Telangana Housing Board vs Azamunnisa Begum (Died) Thru. Lrs. & Ors.

HELD: 1. The entire Survey No. 1009 was acquired by the APHB for a Housing Scheme. No parcel of land in Survey No.1009 was left out or not acquired. Compensation was paid for acquisition of the entire Survey No.1009. The Division Bench of the High Court erred in concluding that 20.18 acres of land in Survey No.1009 had not been acquired. It is too simplistic on the part of the respondents to contend that land in excess of 661.04 acres in Survey No.1009 was not acquired. This is certainly not so and the entire Survey No.1009 was acquired. The claim made by the respondents under Section 87 of the Act was hopelessly delayed for which there is absolutely no explanation forthcoming. Since third party rights have been created in the meanwhile under the Housing Scheme of the APHB and there is no way to put the clock back. The respondents ought to have been vigilant in pursuing their claim, assuming the claim was legitimate, but since they were not vigilant enough, they must suffer the consequences of their inaction. The proceedings under the Andhra Pradesh Land Reforms (Ceiling of Agricultural Holdings) Act, 1973 were of some consequence but since the APHB has not relied upon the proceedings under the said Act and the counsel has only mentioned it in passing, there is no intention to base the decision on the declaration made by the respondents under the said Act. The APHB was directly and primarily affected by the claim made by the respondents under Section 87 of the Act and therefore, had the locus standi to proceed before the Commissioner (Appeals), the High Court and this Court. The judgment and order passed by the Division Bench is set aside. [Paras 65-70] [824-BH; 825-A]

2.1 The Division Bench of the High Court seriously erred in setting aside the order of the Single Judge.The APHB had acquired, in terms of the Award dated 10th June, 1968 a couple of thousand acres of land covering a few dozen survey numbers. The entire land was acquired and in view of the large area of acquisition even if there was some error in describing the area of a particular survey number, that would be inconsequential given the overall acquisition and its purpose for a Housing Scheme under Section 22A of the Andhra Pradesh Housing Board Act. The entire land in Survey No.1009 was acquired by the APHB. There cannot be any doubt in this regard, particularly since the APHB also took possession of the entire Survey No.1009. [Para 41] [816-C-E]

2.2 While it is correct that the respondents did submit in their claim petition under Section 18 of the Land Acquisition Act, 1894 that 11 acres and odd had not been acquired, there was absolutely no reference to any survey number in which this 11 acres and odd was located. There was no clear identification of the land, no boundaries were mentioned nor was the land earmarked in any manner and in fact even the exact measurement was not mentioned. The respondents were taking a potshot in the dark to somehow or the other retain possession of some of the acquired land. [Para 42] [816-E-G]

2.3 If the respondents were convinced that 11 acres and odd had not been acquired by the APHB in 1968 it is not understandable why no follow up action taken by them. They had an option, perhaps, of proceeding against the APHB for being in wrongful possession of 11 acres and odd owned by the respondents and they certainly had the option of moving an application under Section 87. The respondents took neither of these steps on an urgent basis or any other step that might have been available to them in law. [Para 43] [816-G-H; 817-A-B]

2.4 All that the respondents did was to wait for another 25 years and then move an application under Section 87 of the Act sometime in 1993. There was no change in the factual situation between 1968 and 1993 except construction having been made by the APHB in pursuance of its Housing Scheme. The respondents have given absolutely no explanation for filing an application under Section 87 of the Act after such an enormous lapse of time. What has been submitted is that there is no time limit for correcting a clerical error and that being so, the respondents cannot be non-suited on the ground of delay and laches, cannot be accepted. It is accepted with the APHB that an accurate picture of the area in terms of measurement of land in Survey No.1009 cannot be fully relied upon after several decades and after construction having been made. The records had originally indicated that Survey No.1009 consists of 666.25 acres and it must be proceed on that basis rather than assume the correctness of a measurement carried out after several decades. [Paras 44, 45] [817-B-E]

2.5 That the unexplained delay in measurement of the area cannot be relied upon is also supported by the fact that even the revenue authorities were not quite sure about the exact area of Survey No.1009. According to the respondents, 11.10 acres had not been acquired but according to the revenue authorities the entire area of Survey No.1009 was actually 687.03 acres with the result that 20.18 had not been acquired. In view of this discrepancy, the surveys conducted post the notification under Section 4 of the Land Acquisition Act cannot be relied upon. It has come on record that IDL was also in possession of some parts of Survey No.1009. Thus, it must be accepted that the fact that the entire Survey No.1009 was acquired by the APHB and possession taken, regardless of its actual measurement and the alleged non-acquisition of 11.10 acres is nothing but a red herring. Consequently, the question of correcting a ‘clerical error’ with reference to Section 87 of the Act does not arise. [Para 46] [817-E-H]

2.6 It is not clear what the clerical error was. If the clerical error was that the area of Survey No.1009 was not 661.04 acres or 666.25 acres but actually 687.03 acres then the contention is self-defeating. This is because the area of Survey No.1009 would then have to be read as 687.03 for all purposes and not 661.04 acres. The consequence of this correction would be that the acquisition was of 687.03 acres and not of 661.04 acres. That apart, the correction of the alleged clerical error does not give rise to the argument that only 661.04 acres was acquired out of

687.03 acres. If the correction gives rise to an argument or contention, then it ceases to be the correction of a clerical error but is really the correction of a substantive error, which does not come within the purview of Section 87 of the Act. [Paras 47-48] [818-B-D]

2.7 The Circular dated 15th October, 1994 clarifies a clerical error. One clarification is to the effect that a clerical error is where the area is calculated wrongly though measurement on the ground and the records support the correct area. This clause is sought to be relied upon by the respondents. It must be appreciated in this case that there is no question of a calculation error since no arithmetical error was committed as understood by this Court. The area of Survey No.1009 was measured and it was found to be

666.25 acres (including the area acquired for Manjeera Water Works Department). The survey by the Measuring Circle Inspector, the check by the G.D. Inspector and approved by the Land Record Assistant clearly indicate this. This was sought to be ‘corrected’ by the respondents by claiming that the area of Survey No.1009 was much more. A calculation error would be, in a situation such as the present, an error that would appear on the face of the document or the revenue records, as the case may be. If there is a need to carry out a survey and a re-survey, the error cannot by any means, be described as a clerical error. [Para 52] [819-E-H; 820-A]

2.8 What makes the situation worse insofar as the respondents are concerned is that according to them the error was to the extent of 11.10 acres but on a survey having been conducted, the error was said to be to an extent of 20.18 acres. Surely, such a discrepancy cannot be described as an accidental slip or a clerical mistake or a calculation error. It can only be described as a major error which ought to have been rectified at the appropriate time in 1968 when the Award was passed or soon thereafter. To notice and make much ado about such an error after at least 25 years cannot be understood as the correction of a clerical error. [Para 53] [819-B-C]

2.9. The view expressed in the Circular dated 15th October, 1994 particularly clause 5(d) referred to and relied upon by the respondents does not come within the four corners of the understanding of the expression clerical error by this Court if it involves a survey and a re-survey as in this case. Therefore, no reliance can be placed upon the contemporaneous exposition made by the revenue authorities in the Circular dated 15 th October, 1994. Thus, there was no clerical error in the measurement of Survey No.1009 for all intents and purposes and that in any event, the entire land in Survey No.1009 was acquired for the Housing Scheme of the APHB. [Paras 56-57] [821-C-D]

2.9 The delay by the respondents in making a claim under Section 87 of the Act is not satisfactory. It was submitted that since there is no time limit specified for filing a claim petition, they could have made a claim at any point of time, particularly for correcting a clerical error. It is now well settled that where no time-limit is specified, whatever is required to be done should be within a reasonable period. Insofar as the facts of the present case are concerned, the claim made under Section 87 of the Act was after a period of at least 25 years. This can hardly be described as a reasonable period. There is no explanation for the inordinate delay and to make matters worse, third party interests have been created through a Housing Scheme developed on the land in dispute or in any event on the surrounding land. After a further lapse of 25 years it is not possible to put the clock back, even if there is any reason to do so, which reason, cannot even be visualised in this case. [Paras 58, 59,62] [821-E-F; 823-A-B]

2.10 A tract of land measuring 11.10 acres out of Survey No.1009 was sought to be taken away from the APHB which had announced a Housing Scheme under Section 22A of the Andhra Pradesh Housing Board Act, 1956 and third party rights had also been created in this regard. The primary responsibility of protecting the interests of the beneficiaries of the Housing Scheme was that of the APHB and surely it cannot be said under these circumstances that the APHB had no locus standi to participate in the proceedings. In fact, even the revenue authorities recognised the locus of the APHB in the order dated 15th September, 1997. The Commissioner of Survey, Settlements and Land Records, Hyderabad directed the District Revenue Officer to take action in terms of the Circular of 15th October, 1994 but before passing any orders under Section 87 of the Act, it was directed that the APHB should be heard. [Para 63] [823-D-F]

2.11 The revenue authorities had completely misdirected in law in reopening a factual issue that had been settled way back in 1968 if not earlier and there was no occasion for reopening that factual issue after a lapse of at least 25 years. That being the position, it cannot be said that the courts are precluded from interfering in a matter of determination of facts when the authorities have completely misdirected themselves in law and exercised jurisdiction which did not vest in them. [Para 64] [823G-H; 823-A-B] M/s Tata Consulting Engineers v. Workmen 1980 (Supp.) SCC 627 : 1981 SCR 166; Sooraj Devi v. Pyare Lal. (1981) 1 SCC 500 : [1981] 2 SCR 485; Master

Construction Co. (P) Ltd. v. State of Orissa AIR 1966 SC 1047 : 1966 SCR 99; Vipinchandra Vadilal Bavishi (Dead) by Lrs. v. State of Gujarat (2016) 4 SCC 531 : [2016] 1 SCR 283; K.P. Varghese v. Income Tax Officer, Ernakulum and Another AIR 1981 SC 1922 : [1982]

1 SCR 629; Desh Bandhu Gupta and Co. v. Delhi Stock Exchange Association Ltd. AIR 1979 SC 1049 : [1979]

3 SCR 373; Collector v. P. Mangamma (2003) 4 SCC

488 : [2003] 2 SCR 430; Joint Collector Ranga Reddy District v. D. NarsingRao (2015) 3 SCC 695 : [2015] 1 SCR 437; Basanti Prasad v. Chairman, Bihar School Examination Board (2009) 6 SCC 791: [2009] 9 SCR

367 – referred to.