The General Manager vs Stateof Ap
2023 Latest Caselaw 693 AP

      IN THE HIGH COURT OF ANDHRA PRADESH: AMARAVATI

HON'BLE Mr. JUSTICE PRASHANT KUMAR MISHRA, CHIEF JUSTICE
                         &
      HON'BLE Mr. JUSTICE D.V.S.S. SOMAYAJULU

                    REVIEW I.A.No.1 of 2022
                              in
                   WRIT APPEAL No.84 of 2018

                               ORDER

Dt.09.02.2023

(Prashant Kumar Mishra, CJ)

This review I.A., under Order 47 Rule 1 of CPC read with Rule

24 of the Writ Proceedings Rules, has been preferred seeking review

of the judgment dated 01.02.2018 passed in W.A.No.84 of 2018,

which, in turn, arose out of the order dated 04.10.2017 passed by

the learned single Judge in W.P.No.9952 of 2004.

2. The applicants/writ petitioners preferred W.P.No.9952 of

2004 challenging Award No.3 of 1998 dated 18.04.1998 passed by

the Land Acquisition Officer and Special Collector, Vijayawada, 3rd

respondent herein, under the Land Acquisition Act, 1894 (for short,

"the 1894 Act") in respect of the land admeasuring Ac.6.13 cents in

N.T.S.No.9, Block No.12 of Machavaram village, near Vijayawada

Town of Krishna District.

                                  -2-                            HCJ & DVSS,J
                                                           I.A.No.1 of 2022 in
                                                           W.A.No.84 of 2018

3. Briefly stated, facts of the matter that are necessary for

decision making, are that Notification under Section 4(1) of the

1894 Act was published in the District Gazette on 14.11.1985.

Declaration under Section 6 of the 1894 Act was published in the

A.P. Gazette on 11.03.1986. Award enquiry under Section 9(1),

9(3) and 10 was held on 16.04.1988 and eventually award was

passed on 18.04.1988, in terms of which the landowner-5th

respondent in the writ petition was paid Rs.37,53,568/-, 6th

respondent was paid Rs.23,24,089-70 Ps. and 7th and 8th

respondents were paid Rs.18,71,686-10 Ps.

4. The subject land was exempted from the operation of Urban

Land (Ceiling and Regulation) Act, 1976 (for short, "the 1976 Act")

as the same fell under the urban agglomeration of Vijayawada.

From the initial notified area of Ac.6.13 cents, an extent of 2500 sq.

yards was subsequently deleted; thus leaving Ac.5.92 cents to be

acquired for the applicants-BSNL. On award being passed,

respondents 5 to 7 sought reference under Section 18 of the 1894

Act, seeking enhancement of compensation to Rs.1,000/- per sq.

yard, which was numbered as LAOP No.263 of 1998. The said LAOP

was allowed by the Principal Senior Civil Judge, Vijayawada, in his

judgment dated 25.01.2002, enhancing the compensation to

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Rs.232.50 Ps. per sq. yard. Questioning the reference award,

respondents 5 to 7 filed A.S.No.975 of 2002 under Section 54 of the

1894 Act, which was partly allowed on 28.03.2014 and the

compensation was further enhanced to Rs.336/- per sq. yard with

all statutory benefits on the enhanced compensation including

interest on solatium.

5. Undisputedly, applicants-BSNL had paid the compensation

determined by the Land Acquisition Officer in his award dated

18.04.1998, long before the writ petition came to be filed.

6. The learned single Judge dismissed the writ petition on the

reasoning that the applicants were aware of the proceedings under

the 1894 Act; therefore, it was for them to have waited for

completion of proceedings under the 1976 Act before insisting on

delivery of immediate possession of the land. It was recorded that

once they were aware of the proceedings under the 1976 Act and

they having deposited the amount of compensation with the Land

Acquisition Officer, which was already distributed to respondents 5

to 8 and they having acquiesced with the proceedings under the

1894 Act, it was not open for the them to assail the award.

                                  -4-                             HCJ & DVSS,J
                                                            I.A.No.1 of 2022 in
                                                            W.A.No.84 of 2018

7. Before the writ appellate court, it was argued that the very

exemption granted under the 1976 Act, by the memo dated

20.09.1985 exempting the subject land from the purview of the

guidelines issued under the 1976 Act on 02.09.1976, is illegal.

Therefore, on this memo being declared illegal, the subject land

must be deemed to have vested in the State Government and the

unofficial respondents cannot claim ownership of the subject land

and the award passed granting compensation to the unofficial

respondents must be declared null and void by the court.

8. The writ appellate court held that the memo dated

20.09.1985 exempting the subject land from operation of the 1976

Act, is not under challenge in the writ petition and, moreover, the

said memo clearly says that it was issued at the instance of the

applicants. It was also noted that the exemption memo dated

20.09.1985 was issued under the guidelines dated 02.09.1976,

which stipulate that in all cases relating to acquisition of land in an

urban agglomeration coming under the purview of the 1976 Act,

publication of notification under Section 4 and declaration under

Section 6 of the 1894 Act, could be proceeded with, without taking

over possession of the land and further action regarding passing of

award, payment of compensation and taking over possession of the

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land can be taken up after thorough verification of the holding

under the 1976 Act in respect of the land belonging to non-surplus

holders and falling within the guidelines. The writ appellate court

further held that, to avail exemption the applicants could not have

taken possession of the subject land which would have continued to

remain in the possession of the unofficial respondents. Consequent

upon repeal of the 1976 Act, proceedings instituted against the

unofficial respondents would then have lapsed and they would have

continued to retain title over the subject land. It is only because of

the exemption granted vide memo dated 20.09.1985 that these

lands were taken out of the purview of the 1976 Act, thereby

enabling award to be passed and possession of the subject land to

be handed over to the applicants.

9. The writ appellate court rightly held that the applicants

cannot take a somersault and contend that the very exemption

granted by the Government from the operation of the 1976 Act, is

illegal, more so without even challenging the validity of the said

exemption memo in the writ petition.

10. Relying on the law laid down by the Hon'ble Supreme Court in

A.V. Papayya Sastry and others v. Govt. of A.P. and others -

                                  -6-                            HCJ & DVSS,J
                                                           I.A.No.1 of 2022 in
                                                           W.A.No.84 of 2018

(2007) 4 SCC 221, it is submitted by Mr. Vedula Venkata Ramana,

learned senior counsel appearing for the appellants, that if the

landowner tries to obtain compensation under the 1894 Act when

such land is already eclipsed by the provisions of the 1976 Act, such

landowner would be deemed to commit fraud on the court and

therefore no benefit should be allowed to be appropriated or

retained by such landowner.

11. According to the learned senior counsel, learned single Judge

as well as the writ appellate court have overlooked this legal

position. Therefore, there is error apparent on the face of the

record. It is also argued that the landowners have apparently

played fraud on the State by securing the memo of exemption,

thereby securing undue benefits and the learned single Judge as

well as the writ appellate court should have considered the matter

and allowed the writ petition.

12. There is no dispute on the legal position that fraud vitiates all

judicial acts whether in rem or in personam and any judgment,

decree or order obtained by fraud has to be treated as non est and

nullity, as held by the Supreme Court in S.P. Chengalvaraya

Naidu (dead) by Lrs. v. Jagannath (dead) by Lrs. and others

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- (1994) 1 SCC 1. However, in A.V. Papayya Sastry (supra),

fraud has been proved under a report submitted by CBI and

initiation of criminal proceedings, whereas, in the case at hand,

applicants/writ petitioners have made allegations of fraud without

there being any proof of such fraud being committed by the

landowners.

13. In any case, in the case at hand, the learned single Judge as

well as the writ appellate court have found that the applicants/writ

petitioners were aware of the land acquisition proceedings and, as a

matter of fact, the exemption memo dated 20.09.1985 was issued

at their behest. Thus, they were aware of the proceedings under

the 1976 Act and having prayed before the authorities under the

1976 Act for exemption of the subject land from the operation of

the 1976 Act, it is not only that they were aware of the proceedings,

but, in fact, they became party to the exemption application and, as

such, now, they cannot turn around to raise a plea of commission of

fraud by the landowners. It is also to be seen that if there was a

fraud committed by the landowners, exemption memo would be

recalled reverting back to a position where proceedings under the

1976 Act, would be revived and in such case, acquisition

proceedings under the 1894 Act cannot proceed till the proceedings

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under the 1976 Act are completed. In such a situation, the very

acquisition would remain in suspended animation, whereas the

applicants/writ petitioners have already taken the benefit of the

acquisition by retaining possession of the land raising construction

thereon and enjoying the same since last more than 30 years. It is

also to be seen that in the meanwhile, the 1976 Act has been

repealed in the year 1999 by way of passing of the Urban Land

(Ceiling and Regulation) Repeal Act, 1999 (Act 15 of 1999). If the

proceedings under the 1976 Act were not complete and the

landowners would have been in possession on the date of passing

of the Act 15 of 1999, proceedings would have lapsed allowing the

landowners to remain, own and possess the entire land. Therefore,

for this intervening event also, the plea of fraud is not free from

legal debate. Whether or not a party to the litigation has committed

fraud is always a question of fact, which can be decided when there

is clinching evidence of commission of fraud, whereas in the case at

hand, there is interplay of legality of the exemption memo; the issue

of the applicants/writ petitioners themselves acquiesced with the

whole issue by being a party to the exemption application; the

impact of the Act 15 of 1999 etc. Thus, present is not a case of

proven fraud being played by the landowners.

                                  -9-                             HCJ & DVSS,J
                                                            I.A.No.1 of 2022 in
                                                            W.A.No.84 of 2018

14. A court which is called upon to review its order is not entitled

to consider the entire issue as if it has heard the matter afresh.

However, this court heard the learned senior counsel for the

applicants/writ petitioners at length, because submissions were

made basing upon the judgment in A.V. Papayya Sastry and

others (supra) and the allegation of fraud being played by the

landowners.

15. However, despite considering the submissions as discussed

above, we do not find any such error apparent on the face of the

record being committed by the writ appellate court warranting

exercise of review jurisdiction to recall the order dated 01.02.2018

passed in W.A.No.84 of 2018.

16. Accordingly, I.A.No.1 of 2022 is dismissed.

              Sd/-                                   Sd/-

PRASHANT KUMAR MISHRA, CJ               D.V.S.S. SOMAYAJULU, J

MRR