Ch. Satyanarayana and ors. Vs. Land Acquisition Officer-cum-sub-collector and anr. - Court Judgment

Excerpt:
- motor vehicles act (59 of 1988)section 149 (2): [v. gopala gowda & jawad rahim, jj] insurers entitlement to defend the action joint appeal by insured and insurer - held, the language employed in enacting sub-section (2) of section 149 appears to be plain and simple and there is no ambiguity in it. it shows that when an insurer is impleaded and has been given notice of the case, it is entitled to defend the action only on grounds enumerated in sub-section (2) of section 149 of the act, and no other grounds are available to it. the insurer is not allowed to contest the claim of the injured or heirs of the deceased on other grounds, which are available to the insured. if insurer is permitted to contest the claim on other grounds it would mean adding more grounds of contest to the insurer and will be negation of the intention of the legislature and annihilate mandate of the provisions of sections 170 and 149 of the act. the insured can pursue appeal only after giving up the insurer as the appellant and not otherwise. in the instant case, the insurer has not withdrawn from party array but has remained prosecuting the appeal with the insured on the grounds which are available only to the insured. therefore, the joint appeal as filed by the insured and the insurer is not maintainable. section 166: [v. gopala gowda & jawad rahim, jj] claim for compensation accident due to mechanical defect in the vehicle held, it is not in dispute that the claimant suffered injuries in an accident, which occurred during the course of his employment, albeit due to his negligence but law does not render him remediless. statutory right is conferred on him, accruing by virtue of his employment under insured to claim compensation under workmens compensation act. the insurer is statutorily duty bound to discharge the liability of the owner of the vehicle, to pay such compensation to the employee, as mandated under the provisions of section 149 of the act. the right of an injured employee or his dependents as the case may be to be compensated, when injury is suffered or death occurs during his employment, is recognised not only under workmens compensation act, but also under benevolent provisions under section 166 and 167 of the m.v. act. the right of driver to seek compensation is not restricted only to the workmens compensation act, it has been enlarged to enable such person to seek just compensation (sections 166 and 168), conferring upon him the right of election engrafted under section 167 of the act to choose either of the two forum. the only defence which the insurer could take is limit of its liability as enumerated under section 147 of the act, leading to contest, inter alia, only between insured and insurer and does not impact claimants right to recover the compensation determined by the tribunal which crystallizes into enforceable right against both. in the instant case, the claimant/driver has exercised right of election under section 167 of the act to seek compensation under section 166 of the act resulting in award passed by the tribunal. therefore, the insured and the insurer have no escape but to discharge the said award as directed. undisputedly, in this case as deduced for proved facts, the vehicle in question was not properly maintained by the owner and despite faulty brake system, the claimant had undertaken the hazardous journey to his peril at the behest of and at the instruction of the owner. the owner is therefore, tortfeasor. section 168: [v. gopala gowda & jawad rahim, jj] insurers limit of liability - held, it is well settled that the liability of the insurance company for payment of compensation can be statutory or contractual. is for the insurance company to show that the insurance policy was a statutory policy and not a contractual policy to restrict its liability. that issue was neither raised before the tribunal nor is raised in this appeal requiring decision. thus, if at all the insurer has any valid ground to restrict its liability, it can proceed against the insured but firstly it has to discharge the award as required under section 149 (1) of the act. where the owner/insured has failed to maintain the vehicle as per prescribed safety standards and has caused the claimant to drive the vehicle with mechanical defects, the owner would be the tortfeasor and the claimant can maintain a petition seeking compensation under the provisions of the act, instead of seeking compensation under the workmens compensation act. on facts, held, the material evidence on record, particularly, with regard to the income of the claimant, his age, medical evidence and the evidence relating to pecuniary loss has not been considered by the tribunal in the correct perspective, which has resulted in passing of the impugned award, disproportionate to the pecuniary loss and the loss of future income of the victim. the settled principles governing determination of compensation has been given a go-bye. compensation of rs.4,15,150/- awarded by the tribunal was enhanced to rs.8,20,000/-. orderv.v.s. rao, j.1. petitioners, who are five in number, are statedly statutory tenants of second respondent, namely, sri bheemeswaraswamy temple, bhimalapuram village, achanta mandal, west godavari district, in respect of land in r.s. no. 34/5 admeasuring acs.5.92, r.s. no. 95/1, and r.s. no. 90/4 admeasuring ac.1.98 situated in said village. the land is owned by second respondent temple. petitioners also allege that they are entitled for protection under provisions of andhra pradesh (andhra area) tenancy act, 1956 (for short, tenancy act) and that they are paying makta/annual rent without committing default or delay. in 1996, land was acquired by government for providing house sites to persons belonging to weaker sections. petitioners made a petition to first respondent claiming 60% of the compensation as tenants, in vain. therefore, they filed instant writ petition seeking a writ of mandamus declaring inaction of respondents in considering claim of petitioners for payment of 60% of the compensation as illegal, arbitrary and for such consequential direction.2. second respondent temple filed a counter-affidavit. present status of petitioners as tenants is denied. it is stated that petitioners are not statutory tenants and there is no such declaration issued by competent civil court and therefore, they cannot be considered as such. lease in favour of petitioners expired long back. petitioners fell in arrears. therefore, second respondent temple filed suits, being o.s. nos. 101 of 1994 and 56 of 2001 and s.c. nos. 18, 19 and 20 of 2000. petitioners are no more cultivating tenants. it is also contended that by reason of judgment of supreme court in state of a.p., v. nallamilli rami reddi : air2001sc3616 , tenancy act has no application to charitable religious institutions governed by the andhra pradesh charitable and hindu religious institutions and endowments act, 1987 (endowments act, for brevity). therefore, they are not entitled for apportionate compensation. government - first respondent has not filed any counter-affidavit.3. sri nagesh, learned counsel representing sri ch. dhanamjaya, learned counsel for petitioners submits that a tenant governed by tenancy act is a 'person interested' entitled to challenge acquisition proceedings and also claim apportionate share in compensation awarded by government. he placed reliance on samadhi narayana v. state of a.p. 1990(1) alt 237 (d.b.) and bammidi jagannayakulu v. district collector, srikakulam : 2000(3)ald15 .4. there cannot be any dispute that a tenant in possession of land acquired is a 'person interested' within the meaning of section 3(b) of land acquisition act, 1894 (la act, for brevity). therefore, there cannot be any doubt that they can always challenge acquisition proceedings before appropriate forum. merely because he is 'person interested' within the meaning of la act, can he, without proving right, claim compensation and for that purpose participate in award enquiry. the answer must be in the negative. in union of india v. krishan lal arneja : air2004sc3582 , supreme court considered the question of locus of a tenant to assail acquisition proceedings and/or claim compensation. referring to municipal corporation of greater bombay v. industrial development investment co. (p) ltd. : air1997sc482 , their lordships observed as below.5. in the light of the decision of this court in municipal corporation of greater bombay v. industrial development investment co. (p) ltd. : air1997sc482 it cannot be said that in no case, the tenant of the land which is sought to be acquired under the provisions of the act can challenge the acquisition proceedings. it is clear from section 5-a(3) of the act that for the purpose of the said section, a person shall be deemed to be interested in land who would be entitled to claim an interest in compensation if the land were acquired. in an appropriate case, a tenant having sufficient subsisting interest in the land can challenge the acquisition proceedings.6. thus, if a tenant is able to show either under common law, statute law or constitutional law that he has sufficient subsisting enforceable interest to claim compensation, there cannot be any objection for considering such claim. to similar effect are the following observations of a division bench of this court in a. appala reddy v. spl. tahsildar 1978(2) aplj 269.7. a tenant is a 'person interested' as defined in clause (b) of section 3 of the land acquisition act. he has a right to object to the acquisition and/or to the quantum of compensation. the land acquisition officer or the court, as the case may be, has to ascertain the value of his right in the property acquired and compensate him in that behalf. no hard and fast rule can be laid down, nor can any universally applicable, formula, be evolved in the matter of apportionment between the owner and the tenant. it all depends upon the content of the tenant's right(s). the terms of the lease may have to be looked into for ascertaining the content and value of his right(s) and if he is a statutory tenant, the terms of the statute have to be looked to for the purpose. an over- all view has got to be taken and the proportion of their respective interests determined.what is an appropriate context wherein a tenant can claim compensation? as mentioned supra, a tenant can succeed if it is shown that he has right under a lease deed or in common law or under constitution. in this case, petitioners claim certain rights under tenancy act. in samadhi narayana (supra), division bench of this court following appala reddy (supra) was dealing with a case of a tenant of a temple under tenancy act. therefore, it was observed that a tenant governed by tenancy act is entitled to a share in the compensation. if tenancy act applies in respect of a lease by a charitable institution governed by endowments act, certainly tenant of religious institution can claim a share. section 82 of endowments act rendered all the tenancies of temple lands given by charitable and religious institutions invalid from the date of coming into force of section 82(1) of endowments act and lease in respect of temple lands stands cancelled. this provision has been upheld - incidentally reversing samadhi narayana (supra), by supreme court in nallamilli rami reddi (supra).8. when tenancy act has no application the tenant of second respondent temple, as alleged cannot be entitled to a share in the compensation. law as of now does not confer any such right on a tenant of religious institution.9. the writ petition is devoid of merits and the same is accordingly dismissed. no costs.

Judgment:
ORDER

V.V.S. Rao, J.

1. Petitioners, who are five in number, are statedly statutory tenants of second respondent, namely, Sri Bheemeswaraswamy temple, Bhimalapuram Village, Achanta Mandal, West Godavari District, in respect of land in R.S. No. 34/5 admeasuring Acs.5.92, R.S. No. 95/1, and R.S. No. 90/4 admeasuring Ac.1.98 situated in said Village. The land is owned by second respondent temple. Petitioners also allege that they are entitled for protection under provisions of Andhra Pradesh (Andhra Area) Tenancy Act, 1956 (for short, Tenancy Act) and that they are paying makta/annual rent without committing default or delay. In 1996, land was acquired by Government for providing house sites to persons belonging to weaker sections. Petitioners made a petition to first respondent claiming 60% of the compensation as tenants, in vain. Therefore, they filed instant writ petition seeking a writ of Mandamus declaring inaction of respondents in considering claim of petitioners for payment of 60% of the compensation as illegal, arbitrary and for such consequential direction.

2. Second respondent temple filed a counter-affidavit. Present status of petitioners as tenants is denied. It is stated that petitioners are not statutory tenants and there is no such declaration issued by competent civil Court and therefore, they cannot be considered as such. Lease in favour of petitioners expired long back. Petitioners fell in arrears. Therefore, second respondent temple filed suits, being O.S. Nos. 101 of 1994 and 56 of 2001 and S.C. Nos. 18, 19 and 20 of 2000. Petitioners are no more cultivating tenants. It is also contended that by reason of judgment of Supreme Court in State of A.P., v. Nallamilli Rami Reddi : AIR2001SC3616 , Tenancy Act has no application to charitable religious institutions governed by the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1987 (Endowments Act, for brevity). Therefore, they are not entitled for apportionate compensation. Government - first respondent has not filed any counter-affidavit.

3. Sri Nagesh, learned Counsel representing Sri Ch. Dhanamjaya, learned Counsel for petitioners submits that a tenant governed by Tenancy Act is a 'person interested' entitled to challenge acquisition proceedings and also claim apportionate share in compensation awarded by Government. He placed reliance on Samadhi Narayana v. State of A.P. 1990(1) ALT 237 (D.B.) and Bammidi Jagannayakulu v. District Collector, Srikakulam : 2000(3)ALD15 .

4. There cannot be any dispute that a tenant in possession of land acquired is a 'person interested' within the meaning of Section 3(b) of Land Acquisition Act, 1894 (LA Act, for brevity). Therefore, there cannot be any doubt that they can always challenge acquisition proceedings before appropriate forum. Merely because he is 'person interested' within the meaning of LA Act, can he, without proving right, claim compensation and for that purpose participate in award enquiry. The answer must be in the negative. In Union of India v. Krishan Lal Arneja : AIR2004SC3582 , Supreme Court considered the question of locus of a tenant to assail acquisition proceedings and/or claim compensation. Referring to Municipal Corporation of Greater Bombay v. Industrial Development Investment Co. (P) Ltd. : AIR1997SC482 , their Lordships observed as below.

5. In the light of the decision of this Court in Municipal Corporation of Greater Bombay v. Industrial Development Investment Co. (P) Ltd. : AIR1997SC482 it cannot be said that in no case, the tenant of the land which is sought to be acquired under the provisions of the Act can challenge the acquisition proceedings. It is clear from Section 5-A(3) of the Act that for the purpose of the said section, a person shall be deemed to be interested in land who would be entitled to claim an interest in compensation if the land were acquired. In an appropriate case, a tenant having sufficient subsisting interest in the land can challenge the acquisition proceedings.

6. Thus, if a tenant is able to show either under common law, statute law or constitutional law that he has sufficient subsisting enforceable interest to claim compensation, there cannot be any objection for considering such claim. To similar effect are the following observations of a Division Bench of this Court in A. Appala Reddy v. Spl. Tahsildar 1978(2) APLJ 269.

7. A tenant is a 'person interested' as defined in Clause (b) of Section 3 of the Land Acquisition Act. He has a right to object to the acquisition and/or to the quantum of compensation. The Land Acquisition Officer or the Court, as the case may be, has to ascertain the value of his right in the property acquired and compensate him in that behalf. No hard and fast Rule can be laid down, nor can any universally applicable, formula, be evolved in the matter of apportionment between the owner and the tenant. It all depends upon the content of the tenant's right(s). The terms of the lease may have to be looked into for ascertaining the content and value of his right(s) and if he is a statutory tenant, the terms of the statute have to be looked to for the purpose. An over- all view has got to be taken and the proportion of their respective interests determined.

What is an appropriate context wherein a tenant can claim compensation? As mentioned supra, a tenant can succeed if it is shown that he has right under a lease deed or in common law or under Constitution. In this case, petitioners claim certain rights under Tenancy Act. In Samadhi Narayana (supra), Division Bench of this Court following Appala Reddy (supra) was dealing with a case of a tenant of a temple under Tenancy Act. Therefore, it was observed that a tenant governed by Tenancy Act is entitled to a share in the compensation. If Tenancy Act applies in respect of a lease by a charitable institution governed by Endowments Act, certainly tenant of religious institution can claim a share. Section 82 of Endowments Act rendered all the tenancies of temple lands given by charitable and religious institutions invalid from the date of coming into force of Section 82(1) of Endowments Act and lease in respect of temple lands stands cancelled. This provision has been upheld - incidentally reversing Samadhi Narayana (supra), by Supreme Court in Nallamilli Rami Reddi (supra).

8. When Tenancy Act has no application the tenant of second respondent temple, as alleged cannot be entitled to a share in the compensation. Law as of now does not confer any such right on a tenant of religious institution.

9. The writ petition is devoid of merits and the same is accordingly dismissed. No costs.