A.No.944/93 in O.P.No.47!/93 (O.P.120/ 76) the reference Court allowed the reference made under Section 30 and 31(2) of the L.A.Act to be amended as a reference under Section 18 of L.A.Act, mainly relying on the decisions of this Court reported in 1993(2) APLJ.62 and the decision reported in 1987(2) APLJ 214. Under the former decision, this Court held that under Section 12(2) of the Act it is mandatory on the part of the LAO issue notice to the claimant and in the later decision, it is held that the scope of Section 53 of the LA Act read with order 6 Rule 17 and Section 15! CPC the reference Court has got ample powers to allow amendments in appropriate cases. In the petitioner’s affidavit appended to that petition, it is alleged that he did not participate in the award enquiry and that he had no knowledge of passing of the award till 1-9-1993 and thereafter he filed an application before the LAO for making a reference under Section 18 of the Act. It is further alleged that he was not served with notice under Section 12(2) of the Act. But as seen from the letter of reference, in spite of notice the claimant failed to appear at the time of award enquiry. While dealing with the Point No.l we have observed that the claimant failed to give proper and convincing explanation for the delay of more than 17 years in filing the restoration application. The limitation for filing application for reference under Section 18 of the Act begins to run from the moment the notice under Section 12(2) is received or as envisaged under Section 18(2) of the Act.
Section 12 provides that the award shall be filed in the Collector’s Office and shall, excep! as provided in the Act, be final and conclusive evidence as between the Collector and the person interested, whether they have respectively appeared before the Collector or not, of the true area and value of the land and the apportionment of the compensation, among the persons interested. Sub-section (2) of Section 12 mandates that the Collector “shall give immediate notice of his Award to such of the persons interested as are not present personally or by their representatives when the award is made”.
Section 18 of the Act gives right to the owner or person interested who has not accepted the award may, by written application to the Collector, require that the matter to be referred by the Collector for 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.
Sub-section (2) of Section 18 is relevant which reads thus-” The application shall state the grounds on which objection to the award is taken.
Provided that every such application shall be made :-
(a) if the person making it was present or represented before the Collector at the time when he made his award within six weeks from the date of the Collector’s award;
(b) in other cases, within six weeks of the receipt of the notice from the Collector under Section 12, sub-section (2), or within six months from the date of the Collector’s award, whichever period shall first expire”.
For clause (b) of the proviso of sub-section (2) of Section 18 of L.A.Act, the A.P. Land Acquisition (Extension & Amendment) Act 20 of 1959 substituted the following clause, namely:- “(b) in other cases within two months from the date of service of notice from the Collector under Section 12(2)“.
It would thus be clear that the person interested, who have received the compensation under protest, is required to state in his application for reference the ground on which he objects for the compensation awarded by the Collector within six weeks from the date of the award, when cither he was present or was represented by a Counsel or agent or within two months from the date of receipt of the notice from the Collector sent under Section 12(2) in Andhra Pradesh. Admittedly, no positive evidence is forthcoming to find out whether notice under Section 12(2) was served on the claimant and if so on what date. Further, admittedly the claimant has not filed application within six weeks/two months as contemplated in the Act, but he made such an application only after lapse of more than 17 years. There is no justification for such long delay in preferring such an application to the LAO. Further such an application is barred as the period of limitation of three years prescribed under Section 137 of the Limitation Act, 1963 is applicable.
19, Further, the claimant wanted the reference Court to treat the reference under Section 18 as the LAO refused to make the reference under Section 18 as desired by him. But, as seen from the record, the claimant was said to have submitted the protest application before the LAO only on 14-9-1993 and he filed I.A.No.944/93 on 14-10-1993 requesting the Court to convert the reference under Section 30 as a reference under Section 18 of the Act.
There is a distinction between the scope of Section 18 and 30. The reference under Section 18 arises on an application by a party interested, to the Collector while that under Section 30 is on the “own motion” of the land Acquisition Officer. The later is confined to questions of title while under Section 18 matters relating to measurement, compensation and apportionment are adverted to. Under Section 18 it is mandatory on the Collector to make the reference if the application is within time and satisfies the requirement of Section 18(1) and (2). Further, it should not be barred by the second proviso to Section 31 of the Act. In Section 30 the word “may” indicates that it is left to the discretion of the Collector to refer or not, but under Section 18 the reference cannot be refused on the ground that the objection was not bona fide and was frivolous. It is the province of the Court and not that of the Collector to consider the merits of the objection. As the scope under Sections 18 and 30 of the Act is distinct, we are of the view that the reference Court has no jurisdiction to convert a reference under Section 30 into one under Section 18.
20. The reference Court relied on the decision in G. Janakirama Rao v. Land Acquisition Officer, 1987 (2) A.P.LJ. 214, finding it convenient to pass such an order without considering the facts in that case. In that case, the petitioner made a request to the L.A.O. to refer the matter for enhancement of the compensation to the Civil Court under Section 18. Thereafter the matter. was referred to the Civil Court. But the reference was taken under Section 31(2) of the Act, but not under Section 18 of the Act. Hence the petitioner filed an application seeking amendment to include reference under Section 18 of the Act also. The lower Court considered it and found the reference was made only under Section 31(2) and therefore held that such an amendment cannot be permitted. On revision single Judge of this Court held such amendmenl can be ordered in view of the fact that the petitioner had made a request to the LAO to refer the matter to the Civil Court under Section 18 within time. In the instant case, the facts are entirely different. There is nothing on record to show that the petitioner in O.P.No.120/76 had made any application before the LAO for making reference under Section 18. On the other hand, it is his case that he was not aware of the acquisition proceedings. Hence the decision relied on by the reference Court has no application to the facts of this case. It has also been observed in that decision that it is only in appropriate cases that the amendment can be allowed. The reference Court for reasons best known to it allowed the amendment at the belated stage i.e. after lapse of more than 17 years. The reasons given by the reference Court for such amendment cannot be accepted in the facts and circumstances of the case.
21. For the foregoing reasons, we hold on Point No.2 that treating the reference under Section 30/31 (2) of the Act as a reference under Section 18 of the Act by way of amendment is illegal and the same is not sustai liable.
22. POINT No.3:
Having allowed the restoration of O.P.No.120/776 and having allowed amendment of the reference under Section 30 to one under Section 18, the reference Court, by the common order dated 25-1-1994 passed in I.A.No.1087 of 1993 and I.A.No.1088 of 1993, allowed 11 others to come on record as claimants and permitted them to claim enhanced compensation for their lands which were said to have been acquired along with the land of the claimant in O.P.No.120/76 (O.P.471/93) under the same notification. The said two applications were filed under Order 1 Rule 10 C.P.C. The trial Court ordered for impleading those parties as claimants to this reference for two reasons : firstly, they arc interested persons and secondly, they can get the compensation redetermined under Section 28-A in case of enhancement of the compensation in this reference is ordered and just to avoid the delay in making such application. The trial Court also relied on two decisions of this Court reported in Spl.Dy.Collector v. Vagu Sreemma Mvrlhy 1993 (!) APIJ 61 (SN) and the decision of Division Bench in Vadlamani Sarojini Devi v. Satyanaruyatia Rao 1988 (2) APLJ 275, which was relied on in the earlier CRP No.3596 of 1989 and CRPNo.2986/89. As regards the 1st ground, ‘ we arc unable to see how these added parties arc the interested persons in the reference in O.P.No.471/93 (O.P.120/76). it may be a fact that the lands of these added persons and the land of the claimant in O.P.No.120/ 76 were acquired for the same purpose and under the same notification. But they are not interested persons in the land under reference.
23. As regards the second one, for availing the remedy of redetermination of the amount of compensation under Section 28-A the conditions laid down therein are to be fulfilled. For the sake of convenience Section 28-A of the Act is reproduced and it reads thus :-
“28-A. Redetermination of the amount of compensation on the basis of the award of the Court :- (1) Wherein an award under this part, the Court allows to the applicant any amount of compensation in excess of the amount awarded by the Collector under Section 11, the persons interested in all the other land covered by the same notification under Section 4, sub-section (1) and who are also aggrieved by the award of the Collector may, notwithstanding that they had not made an application to the Collector under Section 18, by written application to the Collector within three months from the date of the award of the Court require that the amount of compensation payable to them may be redetermined on the basis of the amount of compensation awarded by the court :
Provided that in computing the period of three months within which an application to the Collector shall be made under this sub-section the day on which the award was pronounced and the time requisite for obtaining a copy of the award shall be excluded,
(2) The Collector shall, on receipt of an application under sub-section (1). conduct an inquiry after giving notice to all the persons interested and giving them a reasonable opportunity of being heard, and make an “award determining the amount of compensation payable to the applicants.
(3) Any person who has not accepted the award under sub-section (2) may, by written application to She Collector, require that the matter be refenx d by the Collector for the determination of the Court and the provisions of Section 18 to 28 shall, so far as may be, apply to such reference as they apply to a reference under Section 18.”
A reading thereof clearly indicates that the person whose land is acquired under a common notification issued under Section 4(1) of the Act but failed to avail of the remedy of reference under Section 18 is eligible to make an application within three months from the date of the award of the Court enhancing the compensation. It has been interpreted by the Supreme Court that the ‘Court’ referred to in Section 28-A means Court of original jurisdiction to whom reference under Section 18 is made/lies. The persons whose lands were also covered by the same notification but had not applied for reference are also entitled to the same compensation. But they must apply for redetermination of compensation within three months from the date of award of the reference Court excluding the time taken for obtaining the certified copy of the award.
24. It is also held by the Supreme Court in Tota Ram v. State of U.P. and others, 1997 (6) SCC 280 that limitation of three months for filing application for redeter-mination of compensation under Section 28A begins to start from the date of the award of the Court and not from the date of knowledge of the award. In the instant case, it has come on record that a reference in O.P.No.1277/77 relating to the land which was also acquired under the same notification, the reference Court passed the award enhancing the compensation of Rs.7,500/- per acre awarded by the LAO to Rs.8,000/-. But the date on which the said award was passed by the Court is not available on record. But not satisfied with the compensation awarded by the reference Court in O.P.No.1277/77, the claimant preferred the appeal to this Court in A.S.No.1324/82 and the said appeal was allowed on 4-9-1991 further enhancing Ihc compensation fixing it at Rs.50/- per sq.yard. Therefore, the order of the reference Court in O.P.No.1277/77 could have been passed by the reference Court long prior to 4-9-1991. Therefore, these claimants ought to have preferred their claim for redetermination under Section 28-A within three months from the date of that award of the reference Court. Admittedly, they failed to make any such application within the period of limitation. It is only to circumvent the said provision, these claimants have come on record by filing applications under Order 1 Rule 10 CPC. in this reference.
25. There is yet another aspect to be considered in this regard. There is nothing on record to show whether these added claimants had made any application under Section 18 for reference to Civil Court before the LAO. No evidence has been adduced before the trial Court to show that they made such applications. Hence it is difficult to accept that such applications were in fact made before the LAO within the limitation prescribed under Section 18(2) read with Section 18(2) of the Act. Therefore, their claim for being impleadcd as necessary parties under Order I Rule 10 CPC is not maintainable. In this context, the observations of the Supreme Court in Smt. Ambe Devi v. State of Bihar & another, are relevant. It is observed in para-4 thus, “The procedure prescribed under Section 18 and 30 is inconsistent with the procedure prescribed under Order 1 Rule 10 CPC. Order 1 Rule 10 CPC would apply to implead a necessary or proper party to effectuate complete adjudication upon the disputes having arisen between all the necessary or proper parties who may be bound by the decision. That question does not arise since inconsistent procedure has been prescribed under the Act. As held earlier making an application in writing under sub-section (1) and within the limitation prescribed under sub-section (2) of Section 18 are conditions precedent for the LAO to make a reference under Section 18 ; only on its receipt, under Section 20 Civil Court gets jurisdiction to issue notice and thereafter !o conduct enquiry, as contemplated under the Act. At that stage the procedure of trial etc., as contemplated under the CPC would apply and Section 53 of the Act would become applicable.” II is further observed in that decision that : “By no stretch of imagination, the application under Section 18 (1) by one of the co-sharers would be treated as one made on behalf of the other co-sharers.”
26. The decision of the Division Bench of this Court in Vodlamam Sarojini Devi ami another v. T. Satyanarayana Rao and another (supra) relied on by the reference Court has no application to the facts in this case. In that case, there was a dispute between Satyanarayana Rao and another with respect to the land under acquisition. The said Satyanarayana Rao was also a party to the proceedings before the LAO. In view of the dispute a reference under Section 30 was made in O.P.No. 122/79, but the name of Satyanarayana Rao was not mentioned in the reference. Hence he fifed an application to get himself impleaded as a party to the proceedings as a person interested. In view of the fact that his name also finds place in the reference as one of the claimants before LAO and his name has not been mentioned this Court allowed that application filed by Satyanaraya Rao for himself being impleaded as a person interested. The facts in O.P.No.120/76 are entirely different. In the same decision i.e. (11 supra) the said Satyanarayana Rao also filed an application for impleading himself as a party in O.P.No.130/79 which is a reference made by LAO on the application made by third party to refer the same under Section 18 of the Act. The reference Court rejected the application of the said Satyanarayana Rao, but on reference this Court allowed that application for the reason that he is an interested person and the reference under Section 18 is pending in the reference Court. But in that case there is no abnormal delay as in the present case in filing the application for impleading himself as a party in O.P,No.l30/79 which was pending on the file of the reference Court. In the instant case, we have already held in earlier paragraphs that the restoration of O.P.No. 120/76 and amendment of that reference under Section 18 of the Act are illegal. Therefore, the application for impleading other persons under Order 1 Rule 10 CPC after lapse of more than 17 years is also not maintainable and the same is liable to be set aside.
27. In this context, the decision of the Supreme Court in Land Acquisition Officer v. Shiva Bai and others, , is relevant, and the facts are similar to the facts on hand. In that case a writ petition was filed in this Court in 1986 by two persons claiming that they filed an application of protest, but reference under Section 18 was not made. In pursuance of the orders of this Court, the LAO made the reference in O.P.No.198/90. While that O.P. was pending enquiry, an application was filed for impleading 101 other persons claiming that they are persons interested and that application was allowed by the reference Court. On the basis thereof the reference was answered by enhancing the compensation to all the claimants. On appeal, the Division Bench of this Court confirmed the enhanced compensation. Thereafter the matter was taken on appeal to the Supreme Court. While allowing that appeal, their Lordships of the Supreme Court observed in para-9 thus : “No doubt ihey had filed the writ petition in the High Court for seeking reference. But the High Court’s Order was only for making reference on verification and to find out correct factual position. The Officer himself was in collusion with the claimants and without making an enquiry he made the reference. Subsequently, some persons impleaded to the reference. that itself indicates that all was not going well. It is now settled position in law that the claimants who receive the compensation under protest and who make application under Section 18(1) alone are entitled to seek reference; third parties, who have been impleaded, have no right to claim higher compensation by circumventing the process of refercnce under Section 18. Under these circumstances, the reference itself is without jurisdiction and barred by limitation. Thereby the award of the reference Court is clearly illegal. On appeal the High Court does not consider all these perspectives and found it convenient to rely on another judgment to uphold the award of the Civil Court. The appeal is accordingly allowed.”
28. For the foregoing reasons, we hold on Point No.3, that the order of the reference Court impleading the other claimants as parties in O.P.No.471/93 (O.P.120/76 old) is illegal and the same is liable to be set aside.
29. A.S.No. 1105/94 :
Consequent to the orders passed in restoring O.P.No. 120/76 amending the reference, adding of the parties, the reference court enhanced the compensation for the acquired lands at Rs.50/- per sq. yard with consequential benefits under the provisions of the L.A. Act. As against that award of reference Court dated 15-6-1994, this appeal has been preferred.
It is contended by the learned Counsel for the respondents/claimants that the orders passed in restoration of the reference, amendment of the reference and adding of parties got merged in the judgment under appeal and as such they cannot be now assailed independently and this Court should decline to interfere. We are unable to accept this contention in view of the pendency of the revision petitions preferred against the said orders. There would have been some force in that argument of the Counsel for the respondent if those orders were not challenged independent of the appeal. The award of the reference Court under appeal has to be set aside as the CRPs., are being allowed and the orders passed in the petitions filed for restoration of the references for amendment of the reference and for adding of parties in O.P.No. 120/76 (O.P.No.471 /93) are being set aside,
30. The learned Counsel for the respondents also contended that the impugned orders in those CRPs., are based on the earlier decisions of this Court and as such it cannot be said that the lower Court had committed any irregularity or illegality in passing those orders. We are unable to accept this contention. The lower court failed to consider the applicability of those decisions to the facts in these cases. As earlier discussed, those decisions cannot be applied to the facts in these cases. The lower court to suit its convenience for allowing those petitions, applied those decisions even though the facts are different and the petitioners failed to explain the inordinate delay ranging from 17 to 22 years in filing those applications, we do not propose to debate any further on this aspect as we are informed that disciplinary proceedings initiated against the concerned Judge are still pending.
31. In the result, C.R.P.Nos.1622 to 1625, 1729, 2279, 2280 and 2282 of 1995 and C.R.P.No.4022 of 1996 and A.S.No.1 105/94 are allowed and the orders which are challenged in the said C.R.Ps., and the Appeal are set aside. The awards passed earlier by the reference Court in all the O.Ps., stand confirmed.