A. Sambasiva Rao, Actg. C.J.
1. Dry land of an extent of Ac. 3-11 juntas out of 'Survey No. 37 in Premavathipat village was acquired for the Government of Andhra Pradesh for the purpose of establishign the Agricultural University at Rajendranagar. The notification under Section 4 (1) of the Land Acquisition Act (hereinafter referred to as 'the Act') was made on 2-11-1965. The Land Acquisition Officer gave his award determining the market value of the land, as on the date of notification at Rs. 600 per acre, though the owner of the land claimed at the rate of Rs. 3 per square yard. At the instance of the claimant, reference was made under section 18 of the Act to the City Civil Court, Hyderabad, and the same was numbered as O.P. 236/69. The second additional Chief Judge of that court enhanced the rate to Re. 0.75 per square yard by his order dated 10th December, 1970. The Special Tahsildar, who is the Land Acquisition Officer, did not prefer any appeal, but the Andhra Pradesh Agricultural University (hereinafter referred to as the University) sought to file an appeal against the order of the learned Second Additional Chief Judge. Since it was not party to the reference to the lower court, it applied for leave of this court to file the appeal. An ex parte leave was granted by this court and consequently the appeal came to be numbered as C.C.C.A. 19/72. The land acquisition officer was impleaded as 2nd respondent to the appeal. On 13th September, 1974, C.M.P. No. 8830 of 1974 was filed by the 2nd respondent for transposing him as the 2nd appellant in the appeal.
2. When the appeal with the petition for transposition came up for hearing before Madhava Reddy J., and Jayachandra Reddy, J., the learned Judges referred the entire appeal for consideration by a Full Bench. While doing so they pointed out that the primary question to be considered would be 'whether the Andhra Pradesh Agricultural University for whose benefit the land in question is acquired is entitled to prefer an appeal and if it cannot prefer an appeal as of right, whether leave could and ought to be granted to it?" The reference was occasioned by the divergence of opinion between the decision of a Division Bench of this Court in Andhra Pradesh Agricultural University v. Dan Reddy, (1974) 1 Andh LT 332, and the view indicated by another Division Bench in C.C.CA. No. 113 of 1971 (Andh. Pra.) and batch. It may be noted that in the latter decision, though the learned Judges ultimately agreed with the view of the earlier Division Bench, they indicated their preference for the opposite view. Madhava Reddy and Jayachandra Reddy JJ., themselves were inclined to agree with the opinion indicated by the latter Bench. This is how the appeal came up before the Full Bench.
3. At the hearing of the appeal the 1st respondent (owner of the land) has raised a primary objection that the University is neither a necessary nor a proper party to the proceedings taken by the Court on a reference under Section 18 of the Act and that it is not entitled to prefer an appeal against the compensation fixed by the Court on such a reference. It has been further objected to by the 1st respondent that it is not even open to the University to seek leave to the Court to prefer an appeal and the court cannot grant such leave, since the University was not and could not be a party to the reference proceedings before the lower court.
4. Before us it was conceded that the University could not prefer an appeal against the decision of the lower court as of right. This concession is quite right for the reason that the University was not a party to the proceedings in the lower Court. The appeal by the University was, however, justified on the ground that though it was not a party to the reference to the lower court, it is aggrieved and prejudiced by the high rate of compensation fixed by the court, as it is the University that should pay the compensation from out of its funds. Since it is the person for whose benefit the land had been acquired by the 2nd respondent and since it is the University that is obliged to pay the entire compensation, it is aggrieved by the high rate of compensation that has been fixed by the court below and it is consequently permissible for it to file an appeal with leave of the court. That leave has been granted and therefore the appeal is maintainable.
5. It was argued before us that the ex parte leave granted by this court is unsustainable in law learned counsel for the University did not challenge, and correctly so in our opinion, the right of the 1st respondent to question the correctness of the ex parte leave granted to the University. What was granted was only ex parte leave without notice to the affected person viz., the 1st respondent and so it should be open to the 1st respondent, when she entered her appearance, to question the correctness of the leave that had been granted t the University to file the appeal. But for the appeal, the decision of the court below became final and that is sought to be re-opened by the order made ex parte in her absence. In law and justice therefore, the 1st respondent (claimant) is certainly entitled to challenge, at the time of the final decision of the appeal, the correctness of the ex parte leave granted to the University.
6. In the light of what was conceded before us and what has been stated above, the question whether the University is entitled to prefer an appeal as a matter of right does not arise for consideration. The first part of the primary question indicated by the Division Bench which has referred the appeal to a Full Bench, has to be answered that the University for whose benefit the land in question had been acquired, is not entitled to prefer an appeal as of right.
7. Then the question which arose for decision and were debated before us are : (1) whether the University, for whose benefit the land had been acquired by the 2nd respondent, could seek leave of the appellate court to prefer an appeal against the decision of the court below determining the quantum of compensation and whether such leave cold be granted by the appellate court?
(2) Whether the petition of the 2nd respondent viz., the Special Tahsildar, who had made the land acquisition to be transposed as the 2nd appellant could be granted?
(3) If the appeal is sustainable, whether the quantum fixed by the Court below is at the proper market rate of the value of the land.
8. We have already indicated broadly what the points of view of both sides are on the first question. It was argued on behalf of the claimant, 1st respondent that the University for whose benefit the land had been acquired has no place or locus standi in the acquisition proceedings. The lis in these matters is only between the Government and the owner of the land so, the University is an outsider to the proceedings. In fact the Act specifically bars the person for whose benefit the land had been acquired from seeking any reference and limits his participation in proceedings only to adducing evidence. As such it has no locus standi to seek leave of the appellate court to prefer an appeal, nor the court could grant it. It was, however, maintained for the University that the Court below on reference under Section 18 enhanced the amount of compensation and that has to be paid not by the Government but by the University. Thus, it is the University that is adversely affected by the decision of the court below. Thought there is no provision, either express or by necessary implication, authorising the person for whose benefit the land had been acquired to prefer an appeal, courts in India have always been granting leave to aggrieved persons to prefer appeals, though they have not been parties to the proceedings before the lower court. This practice in the Indian Courts is an adaptation of the well settled English practice. That practice, as has always been followed in India, is well settled and enables the person aggrieved, though not a party to the proceedings, to seek leave of the appellate court to prefer an appeal and further enables the Courts to grant such leave in appropriate cases. What is of the essence, according to the University's point of view, is to see whether the applicant for leave is aggrieved and adversely affected by the decision of the Court below. If this requirement is satisfied, then leave is automatically granted.
9. We will first test the validity of the rival contentions with reference to the provisions of the Act. After all, that is the enactment under which the rights of the parties are affected or created. The preamble shows that the status was made for the acquisition of land for public purposes and also for companies and for determining the amount of compensation to be given on such acquisition. Clause (b) of Section 3 gives an inclusive definition of the expression 'person interested' as all persons claiming an interest in compensation. If a person is interested in an easement affecting the land, he is also deemed to be interested in land. Any person, be it the Government or a Company, who is liable to pay compensation does not come within the purview of this definition. The statute clearly states only those persons who claim an interest in compensation are brought under the head 'person interested'. The word 'claiming' is very significant. Only a person, who is liable to pay it. The idea is further reinforced by the second limb of the definition according to which a person is deemed to be interested in land if he is interested in an easement affecting the land. Again Section 5-A refers to persons interested in any land notified under section 4 (1) and enables them to raise objections to the acquisition of the land. Section 9 provides for notices to persons interested stating that the Government intends to take possession of the land and that claims to compensation for all interests in such land may be made to the Collector. An enquiry is made into the objections raised by the persons interested under Section 11 and an award is made. Section 12 declares that such award, excepting in circumstances provided later in the Act, becomes final and conclusive evidence, as between the Collector and the persons interested, of the true era and the value of the and the apportionment of the compensation among the persons interested. There cannot therefore, be any doubt that only those who have an interest in the land that is acquired and could thus claim an interest in compensation are 'persons interested' within the meaning of Section 3 (b). Neither, the Government nor the person for whom the land has been acquired is a 'person interested'.
10. This understanding of the 'person interested' becomes very material when we come to Section 18 which leads part III relating to 'reference to Court and procedure thereon'. Under sub-section (1) only a person interested, who has not accepted the award may make an application to the Collector for reference of the matter to the court for adjudication on his objections to the measurement of the land, the amount of compensation, the persons to whom it is payable or the apportionment of the compensation among the persons interested. Neither the Land Acquisition Officer nor the person for whose benefit the land has been acquired can invoke the aid of this provision and seek reference. That is patently for the reason that the Land Acquisition Officer being an officer of the State, could not have acted adversely to its interests. Further, the Government is bound by the acts and decisions of its officers. A person for whose benefit the land has been acquired cannot, therefore, seek any reference to court under Section 18. In making the reference, the Collector is required under Section 19 to send a statement for the information of the Court on the four aspects that are mentioned therein. Section 20 provides for notice of the reference only to three categories of persons viz., the applicants, all persons interested in the objection excepting such of those who have already consented without protest to receive payment of the compensation awarded, and the Collector also if his objection is in regard to the area of the land or to the amount of compensation. Section 21 restricts the scope of the enquiry in these proceedings to a consideration of the interests of the persons affected by the objections. Under Section 28 the Collector may be directed to pay interest on excess compensation. It is the Collector who shall tender payment of the compensation awarded to the persons interested entitled thereto according to the award. Section 16 clearly lays down that after making an award, the Collector may take possession of the land which shall thereupon vest absolutely in the Government free from all encumbrances. Be it for public purpose or be it for the purpose of a Company or a local authority, once the award is made on acquisition of land, it is the Collector alone that can take possession of the land and it is in the Government only that the land vests absolutely. May be as per the terms of the agreement the land will be made over later to the person for whose benefit it has been acquired by the Government. But the fact remains that once an award is made and possession is taken it automatically vests in the Government. This is a very clear indication of the intendment of the Legislature that in land acquisition proceedings and lis is only between the claimants to the land and the Government and nobody else has any place in it.
11. Let us now have to look at part VII of the Act which provides, for 'acquisition of land for companies'. That becomes necessary in this case as the land in question had been acquired not for a public purpose undertaken by the Government but for the sake of the University. Even at this juncture we would like to make it quite clear that we are not deciding the question whether the University is a Company or a local authority within the meaning of the Act. A decision on the question has become unnecessary in view of the fact that none raised it before us and both sides proceeded with the presentation of their arguments as if that Part would apply to the present acquisition. We were informed that all the requirements of the Part including entering into an agreement had been gone though. Supposing, therefore, that Part VII applies, we find nothing in it which would empower the person for whose benefit the land has been acquired to have any dealing with the owner of the land or to become a party to the proceeding either before the Land Acquisition Officer or before the Civil Court. Under Section 38 it is only the appropriate Government that authorises any officer of the company to exercise the powers under Section 4. So, without the authority of the Government, the Company cannot proceed in the matter. Section 40 prescribes that the appropriate Government shall be satisfied, after an enquiry, that the acquisition is needed for purposes useful to the public or for erection of dwelling houses for workmen. Then the company is required under Section 41 to enter into an agreement with the appropriate Government for payment to it of the cost of the acquisition for transfer of the land on payment of the amount, and the terms on which the land could be held by the Company. We have already noted that the land vests absolutely in the Government on the making of an award and after taking possession. It is seen from Section 41 that the company for whose benefit the land has been acquired, gets the transfer of the land from the Government on a payment to it the cost of the acquisition. Even then, it can hold the land only on such terms as are agreed upon under the agreement. It is thus clear that the Company's claim to the land arises only after the entire acquisition proceedings are over. That is to say, it arises only after the lis, if any between the owner of the land and the Government has been completed and the acquisition has become final. On receiving an amount, which is the cost of acquisition, the Government, which has become the absolute owner of the land, transfers it to the company. A second transfer from the Government to the company is made in which the original owner of the land has nothing to do. The rights of the Company arise only after the entire acquisition has been completed. Section 44-A further imposes certain restrictions on the Company for which the land has been acquired in transferring the land or any part thereof. This brief resume' of the provisions of Part VII only reinforces the conclusion that has been reached on an examination of the earlier provisions of the Act that the person for whose benefit the land has been acquired has no place in the actual acquisition proceedings and it is the Government and its officers alone who deal with the acquisition and participate in the proceedings relating thereto.
12. In Section 50 of the miscellaneous provisions in Part VIII the position reaches a culmination. Sub-section (20 of the section declares :
"In any 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."
Now, if there is any doubt as to the place of the Company in land acquisition proceedings until one reads this provision, this sub-section entirely wipes out that doubt and puts the position of the Company in a crystal clear state. The company or local authority is only permitted to appear to adduce evidence in any proceedings either before a Collector or Court, that too, for the limited purpose of determining the amount of compensation. The company is not permitted to do anything else even in regard to adducing evidence on any other aspect of the matter. To top it all, the proviso lays an embargo on the local authority or company from having any right to demand a reference under Section 18. This embargo is better appreciated when the proviso is read with Section 18 itself. Read together, they ring out the intention of the Legislature that the local authority or company cannot seek a reference to the court. What clearer indication could there be of the intention of the Legislature than this prohibition of the right of the local authority or Company from demanding a reference, that a local authority or company is not and cannot be a part to a proceeding either before the Collector or the Court and that the limited scope of its appearance is only to adduce evidence in regard to the amount of compensation. When the section provides both ways viz., the limited scope of the company's participation and an embargo on its right to seek a reference under Section 18 the conclusion is inescapable that the local authority or Company is not a party to the acquisition proceeding and has no locus standi therein excepting to adduce evidence. When it is not only not a party to the acquisition proceeding but also it is specifically limited to leading evidence in regard to the quantum of compensation alone, it must necessarily follow that it cannot presume to prefer an appeal against the decision of the Court.
13. The scheme of the Act which emerges from the above consideration of the relevant provisions, is that when an acquisition of land is made either for a public purpose undertaken by the Government or for the benefit of a local authority or company or any other person, the proceeding is only between the owner of the land and the Government. Even when the acquisition is made not for the Government but for somebody else the Government alone is entitled to act and acquire the land. The owner of the land can look up to the Government only for payment of compensation. He has no right or claim against the person for whose benefit the land is being acquired and the statute does not confer any such right on him. When the owner of the land does not have any claim, right or concern against the person for whose benefit the land has been acquired, how could it be postulated that he could be made to fight a legal battle with that person at the latter's will and volition. To permit it would be going against all canons of jurisprudence, justice and fair play. Likewise the person for whose benefit the land has been acquired has no claim or right against the owner of the land as such. Then how could be litigate against him? That is why this scheme of the Act makes only the owner of the land and the Government parties to the acquisition proceedings and none else. The local authority or company can only assist the Government in adducing evidence in regard to compensation and nothing else. There is a very valid reason behind this scheme of the Act. Ownership in any property or rights therein can be iterated with only by the Sovereign power and that too for a public purpose. None else can even presume to interfere with these rights of the owner of the land. The Sovereign power is vested in the State and State alone, in exercise of its Sovereign power, can acquire land or property from its owners. The person for whose benefit the land is proposed to be acquired has no place in the exercise of the sovereign power by the State. This is a patent reason why the Act has limited the scope of the lis in regard to acquisition between the owner of the land and the Sovereign State.
14. We may close the consideration of the provisions of the Act with a reference to Sections 53 and 54. Excepting in so far as they are inconsistent with anything contained in the Act, the provisions of the Civil Procedure Code are applicable to all proceedings before the Court under the Act. This is Section 53, Section 54 says that subject to the provisions of the Civil Procedure Code an appeal lies to the High Court from the award or from any part thereof made in acquisition proceedings. A further appeal is also provided to the Supreme Court from the judgment and decree of the High Court. Appeals are thus provided from the awards of the Courts to the High Court and the provisions of the Code of Civil Procedure relating to appeals from original decrees apply to land acquisition appeals as well. But that is subject to the limitation prescribed under Section 53 that the provisions of Civil Procedure Code are applicable only to the extent that they are not inconsistent with anything contained in the Act. To the extent of the inconsistency, the provisions of the Code of Civil Procedure do not apply to the land acquisition proceedings before the court.
15. Therefore, even if there is anything in the Civil Procedure Code which enables a person to prefer an appeal with leave of the Court though not a party to the proceedings in the court below, that is not applicable to the person for whose benefit the land has been acquired to prefer an appeal with leave of the appellate court against the award, because, that right is foreclosed under the provisions of the Act. The Act treats such a person as a stranger to the acquisition proceedings with whom the claimant of the land has no concern and has no right in the entire proceedings until the acquisition has been completed.
16. Even such a situation does not arise because the Code of Civil Procedure does not contain any provisions specifying or indicating as to who is entitled to appeal or who may seek leave f the court to appeal. Only Sections 4, 96, 97 and 146 and Order 41, Rule 1, C.P.C. relate to preferring of appeals. Section 4 of the Code clearly lays down that in the absence of any specific provision to contrary nothing in the Code shall be deemed to limit or otherwise affect any special or local law now in fore or any special jurisdiction or power conferred or any special form of procedure prescribed by or under any other law for the time being in force. When this saving provision of the Code is read with Section 53 of the Act, it becomes manifest that the application of the procedure of the Civil Procedure Code to the proceedings under the Act is permissible only when that is not inconsistent with the provisions of the Act. Section 96 only says that an appeal shall lie from every decree passed by any court exercising original jurisdiction to the court authorised to hear appeals from the decisions of such court. Section 97 relates to appeals from final decrees where there has been no appeal from the preliminary decree. If any party aggrieved by the preliminary decree has not preferred an appeal against it, he is not prevented from disputing its correctness in any appeal which he may prefer from the final decree. It is significant that this section refers only to a party aggrieved. Section 146 lays down that where any proceedings may be taken or application made by or against any person, then the proceeding may be taken or the application may be made by or against any person claiming under him, but this is subject to any law for the time being in force and the other provisions of the Code. In addition to the important circumstance that the Act does not permit the perform for whose benefit the land has been acquired to prefer an appeal, he cannot be said to be a person claiming under the Government which has been a party to the acquisition proceeding before the lower court. As we have seen from the provisions of the Act, such person's right arise only when the acquisition has been completed. So, in the land acquisition proceedings he cannot be said to be claiming under the Government. Section 146 does not, therefore, help the University in seeking leave of the court. Order 41, Rule 1 only prescribes the form of appeal and does not say who may prefer appeals. It is also pertinent to notice that there is no provision in the Code which says that appeals can be preferred by persons, who have not been parties to the proceedings before the lower court, with leave to the court.
17. What emerges from the above consideration is that the person for whose benefit land has been acquired, the University in this case, could not be a party to the reference even if it applied to be added as one. This is clearly prohibited by the provisions of the Act. A person, who could not be made a party to a proceeding in the lower court, could not, by any stretch of imagination, be made a party in the appeal against that decision, much less an appellant. The person for whose benefit land has been acquired is a person excluded from the reference proceedings before Court and it would be preposterous in principle and in law to say that he could prefer an appeal with leave of the Court. It should be remembered that an appeal is only a continuation of the proceeding in the court below and a person who had no place in the proceeding before the court, could not presume to prefer an appeal and the court cannot grant him leave. Further an appeal against the award given by the court on a reference under Section 18 is appealable to the High Court under section 54 of the Act and not under section 96 C.P.C. Only the provisions of the Code of Civil Procedure to the extent that they are not inconsistent with anything contained in the Act are made applicable to such appeals. Since the right of appeal is conferred under the Act itself, it is from it alone that an answer as to who could prefer an appeal can be gathered. Since the person for whose benefit land has been acquired is excluded from the reference proceedings, before Court, it must follow that he cannot prefer an appeal to the High Court either with or without leave of the High Court. Order 1, Rule 10, C.P.C or the inherent power of the court under Section 151, C.P.C. cannot be invoked while preferring those appeals to the extent that they are inconsistent with the provisions of the Act. Thus, on principle and on the statute it can be concluded that the University has neither a right to prefer an appeal (which was conceded before us) nor has it any locus standi to prefer one with leave of the appellate court. This is the conclusion we reach on an examination of the legal principle and the scheme and the provisions of the Act and also the material provisions of the Code of Civil Procedure.
18. We will proceed to notice how courts in India have assessed the position in the land acquisition proceedings of a person for whom land has been acquired by the State. In the Municipal Corporation of Patna v. Jogendra Narain Rajkut (1909) 13 Cal WN 116 a Division Bench of the Calcutta High Court held that a company or Corporation for whose benefit any land may be acquired by the Collector is not a necessary party in land acquisition proceedings. Section 50 of the Land Acquisition Act allows such company or Corporation has no power to ask for a reference under Section 18 of the Act nor has it the right to appeal against the decree made upon a reference. Learned Judges also held that the Secretary of State of India in Council was directly interested in the ascertainment of the amount of compensation ad no proceeding upon a reference could be valid in his absence. The same High Court in Mahananda Roy v. Srish Chandra Tewari, (1910) 7 Ind Cas 10 (Cal) considered the question of adding persons, who were not parties to the reference, as parties before the Civil Court. Two learned Judges held that the addition of parties by the Civil Court who have not been made parties to the reference by the Collector, is wholly inconsistent with the Land Acquisition Act and therefore the Civil Court cannot add such parties to the land acquisition proceedings before it. Since at that time Burma was part of India, we may also refer to a decision of the Rangoon High Court in Mandalay Municipal Committee v. Maung, AIR 1929 Rang 115 a Division Bench of that court understood the expansion 'person interested' as a person interested by reason of his interest in the land acquired as owner, tenant and the like and not a person interested as acquiring the land through the Secretary of State. Such a person is not entitled to separate notice under Section 20 though he has the right to appear and adduce evidence. Rajamannar C.J. held in C.R.P. No. 1235/54 24-9-1954 = 1954 Mad WN (SN) 128 the Section 50 (2) of the Land Acquisition Act provides that the authority or company for whose benefit the acquisition was made may appear and adduce evidence for one particular purpose viz., the purpose of determining the amount of compensation and the authority or company cannot be permitted to take part in the arguments on the petition. Subba Rao C.J. and Bhimasankaram J., in Gopalacharyulu v. Rudra Veeranna, held that the inherent power vested in
courts under Section 151 cannot be invoked where the procedure to be adopted in a particular case or class of cases expressly provided for by the Code. Applying the principle to a person for whose benefit land has been acquired, he cannot rely on the inherent power of the court to enable him to be a part to the proceeding or to appeal against the award of the lower court contrary to the scheme of the Act under which the land has been acquired. A single Judge of the Bombay High Court held in Nagpur Corporation v. Narendrakumr that
sub-section (2) supra of Section 50 expressly and in terms controls Section 18 and takes away the right from the local authority or company for whom the land is being acquired to demand a reference under Section
18. The learned Judge relied on the Municipal Corporation of Patna v. Jogendra Narain Rajkut, (1909) 13 Cal WN 116 (supra). In Hilkarini Sabha v. Jabalpur Corporation, two learned Judges of the Madhya Pradesh High Court expressed the view that the power of an appellate court are restricted to the same powers which the original court exercises. If that is so, the High Court which is the appellate court, cannot entertain an application for leave to appeal sought by the University which had no place before the lower court excepting to adduce evidence. A Division Bench of the Orissa High Court expressed a similar view in State v. Amarendra Pratap, , Reading together Sections 3 (b), 18, 20, 21 and 50 the learned Judges held that a company or a local authority for whose benefit the acquisition was made is not entitled to demand a reference under Section 18 and is not a necessary party to such proceedings, though it can in any proceeding before the Collector or the Court appear and adduce evidence for the purpose of determining the amount of compensation. It also follows, so the learned Judges hold, that it has no right to file any appeal against the judgment of the Court. It was further held that Section 20 makes no provision for the issue of a notice to the company and the State acquiring the land in question for the benefit of the company is to safeguard the interests of the company and is expected to give it the necessary intimation regarding the pendency of the proceeding under Section 18 for adducing evidence, if any. The learned Judges went to the extent of observing that where the court's judgment inadvertently mentioned the company's name in the cause title, it must be held that it must be ignored.
19. A local authority for whose benefit land has been acquired invoked to its aid Order 1, Rule 10 C.P.C. before the Gujarat High Court. A Division Bench of the High Court repelled this claim in Gautamlal v. Land Acquisition Officer, by holding that in view of the specific provision under Section 50 (2) of the Act for advantage of local authority having right to adduce evidence before court, it cannot invoke the provisions of Order 1, Rule 10, C.P.C. to its aid. It was also laid down that by reason of its being directed to appear and adduce evidence, the local authority does not become necessary or even proper party in the proceeding under the Act. A necessary or a proper party is one against whom there is any relief claimed or that his presence is so essential to enable the Court to effectively decide any such claim. No such right is conferred on the company or local authority, under the Act. That right is given to the Government through its representative, the Collector, and to no other.
20. A Division Bench of this Court considered the aspect in great depth in M.M.M.M Trust v. C. Varada Raju, , Kondaiah J., and Sriramulu, J., held that local authority or company is not a person interested and as such not entitled to be impleaded in proceedings under the Act, that local authority or company is neither necessary nor proper party to the proceeding under the Act and that Order 1, Rule 10 and section 151, C.P.C. cannot be invoked by it in view of Section 50 (2) of the Act. Kondaiah, J., speaking for the Bench observed that the scheme of the Act appears to be that the State represented by the Collector would sufficiently safeguard the interests of the local authority or company for whose purpose the land is acquired and such company or local authority may seek redress of their grievances, if any, through the Collector. The Division Bench further held that by enacting the special provision of Section 50 (2) the general application of Order 1, Rule 10 and Section 151, C.P.C. must be held to have been positively excluded. In S.M. Singh v. Punjab University, land was acquired for the Punjab University. The
claimant sought to prefer an appeal in regard to the quantum of compensation against the University. A Division Bench of the Punjab and Haryana High Court held that the acquisition was made by the Government for the benefit of the University and therefore when an appeal is preferred by the claimant, it must be against the Government and not the University. It, therefore, held that an appeal filed making only the University a parry was incompetent. A Division Bench of the Orissa High Court laid down in Titagarh Paper Mills v. State that the company for whom land acquisition proceedings were undertaken could not challenge the award by a writ petition under Article 226 of the Constitution as the right of the company, if any, was too slight and too remote for it to be treated as a person aggrieved by the award. The same view had been taken by a Division Bench of the Bombay High Court in H.T. & M. (Pvt.) Ltd., v. Francis, . It was held there that the party for whom acquisition was undertaken had no locus standi to claim to set aside the award under Section 18 and that such party would not be entitled to challenge the same proceeding indirectly in a writ petition. The above case lend overwhelming support to the view we have taken.
21. However, two decisions are cited saying that they have taken a contrary view. When a society for whom land had been acquired sought to be added as a party in a writ petition in which the validity of the acquisition proceedings was challenged, a Division Bench of the Allahabad High Court, in K.B. Co-operative Housing Society v. Satya Devi, held that the society was interested in the
acquisition of the land and as such was a proper party within the meaning of Order 1, Rule 10, C.P.C. In H.S. & Industries v. State, , a learned single Judge of the Punjab and Haryana
High Court also took the view that a person, who had to pay the compensation, can be impleaded as a party under Order 1, Rule 10, C.P.C. in a proceeding before Court under Section 18. With respect to the learned Judges we cannot accept this view. In our considered opinion, this is repugnant to the scheme and principle of the Act besides being opposed to decisions of this and several other High Courts. So, we cannot place any reliance on these two decisions. It is, therefore, clear that the person for whose benefit land has been acquired has no place in the an proceedings before the Land Acquisition Officer or before court.
22. The University's learned counsel, however strongly relied on the English practice which has been imported into and adopted by Courts in India. His submission is that though the Civil Procedure Code does not lay down as to who could prefer appeals. Courts have developed the concept of enabling the persons aggrieved, prejudiced or bound by the decision of the lower court to prefer appeals with leave of the Court. Even though a person was not a party to the proceeding before the court below, he could nevertheless prefer an appeal with the leave of the appellate court. That leave is generally granted if that person is aggrieved, prejudiced or bound by the decision. This is by way of adaptation of the English practice. Founding his claim on this practice he asserted that the University, which is aggrieved by the quantum of compensation fixed by the lower court, is free to apply to this court for leave to appeal and the Court is fully justified in having granted the ex parte leave.
23. Let us now test the validity of the argument. In order to do that, we must first know what precisely is the English practice in this behalf. That is stated in the Annual Practice (1961 Edition) Volume 1, at page 1658 thus :--
"Any party to the action may appeal for example, one alone of several plaintiffs and also any person served with notice of the judgment or order under Order 16, Rule 40. But in addition, in accordance with old Chancery Practice, any person may appeal by leave (obtained on ex parte motion to the court of appeal). If he could by possibility have been made a party to the action by service."
24. The practice is stated to a similar effect in Halsbury's Laws of England (III Edition) Volume 30 page 461 in the following terms :
"A person who is not a party and who has not been served with such notice, cannot appeal without leave, but a person who might properly have been a party, may obtain leave to appeal."
Seton on Judgments and Orders (7th Edition) Vol. 11 at page 824 states the practice thus :--
"Where the appellant is not a party to the record he can only appeal by leave to be obtained on motion ex parte from the court of appeal ...... Leave to appeal will not be given to a person not a party unless his interest is such that he might have been made a party."
Those are the basic statements of the practice that obtains in England and it is this practice that has been followed in India as well. Before we refer to judicial pronouncements, we would like to emphasis the qualification contained in the above three statements of the practice that a person who might have been properly made a party, may obtain leave to appeal, and that leave to appeal will not be given to a person not a party unless his interest is such that he might have been made a party. This is a very crucial condition to be satisfied before leave is granted to a person who had not been a party to the proceeding before the lower court.
25. Of the English cases, reference to In Re Securities Insurance Company's case (1894) 2 Ch 410 would be sufficient, as learned counsel for the University placed very strong reliance on passages in it. Before we refer to the observations in the judgment, it is necessary to notice the facts of the case. A Judge made an order sanctioning an arrangement under the Joint Stock Companies Arrangement Act. Some creditors, who did not oppose the scheme at the meeting of creditors nor appeared before the Judge when the sanction was applied for, presented an appeal saying that their interests as creditors were affected by the scheme. They filed the appeal without obtaining leave. The court of the appeal rejected the appeal holding that a person not a party to the proceedings could not appeal against the Order without the leave of the Court. It was also fund that the case was not one in which leave could be given.
26. We will now refer to the observations of Lindley L. J. on which the University's learned counsel laid great stress. They are at page 413 and read as follows:--
"Now, what was the practice of the Court of Chancery before 1862 and what has it been since? I understand the practice to be perfectly well settled that a person who is a party can appeal (of course within the proper time) without any leave, and that a person who without being a party is either bound by the order or is aggrieved by it, or is prejudicial affected by it, cannot appeal without leave. It does not require much to obtain leave. If a person alleging himself to be aggrieved by an order can make out even a prima facie case why he should have leave he will get i; but without leave he is not entitled to appeal."
Relying to this passage learned counsel argued that if a person was bound by the order or was aggrieved or was prejudicial affected by it, that circumstance would be sufficient for him to apply for and secure leave from the appellate court. If he makes out a prima facie case why he should have leave, he should get if. If the passage is read out of its context and without relation to facts, it may tend to help the University's contention. Realising the danger of relying on passages taken off-hand from decision without reference to the facts and the ratio decidendi of the case, we examined these observations in the light of the facts. The persons, who preferred the appeal, could not only have opposed the scheme at the meeting of the creditors but also could have appeared before the Judge when the sanction was applied, since they were themselves creditors. As they could have been parties to the proceedings before the Judge, they could have sought leave to prefer an appeal as they were aggrieved by the order. This passage of Lindley, L.J. is thus wholly in accordance with the practice which obtained in England and extracted above. Further light comes from the same opinion. We may usefully quote the paragraph which immediately succeeds the one which was relied on by the learned counsel. It is in the following terms and occurs at page 413 itself :
"In this particular class of cases, it appears to me that that practice ought not to be lightly departed from. It would be in the highest degree inconvenient if, after a Judge had sanctioned a scheme, persons who did not take the trouble to attend the proceedings could without leave embarrass the proceedings by giving notices of appeal within three weeks. It would be a course which many people would be very glad to adopt, and we are not disposed to facilitate such conduct. I think the rule under the old Chancery practice is perfectly well settled; and even in the winding-up of the companies with which I was once familiar, I do not recollect a case of a person who alleged himself to be aggrieved appealing without leave, unless he had in some way or other made himself a party to the proceedings."
Kay L.J. in his opinion agreeing with Lindley, L.J. says this at page 414 :
"These persons which now want to appeal had the opportunity of being present at those meetings. They were there, we are told, either in person or by proxy, and they did not oppose the scheme. They had the power of being present when the Judge sanctioned the scheme, and of opposing the application for his sanction."
All these passages clearly show that the learned Judges did not in any way depart from the practice, which was in vogue in their own country by holding that any person though he could not have been a party to the proceeding in the court below could prefer an appeal with the leave of the court."
27. Coming to the decisions of the Indian Courts, we will first refer to the decision of Chagla, C.J. and Bhagwati, J., in Bombay Province v. W.I. Automobile Association, AIR 1949 Bom 141. There was a dispute between an Automobile Association and its workers regarding certain demands of the employees. There was a strike by the employees and the Government of Bombay issued a notification under the Industrial Disputes Act constituting an Industrial Tribunal and referring to it the various disputes which were pending between the Association and the workers. The employer challenged the jurisdiction of the Tribunal in a petition for the issuance of a writ of certiorari. A single learned Judge disposed of the writ petition holding that the Industrial Disputes Act did not apply to the employer association but held that it was not competent to the Tribunal to consider the question of reinstatement of the dismissed employees and therefore issued a writ of prohibition against the Tribunal restraining it from entering upon any enquiry or giving any direction on the question of reinstatement. The Province of Bombay preferred an appeal against the order. It was not a party to the petition although under the direction of the learned Judge notice was served upon it and pursuant to that notice, it appeared before the learned Judge and submitted its point of view. A preliminary objection was taken to the maintainability of the appeal by the Province of Bombay on the ground that it was not a party to the writ petition. Chagla, C.J. in his opinion held that a person, who is not a party to the suit, may prefer an appeal if he is affected by the order of the trial court provided he obtains leave from the court of appeal. Whereas in the case of a party to a suit he has a right of appeal, in the case of a person not a party to the suit who is affected by the order he has no right but the court of appeal may in its discretion allow him to prefer an appeal. Bhagwati, J., in his separate judgment observed at page 149 :
"There is no right of appeal vested in him by any of the provisions of the Civil Procedure Code or by any other provision of law. The only remedy open to him, if his interests are adversely affected or if he is aggrieved by a decision of the court, is to approach the appellate court and ask for leave to appeal which the appellate court would grant in proper cases."
Then the learned Judge referred to the observation of Lindley L.J. in In re Securities Insurance Company's case (1894) 2 Ch 410. Finally the learned Judge held :
"The Province of Bombay had not obtained any such leave to appeal and had filed the appeal as if in exercise of a right to do so. This position was certainly not tenable and under the circumstances of the case we thought it proper to give the Province of Bombay leave to appeal but on terms that the Province of Bombay do pay all the costs up to the time when the leave to appeal was granted by us."
Once again these observations will have to be understood in the light of the facts. The Province of Bombay, as the authority which had referred the dispute to the Tribunal, was at least a proper party to the writ proceeding. It could have easily brought itself o record in the writ proceeding. In fact, notice was sent to it on the direction of the court and it appeared before the court and made its representation. Therefore, when understood in the light of this clear feature of the case, the decision in this case would fall into line with the practice imported from England.
28. The next decision relied on by the learned counsel for the University is P. Ammal v. State of Madras, ,
Rajamannar, C.J. speaking for himself and Venkatarama Aiyer, J., observed at p. 490 :
"The provisions as regards appeal in England are not materially different from those contained in the Civil Procedure Code or Letters Patent. In neither of them is there are express mention of persons who could appeal. In our opinion, the practice consistently followed by the English Courts is just and equitable practice and is in no way inconsistent with the doctrine that the right of appeal can only be created by statute. With respect to the learned Judges of the Bombay High Court (Bombay Province v. W.I. Automobile Association (supra) we agree with them that there is no reason why the practice should not be followed by courts in India."
Continuing the learned Chief Justice said :
"Now what is the test to find out when it would be proper to grant leave to appeal to a person not a party to a proceeding against the decree or judgment in such proceedings? We think it would be improper to grant leave to appeal to every person who may in some remote or indirect way be prejudicially affected by a decree or judgment. We think that ordinarily leave to appeal should be granted to persons who, though not parties to the proceedings, would be bound by the decree or judgment in that proceeding and who would be precluded from attacking its correctness in other proceedings."
This is the passage on which strong reliance was placed by the University. From this it was sought to be spelled out that the learned Judges were of the opinion that even if the person, who sought leave to prefer the appeal, could not have been added as a party to the proceeding in the court below, he should be granted leave if he is bound by the decree or judgment or if he is precluded from attacking its correctness in other proceedings. This understanding of the decision is unwarranted if the facts of the case and the reasoning of the learned Chief Justice are noticed. It is not necessary to give details of the facts. But it is sufficient to notice the clear circumstances that the appellant was a person who could have been added as a party to the proceeding in the lower court. In fact it was observed in paragraph 8 that the appellant was vitally interested in the subject-matter and felt aggrieved by the order passed in the writ petition. While dealing with the preliminary objection as to the maintainability of the appeal by a person, who was not actually a party, the English practice and the decision of the Bombay High Court in Bombay Province v. W.I. Automobile Association (supra) and thereafter the following meaningful passage occurs at p. 489 :--
"Several instances are referred to in the foot-note and the limits of the rule can be gathered from these instances. Leave will not be given where the applicant could not have been a party and the application for leave must be made within the time limited for the appeal. The reason for the practice apparently is the principle that a person, who could have been made a party and who might have appealed, could not afterwards bring an action to declare that the judgment or order was not binding on him."
This statement of the practice fully supports the view we have taken.
29. Strong reliance was put on a Bench decision of the Kerala High Court in Executive Officer v. Raghavan Pillai, for
the University. Following the Madras and Bombay cases, a Division Bench of the Kerala High Court held that while a party to a suit against whom the judgment is given can appeal against it as of right, a person who is not on the party array but who is bound by the decree or whose interests are prejudicially affected by it may appeal with the leave of the appellate court. Once again this is a case where the appellant was a person who could have been made a party to the proceedings in the lower court. In fact it was the appellant that was obliged to pay whatever amount was decreed to the plaintiff in that suit and would have been at least a proper party before the Court below. Understood in the light of this circumstance this decision is also in accordance with the practice stated above.
30. A Full Bench of this court dealt with this question in D. Pullayya v. A. Nagabhushanam, AIR 1962 Andh Pra 140 (141) (FB). The question there was whether certain lands were a minor inam or an estate within the purview of Section 2 (d) of the Madras Estates Land Act. A suit was filed contesting the decision of the Tribunal that it was an estate. Only the State of Andhra Pradesh was originally impleaded as party. On an objection raised by the Government a few ryots were impleaded as parties after obtaining the necessary permission under Order 1, Rule 8, C.P.C. Some other villagers also got themselves impleaded as defendants 6 to 9. The trial court held that the lands did not constitute an estate. None of the tenants, who were defendants, preferred any appeal. But other ryots of the village, represented by the petitioners before the Full Bench, sought to file an appeal with the leave of the court. From these facts of the case, it is clear that the petitioners before the Full Bench could have been added as parties to the suit in the trial court. On a review of the practice relating to appeals by persons who were not parties to a litigation in the lower court and the decisions thereon. Chandra Reddy, C.J. giving the opinion of the Full Bench stated this at page 145 :
"What emerges from the above discussion is that if a person is deemed to be a party under Order 1, Rule 8, C.P.C. and for purposes of Section 11 Explanation VI C.P.C. leave to appeal could be granted to him by the appellate court in an appropriate case if the decision rendered in those proceedings would adversely affect him."
Proceeding, the learned Chief Justice observed :
"It is needless to say that it would be illogical to hold that while a person is deemed to be a party to the proceeding and would be bound by the judgment rendered against him in the representative capacity be would not be permitted to file an appeal against the decree if the person who is actually a party to the proceedings does not choose to carry the matter in appeal against that decree or order."
31. The petitioners before the Full Bench were thus deemed to be parties to the proceeding in the lower court, as they were represented by the defendants on record by virtue of the leave granted under Order 1, Rule 8. C.P.C.
32. Another Full Bench of this Court in Radha Bai v. B. Chinnayya, (FB) followed the above decision. Posing the
questions "that being so, could it be said that respondents 1 and 2 are not entitled to file the appeal?"
Seshachalapathi, J., who spoke for the Court, answered it in the following terms at page 360.
"They are certainly persons who are adversely affected by the order of the Tahsildar. They would have certainly been proper parties to be brought on record during the pendency of the application before the Tahsildar. In these circumstances we hold that the order of the Collector granting leave to the respondents 1 and 2 to file the appeal is correct."
33. Now let us see what the Supreme Court of India has said on this problem. An argument was raised before the Supreme Court in N. Setharamaiah v. Kotaiah, that the appellant before it was not impleaded as a party to the writ petition in the High Court and so he could not seek redress in a superior court. Shah, J., (as he then was) repelled this argument by saying :
"But it is settled by a long course of authorities that a person who has not been made a party to a proceeding may still appeal with leave of the appellate court, provided he might have properly been made a party to the proceeding."
34. In support of this view, the learned Judge relied on In re Securities Insurance Company, (1894) 2 Ch 410 (supra) : Bombay Province v. W.I. Automobile Association, AIR 1949 Bom 141 (supra); P. Ammal v. State of Madras, (supra) and D. Pullayya v. A.
Nagabhushanam, AIR 1962 Andh Pra 140 (141) (FB) (supra). In Jatan Kanwar v. Golcha Properties, Grover, J., observed at page 376 :
"It is well settled that a person who is not a party to the suit may prefer an appeal with the leave of the appellate court and such leave should be granted if he would be prejudicially affected by the judgment."
It was a case under the rules a notice of the summons should have been issued to all persons who would be prejudicially affected by the decision of the court. It is thus a case where the appellant should have been a party to the proceeding in the lower court. Punjabi University v. A.S. Ganesh, is a case relating to
Punjab University for whose sake the Government of Punjab had acquired some land. An appeal against the award of enhanced compensation of land acquired for the Punjabi University was filed jointly by the University and the State Government two days beyond the limitation due to a bona fide miscalculation of the period of limitation by the counsel for the University. The High Court refused to condone the delay on the ground that there was no explanation from the State Government which had primarily the right to file the appeal. The Supreme Court, while condoning the delay held that the party, which was essentially interested in filing the appeal, was the Punjabi University and the Punjab Government was only fighting the case for the University. This case is not an authority for the proposition that the University could maintain an appeal since the question did not arise before the Supreme Court. What all the Supreme Court was called upon to decide was whether there was satisfactory explanation for the delay in preferring the appeal before the High Court. So, it is only a decision on the question of limitation. Further, the fact remains that in the appeal not merely the University but the Government itself was an appellant. So, the existence of the Punjabi University as an appellant was incidental and inconsequential. Lastly, there is the recent case of the Supreme Court in State of Punjab v. Amar Singh, Krishna Iyer, J., speaking for the majority, said that the State, which was not a party to the proceeding, was not bound by the decision. Repelling the argument that the State could have preferred an appeal or sought a review of the order, learned Judge stated at page 1006 thus:
"As a matter of fact, the State, which is not a party to the proceedings, does not have a right of appeal. The ordinary rule is that only a party to a suit adversely affected by the decree or any of his representatives-in-interest may file an appeal. Under such circumstances, a person, who is not party, may prefer an appeal with the leave of the appellate court if he would be prejudicially affected by the judgment and if it would be binding on him as res judicata under Explanation VI to Section 11."
Sarkaria, J., in his minority opinion, said that the State Government or its department could, if aggrieved or prejudiced by such a decision, go in appeal or revision against it. Thereafter, the learned Judge observed at page 1016 :--
"Firstly there is a catena of authorities which following the doctrine of Lindley, L.J. in In re Securities Insurance Company, (1894) Ch 410 have laid down the rue that a person who is not a party to a decree or order may with the leave of the court, prefer an appeal from such decree or order if he is either bound by the order or is aggrieved by it or is prejudicially affected by it. As a rule, leave to appeal will not be refused to a person who might have been made eo nomine a party."
The University's learned counsel very much relied on this observation thinking that the learned Judge had laid down that the circumstances that a person might have been made eo nomine party to the proceeding in the lower court is only one of the enabling circumstances to secure leave like his being bound by the order or being aggrieved or being prejudicially affected by it. So, it was argued that a person in order to seek leave to prefer an appeal need not be a person who might have been made eo nomine party in the lower court. Apart from the fact that Justice Sarkaria, J's opinion is a minority view--and we have already extracted the opinion of the majority--we are unable to understand Justice Sarkaria's view in the way in which the University's learned counsel wanted us to do. If adding a person who might have been made eo nomine party is one of the four circumstances and not a necessary requirement, then it would lead to the preposterous result that any person, who might have been made eo nomine party in the Court below, could seek leave to appeal even though any one of the three features does not exist. Leave will then have to be granted even if such a person is not bound by the order or is aggrieved or prejudicially affected by it. It is well known that even a regular party to a proceeding cannot prefer an appeal unless he is bound by the order of the lower court or is aggrieved or prejudicially affected by it. So, what the learned Judge has opined is that a person, who might have been made eo nomine parry, is granted leave to prefer an appeal as a rule, if he is either bound by the order of the lower court or is aggrieved or prejudiced by it.
35. Now, in the light of what we have said above, we will consider the rulings of this Court which have been the reason for reference of this matter to a Full Bench. The first of them is that of Chinnappa Reddy J., sitting singly in A.P. Agricultural University v. B. Gangamma, . The same University was the appellant in the appeal before the learned Judge, complaining against the quantum of compensation granted by the court below. Chinnappa Reddy, J., opined that the lis, if any, is between the Government and the claimant, and the person for whose benefit the land was acquired and who may ultimately pay to the Government the cost of the acquisition has nothing to do with the lis. The fact that the land was acquired for the benefit of a person, who may therefore have to meet the cost of acquisition, is not sufficient to clothe him with the mantle of a party or give him the right of appeal so as to litigate against the claimant.
36. The same learned Judge sitting with one of us (A.V. Krishna Rao J.) reiterated the view in A.P. Agricultural University v. Dan Reddy (supra). Once again the appellant there was the same University. Learned Judges held that the person for whose benefit the land was acquired has no place in the lis between the Government and the person whose land was acquired and is neither a necessary nor a proper party to the proceedings in Court. For all that the persons whose lands are acquired care, the arrangement may be that the Government should give the land to the appellant free of cost or at a nominal price or at a concessional price or on payment of the full cost of acquisition. The persons whose lands are acquired have no concern with the arrangement. The person for whose benefit the land is acquired cannot be said to be directly affected by the award between the Government and the persons whose lands are acquired. A person who is not a party to a proceeding may have properly been made a party to the proceeding or if he is bound by such proceeding being deemed to be a party to it. It cannot be said that the agricultural University may have properly been made a party to the proceeding in the lower court or be deemed to be a party to it. In fact, the University would not in law be a party or deemed to be a party to the proceeding, since the scheme of the Land Acquisition Act specifically excludes it from the proceeding. The Agricultural University is not therefore, entitled to be granted leave to appeal. This view wholly accords with the opinion we have expressed above. In our judgment, this is the proper perspective and view point to be taken on the question of granting leave to the University to prefer an appeal against the quantum of compensation awarded in the lower court.
37. Ramachandra Rao and Raghuvir, JJ., were inclined to take the opposite opinion in C.C.C.A. 113/71 etc., though eventually the learned Judges did not take a different view from the one expression by the Division Bench in A.P. Agricultural University v. Dan Reddy (supra) and in fact followed it. That was also an appeal preferred by the University against the quantum of compensation. It was pointed out that there appeared to be considerable force in the contention of the learned counsel for the University that it was bound by the judgment of the court below in the sense that the party which had to ultimately bear the cost of acquisition. Even otherwise, the University was aggrieved or prejudicially affected by the decisions of the lower court. After making a brief reference to Sections 38, 4, 5-A, 40 and 50 in the Act, the Division Bench stated that all these statutory provisions indicated that the company for whose benefit the land was acquired was vitally interested both in the acquisition of the land and also with regard to the quantum of compensation payable for the land so acquired. The fact that the company could not seek a reference under Section 18 did not seem to preclude the company from opposing by adducing evidence the enhancement sought to be claimed by the claimant through a reference under Section 18. If the company had sufficient interest in challenging the claim for enhancement of compensation in reference under Section 18 and has been conferred a right to adduced evidence for the purpose of determining the amount of compensation, there was no reason why the company should be denied a right to challenge the enhancement of compensation by the court by preferring an appeal. It is well settled that a person, who is not a party to the proceeding, cannot prefer an appeal as of right but if a person is either bound by the decision or aggrieved or prejudicially affected by the decision of the court, though not a party, he can prefer an appeal with the leave of the court. This was the reasoning which led the learned Judges to think that there was considerable force in the contention urged on behalf of the University. But with respect, we are not in agreement with this reasoning or conclusion, for the reasons we have already stated above.
38. In the order of reference of this matter to the Full Bench, Madhava Reddy and Jayachandra Reddy, JJ., doubted the correctness of the view expressed in Dan Reddy's case (supra). It was observed that it could not be said that lis is exclusively between the Government and the University for which the land is acquired and that the judgment and decree under appeal is of no concern or consequence to the University for which benefit the land was acquired and which has to pay the compensation fixed by the Court. There is no express prohibition under the Act disentitling the University from preferring an appeal. Likewise, there is also no provision which specifically declares that the person, who will have to pay the compensation, may also prefer an appeal. The court having regard to the facts and circumstances of each case would therefore exercise its discretion to grant or refuse leave to persons who are not eo nomine parties but whose interests are affected by the judgment, the question whether the person seeking leave was a necessary or a proper party to the suit may also weigh with the court, but is not the sole factor to limit the discretion of the court in granting leave. Finally, the learned Judges said :
"In the absence of a specific prohibition either in the Civil Procedure Code or in the provisions of the Land Acquisition Act , we are inclined to agree with the opinion expressed by the Bench in C.C.C.A. 113/71 and batch but inasmuch as that Bench ultimately agreed with the previous Bench, we have thought it necessary to record a few reasons for referring this matter for consideration of a Full Bench."
This view does not accord with the opinion we have stated above. We, therefore, hold that the law as stated in Dan Reddy case (supra) is the correct one, in so far as granting of leave to prefer an appeal to the appellate court by a person for whose benefit the land has been acquired is concerned.
39. In our considered opinion, the University has no locus standi, as a party to the land acquisition proceeding and even if it applied to be added as a party such addition is not permissible under the Act. Since it cannot be deemed to be a party to the proceeding, it cannot presume to seek leave of the High Court to prefer an appeal and the High Court cannot grant it. Consequently, our answer to the primary question posed by the Division Bench, while referring the matter to a Full Bench, is in the negative. The result of this conclusion is that the ex parte leave granted to the University has to be invoked and is accordingly cancelled. This appeal at its instance is not maintainable.
40. Since the entire matter has been referred to us we must also consider C.M.P. No. 8830/74 filed by the 2nd respondent in the appeal viz., the Special Deputy Collector, Land Acquisition (General) Hyderabad to transpose him as the 2nd appellant in the appeal and permit him to continue it. Many arguments, elaborate and learned, were advanced before us in support of and against this petition. It was said that the petitioner was a party to the appeal and at his instance the appeal was always maintainable. In fact, he had a right to prefer an appeal. Since there is no bar of limitation, this request could be granted and the appeal might be continued in the interests of justice. On the other hand, it was argued on behalf of the claimant, relying on Dan Reddy's case, (1974) 1 Andh LT 332 (supra) that once leave is withdrawn, there is no appeal as such in which the 2nd respondent could be transposed as 2nd appellant. Further, the petition is vitiated by gross negligence and so, could not be granted in any event.
41. In the circumstances in which the petition has been filed, we do not think it necessary to go into any other question excepting the one relating to gross negligence on the part of the petitioner. The decree was passed by the lower court on 10-12-1970. This appeal was presented in this Court by the University on 25-11-1971. The petitioner was added as 2nd respondent and notice of the appeal was sent to him. The decision of Chinnappa Reddy, J., in A.P. Agricultural University v. B. Gangamma (supra) was rendered on 24-7-1973 holding that the University could not prefer an appeal even with leave of Court against the award of compensation. The University was the appellant there and so, it knew how this court viewed the maintainability of appeal at its instance. The Government also was a party to that appeal. Therefore, it also knew how the legal position was viewed by this Court. Still, the 2nd respondent kept quiet for nearly 13 months. The present petition was filed on 22-8-1974. This delay is long and inordinate.
42. Let us see how the 2nd respondent explained this delay in the affidavit in support of this petition. After stating the facts the affidavit proceeds to mention that the University preferred this appeal as it is directly interested in the subject-matter of the appeal. The Court granted leave to the University to prefer the appeal. In paragraph 3 of the affidavit, the petitioner specifically referred to the decision of Chinnappa Reddy, J., dated 24-701973 that the University could not maintain the appeal and to the Letters Patent Appeal preferred against that decision, which was admitted on 3-9-1973. It is indeed curious that despite this decision, the 2nd respondent did not file the present petition earlier for his transposition. This itself shows that the petitioner did not evince any interest in preferring this appeal even at that stage.
43. But more startling is the statement contained in paragraph 5 of the affidavit. We may quote the relevant part of it verbatim :
"I submit that I was already made a respondent in the appeal preferred in the Agricultural University, I would have myself filed the appeal but for the fact that the University referred the appeal on the basis of the G.O. issued by the Government permitting the institutions, for whose benefit the lands were acquired to prefer the appeals. In these circumstances I pray that I may be permitted to contest the claim of the contesting respondents in the appeal."
So, what the petitioner stated is that he would have preferred the appeal himself but for the fact that the G.O. permitted the University to prefer the appeal. In the first place, what the G.O. permitted or refused to permit does not create any right in the University to prefer an appeal. The question whether it could maintain an appeal will have to be decided on a consideration of the Act and the other relevant legal provisions. That apart, the G.O. referred to by the petitioner does not confer any such permission on the University to prefer appeals. Obviously the reference is to G.O. Ms. 249 dated 9-3-1970. What all it says is that whenever a requisitioning authority, for whose benefit the land is acquired, wished Vakalat as may be given to their counsel to appear on behalf of Government and their officers, in which case the Government Pleader need not appear in these proceedings. In the same G.O. the direction was issued, that with a view to avoid the need for such double payment both to the counsel for the requisitioning department and the Government the counsel of the requisitioning department may alone be allowed to conduct the suits in courts. That does not and cannot mean that the requisitioning department could file or prefer an appeal. On the other hand, the G.O. itself pointed out :
"All such land acquisition suits are being handled by the Government pleaders and pleaders doing Government work. Besides this, the counsel representing the requisitioning departments, besides companies etc. may also appear in the Courts in addition to the law officers of the Government and adduce any evidence, conduct cases etc. under Section 50 (2) of the Land Acquisition Act. In all these suits the requisitioning department has to defray all the incidental charges connected with cases including payment of fees to Law Officers of the Government under Section 50 (1) of the Land Acquisition Act in addition to their own counsel, if he also attends. Thus, the Government while issuing the G.O. was fully aware that the requisitioning authority could only adduce evidence. In any case, the G.O. does not say that the requisitioning authority could prefer appeals. Even if it made such a provision it would have been wholly untenable.
44. But what is curious is that the petitioner sought to take shelter under this G.O. saying that the Government permitted the institutions, for whose benefit the lands were acquired, to prefer appeals. To say it mildly this is a very inaccurate statement. This clearly shows that the petitioner has not even taken care to understand what the G.O. meant. This clearly indicates gross negligence on his part. Had he shown reasonable are or even minimum diligence he should have preferred the appeal originally or in any event would have filed the present application immediately after 24-7-1973 when Chinnappa Reddy, J., held that the University could not maintain the appeal, if the petitioner really wanted to do so. Filing this petition 13 months after the above decision is only an afterthought and is in any case vitiated by gross negligence. We are not, therefore, inclined to grant this petition for transposition in this case.
45. Since this is sufficient to dismiss the petition, we are not expressing any opinion on any other question relating to transposition as it is wholly unnecessary in the context of the present case.
46. Since we have held that the appeal is not maintainable and the petition for transposition cannot be granted, it is not necessary to go into the question of merits relating to the actual value of the lands as on the date of the notification.
47. For the foregoing reasons, we dismiss the appeal and the petition for transposition with costs.
48. Appeal and petition for transposition dismissed.