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PETITIONER: K. KANKARATHNAMMA AND OTHERS

       Vs.

RESPONDENT: STATE OF ANDHRA PRADESH AND OTHERS

DATE OF JUDGMENT: 23/01/1964

BENCH: MUDHOLKAR, J.R. BENCH: MUDHOLKAR, J.R. SUBBARAO, K.

CITATION:  1965 AIR  304            1964 SCR  (6) 294

ACT: Land  Acquisition  Act, 1894 (1 of  1894).  s.  18(1)(2)--No reference   to   Court  on  the  question  of   quantum   of compensation--Court   if   competent  to  deal   with   such matter--No objection to the proceedings before the court  by the State--Defect if deemed to be waived.

HEADNOTE: On  a  dispute  with  regard  to  the  entitlement  to   the compensation awarded to the appellants in respect of certain land  acquired  by the State, the Land  Acquisition  Officer made  a reference to the court for the apportionment of  the compensation amount among the various claimants.  Six of the appellants did not accept the award of the Land  Acquisition Officer  and  made  applications to him  for  referring  the matter,  for determination by the court.  No  reference  was made  by him in pursuance of these applications.   When  the matter came up before the Court it proceeded on the  footing that the reference made to it was not merely limited to  the apportionment  of compensation but also with respect to  the amount  of  compensation.  No objection was  raised  by  the State  before the Subordinate Judge that in the  absence  of any reference upon the applications of six of the appellants the  Court was incompetent to deal with that  matter.   When the  matter  went up in appeal before the  High  Court,  the Government  Pleader raised the question that in the  absence of  a reference on the question of quantum of  compensation, the  Court  had no jurisdiction to consider that  matter  at all.  The High Court, allowed this plea to be raised  before it  but  ultimately negatived it. and it also  modified  the finding of the Court as to the amount of compensation.The appellants     contended  before  the  High  Court  that  by reason of thefailure of the State to raise the plea before the Subordinate Judge asto the absence of  a reference  the State must be deemed to have waivedthe point. The High Court accepted this ’argument upon the view thatthis   was not a     case of inherent lack of jurisdiction and that the defectin the procedure was such as could be waived. Held:(i)  On consideration of the  relevant  provisions contained  in  P  18  of  the  land  Acquisition  Act,   the jurisdiction  of the court arises solely on the basis  of  a reference  made to it.  Wherever jurisdiction is given by  a

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statute  and  such jurisdiction is only given  upon  certain specified  terms  contained  therein,  it  is  a   universal principle that those terms should be complied with, in order to  create and raise the jurisdiction, and if they  are  not complied  with the jurisdiction does not arise.   Therefore, it  was  a  case of lack of inherent  jurisdiction  and  the failure of the State to object to the proceedings before the Court on the ground of an absence of 295 reference in so far as the determination of compensation was concerned cannot amount to waiver or acquiescence.   Indeed, when  there  is  an absence of  inherent  jurisdiction,  the defect cannot be waived nor can be cured by acquisition. (ii)The  court had no jurisdiction to determine the  amount of  compensation  and thus go behind the order of  the  Land Acquisition Officer. Nusserwanjee  Pestonjee  and others v. Meer  Mynoodeen  Khan Wullud Meer Subroodeen Khan Bahadur, 6 M.L.A. 134,  Alderson v.  Paliser  and another, [1901] 2 K.B. 833 and  Seth  Badri Prasad  and others v. Seth Nagarmal and others,[1959]  Supp. (1) S.C.R. 769, relied on. Venkata  Krishnayya Garu v. Secretary of State, A.I.R.  1939 (P.C. 39-60 M.L.J. 299. distinguished.

JUDGMENT: CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 325 of 1962. Appeal from the judgment and decree dated August 4, 1959  of the  Andhra  Pradesh High Court in Appeal Suit  No.  489  of 1954. K.Bhimsankaram   and   R.   Ganapathy   Iyer,   for   the appellants. P.Ram Reddy, T. V. R.  Tatachari and B. R. G.  K.  Achar, for respondent No. 1. January  23, 1964.  The Judgment of the Court was  delivered by MUDHOLKAR J.--This is an appeal against the judgment of  the High Court of Andhra Pradesh by which it reduced the  amount of compensation awarded to the appellants by the Subordinate Judge,  Vijayawada in respect of certain lands belonging  to them which were acquired by the State. The lands in question are survey Nos. 281/2, 339/1 to 8  and 338/1  to 3 which are situate at a short distance  from  the town  of Vijayawada and lie alongside  the  Vijayawada-Eluru Road.  The Land Acquisition Officer had fixed Rs. 3,500  per acre  for the first two of these survey Nos. and  Rs.  4.000 per   acre  for  the  third  survey  number.   The   learned Subordinate  Judge granted a uniform rate of Rs. 10,000  per acre  for  the lands comprised in all  the  survey  numbers. There were some disputes with regard to 296 the entitlement to the compensation for survey No. 339/1  to 3  and  the  Land Acquisition  Officer,  therefore,  made  a reference  to  the Court for the apportionment of  the  com- pensation  amount among the various claimants.  Six  of  the appellants did not accept the award of the Land  Acquisition Officer  and made applications in writing to him within  the time  allowed  by law for referring the  matter  for  deter- mination  of the court.  It is common ground that no  refer- ence  was made by the Land Acquisition Officer in  pursuance of  these applications.  When the matter came up before  the Court it proceeded on the footing that the reference made to it by the Land Acquisition Officer was not merely limited to the apportionment of compensation but was also with  respect

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to  the amount of compensation.  No objection was,  however, raised  on  behalf of the State that in the absence  of  any reference upon the applications of six of the appellants the Court  was incompetent to deal with that matter.   When  the matter  went  up before the High Court by way of  an  appeal from  the judgment of the Subordinate Judge, the  Government pleader  raised  the  question  that in  the  absence  of  a reference on the question of quantum of compensation by  the Land  Acquisition Officer, the Court had no jurisdiction  to consider  that  matter at all.  The High  Court,  though  it ultimately  reversed  the  finding of the court  as  to  the amount of compensation, unfortunately allowed the plea to be raised  before  it but ultimately upon  a  consideration  of certain  decisions,  negatived  it.   We  say  unfortunately because this is not ’a kind of plea which the State ought at all to have taken.  Quite clearly applications objecting  to the  rates at which compensation was allowed were  taken  in time  by  persons interested in the lands which  were  under acquisition  and it was no fault of theirs that a  reference was  not  made  by the Land  Acquisition  officer.   Indeed, whenever  applications  are  made under s. 18  of  the  Land Acquisition  Act,  it is the duty of  the  Land  Acquisition Officer  to make a reference unless there is a valid  ground for rejecting the applications such as for instance that the applications  were barred by time.  Where an officer of  the State is remiss in the performance of his duties in fairness the State ought not to take advantage of this fact.  We  are further of the 297 opinion that the High Court, after the plea had been raised, would  have  been  well-advised to adjourn  the  matter  for enabling  the appellants before us, who were respondents  in the High Court, to take appropriate steps for compelling the Land Acquisition Officer to make a reference. All  the  same  since the point was permitted  to  be  urged before it by the High Court and has been raised before us on behalf of the State it is necessary to decide it.  On behalf of  the  appellants it was contended before the  High  Court that by reason of the failure of the State to raise the plea before  the Subordinate Judge as to the absence of a  refer- ence the State must be deemed to have waived the point.  The High  Court accepted this argument upon the view  that  this was not a case of inherent lack of jurisdiction and that the defect in the procedure was such as could be waived.  In our opinion the view of the High Court is not correct.   Section 12(1)  of  the Land Acquisition Act provides that  after  an award is filed in the Collector’s office it shall, except as provided  in  the Act, be final and conclusive  evidence  as between the Collector and the persons interested of the true area  and  value of the land and the  apportionment  of  the compensation among the persons interested.  The only  manner in  which  the  finality of the award  can  be  called  into question is by resort to the provisions of s. 18 of the Land Acquisition Act, sub-section (1) of which reads thus:               "Any  person interested who has  not  accepted               the  award may, by written application to  the               Collector, require that the matter be referred               by the Collector for the 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." The  proviso to sub-s. (2) prescribes the time within  which an  application under sub-S. (1) is to be made.  Section  19

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provides for the making of a reference by the Collector  and specifies the matters which are to be comprised in that 298 reference.   Thus the matter goes to the court only  upon  a reference  made by the Collector.  It is only after  such  a reference  is made that the court is empowered to  determine the objections made by a claimant to the award.  Section  21 restricts  the scope of the proceedings before the court  to consideration of the contentions of the persons affected  by the  objection.  These provisions thus leave no  doubt  that the jurisdiction of the court arises solely on the basis  of a  reference  made to it.  No doubt,  the  Land  Acquisition Officer  has  made  a  reference under s.  30  of  the  Land Acquisition Act but that reference was only in regard to the apportionment  of  the  compensation  amongst  the   various claimants.  Such a reference would certainly not invest  the court  with  the  jurisdiction  to  consider  a  matter  not directly  connected  with  it.  This is really  not  a  mere technicality  for  as pointed out by the  Privy  Council  in Nusserwanjee Pestonjee & Ors. v. Meer Mynoodeen Khan  Wullud Meer  Sudroodeen Khan Bahadoor(1) wherever  jurisdiction  is given by a statute and such jurisdiction is only given  upon certain specified terms contained therein it is a  universal principle that those terms should be complied with, in order to  create and raise the jurisdiction, and if they  are  not complied  with the jurisdiction does not arise.   This  was, therefore,  a case of lack of inherent jurisdiction and  the failure of the Slate to object to the proceedings before the court on the ground of an absence of reference in so far  as the  determination  of  compensation  was  concerned  cannot amount to waiver or acquiescence.  Indeed, when there is  an absence  of  inherent  jurisdiction, the  defect  cannot  be waived nor can be cured by acquiescence. In Alderson v. Palliser & Anr. (2) the Court of Appeal  held that  where the want of jurisdiction appears on the face  of the proceedings. it cannot be waived. In Seth Badri Prasad & Ors. v. Seth Nagarmal and Ors. ( 3) this Court has held that even  the  bar  of illegality of a  transaction  though  not pleaded in the courts below can be allowed to be pleaded  in this Court if it appears on the face of the pleading in (1) 6 M. 1. A. 134 at 155. (2) (1901)2 K.B.833. (3) [1959] supp.(1) S.C.R. 769. 299 the case.  The High Court has, however, based itself largely upon  a decision of the Privy Council in Venkata  Krishnayya Garu  v. Secretary of State(1).  In that case there  was  in fact  a  reference by the Collector to the  court  but  that reference was made by the Collector not upon the application of  the  person legally entitled to compensation  but  by  a person  whose  claim  to ownership of  property  had  failed before the civil court but who was still a party to the land acquisition  proceedings.  In our opinion that  decision  is distinguishable on the short ground that whereas here  there is no reference at all by the Collector or the Land Acquisi- tion  Officer,  in  that  case  the  Collector  had  made  a reference  though in making it he had committed an error  of law  in that he acted upon the application of a  person  who had been found to have no interest in the land.  Disagreeing with  the High Court we, therefore, hold that the Court  had no jurisdiction to determine the amount of compensation  and thus go behind the order of the Land Acquisition Officer. Upon  this  short ground the appeal must be  dismissed.   We have, however, heard Mr. Bhimasankaram on merits and in  our opinion there are no substantial grounds which would justify

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interference with the conclusions arrived by the High Court. For determining the amount of compensation seven sale  deeds were filed, Exs.  Al to A4, on behalf of the State and B1 to B3  on  behalf of the appellants.  A synopsis  of  the  sale deeds has been made by the High Court in its judgment and we can do no better than to reproduce it: ---------------------------------------------------------- Sl. Exhi-  Date  Extent of  Amount Rate per    Proximity of No. bit          land                acre      site acquired                  Acs. cts.   Rs.     Rs. ---------------------------------------------------------- 1. A-1  15-2-46 0-40-1/2 1,750  4,240 Opposite to thesuit                                        land and abutting                                        the main road. 2. A-2  25-8-46 0-65-1/2 2,500   3,800 Some distance away                                        from the site of                                        the acquired land                                        towards Eluru. ------------------------------------------------------------ A.I. R. 1939 P. C. 39; 60 M. L. J. 399. 300 3. A-3 9-10-46  1-004,5OO  4,500  Very near the acqu-                                        ired land the same                                        vendee. 4.A-4  9-10-46  1-004,500  4,500  Partof the same site,                                        and the vendee. 5. B-1 14-10-46 0-707,000  10,0005 furlongs away from                                        the suit site and                                        nearer Bezwada. 6. B-2 14-2-47  1-09   just over       5 furlongs away to-                        12,000   12,000   wards Bezwada. 7.B-3 24-1-46 0-36    1,850    5,000  Itis a part and parcel                                        of the same land that                                       is sought to be acqui-                                       red. ------------------------------------------------------------ Out of these sale deeds Exs.  Al and A2 were rejected by the High  Court,  Al  on the ground that it  is  several  months earlier than the date of notification under s. 4 of the  Act and  Ex. A2 on the ground that the land comprised in  it  is some  distance away from the land under acquisition  and  is also further away from Vijayawada than this land.  The  High Court  similarly rejected Ex.  B2-2 on the ground  that  the transaction  was entered into four months after  the  publi- cation of the notification and on the further ground that it is  located in the direction of Vijayawada at a distance  of five  furlongs  from the land acquired.  It  has  apparently rejected also Ex.  B3, though the land sold thereunder is  a part  and  parcel  of the same land which is  sought  to  be acquired.   The  ground  appears to be that  the  land  sold thereunder  is only 36 cents in area.  It has accepted  Exs. A3 and A4 and on that basis awarded compensation at the rate of Rs. 4,500 per acre for all these lands.  In so far as Ex. B1  is  concerned  the High Court has taken  the  view  that though  it  bears  the date of October  14,  1946  the  cir- cumstances  that it was actually registered on February  13, 1947 and some of the stamp papers used were in the names  of persons  unconnected with the transaction shows that it  has really been ante-dated so as to make it appear to be earlier in point of time than the notification. In  our  opinion what the High Court has  said  about  these three exhibits, B1, B2 and B3, seems to have consi- 301 derable  force.  At any rate we do not think that there  are any  substantial  grounds upon which we can  look  at  these

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transactions  in  a different way.  If  these  documents  go away,  as also Exs.  Al and A2, we are left with  only  Exs. A3  and  A4.  Some argument was advanced before  us  to  the effect  that the lands comprised in the transactions  repre- sented by these documents have no direct access to the  road and  that,  therefore, they could not have  fetched  a  good price.   Bearing  in  mind  the  fact  that  these  are  all agricultural  lands  a rate of Rs. 4,500 per acre  at  which they were sold cannot prima facie be regarded as inadequate. As  regards  access, it is sufficient to say that  they  are parts  of the same field which abut on the road, though  the portions sold do not themselves abut on the road.  Since the lands  sold under these sale deeds were part and  parcel  of the  same field which abuts on the road those who  purchased these  lands would naturally obtain a right of way over  the land unsold so as to have access to the road. In  the  circumstances we hold that the  appeal  is  without substance.  Accordingly we dismiss it with costs. Appeal dismissed.