Himachal Pradesh High Court
Nathpa Jhakri Project Corp. & Anr vs Shri Shibu on 3 October, 2017
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RFA No. 324 of 2010 .
Reserved on: 18.09.2017
Date of decision: 03.10. 2017
Nathpa Jhakri Project Corp. & Anr. ...Appellants
Versus
Shri Shibu ...Respondent
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. Whether approved for reporting?1 Yes.
For the appellants r : Mr. Ramakant Sharma, Sr. Advocate, with Ms. Devyani Sharma and Mr. Basant Thakur, Advocates.
For the respondent : Mr. B. S. Attri, Advocate.
Tarlok Singh Chauhan, Judge Primarily, two points have been raised in the instant appeal assailing the award dated 27.08.2010 passed by the learned Additional District Judge, Kinnaur at Rampur, District Shimla, H.P. in Land Reference Petition No. 426-AR-4/95/92.
2. It is firstly averred that the Reference Court could not have awarded lump sum compensation of Rs. One lac per bigha and secondly, since the respondent-claimant (hereinafter referred Whether the reporters of the local papers may be allowed to see the Judgment?yes.
::: Downloaded on - 03/10/2017 23:00:56 :::HCHP 2to as the 'Claimant') allowed his Reference Petition to be dismissed in default and got it restored only after about 10 years, therefore, he .
is not entitled to the interest for this period.
3. As regards the first contention, it would be noticed that the petitioner itself had agreed to pay Rs. One lac per bigha to all the claimants whose land has been acquired in the village Jhakri vide Award No. 10, dated 27.1.1991and therefore no fault can be found with this part of the award and the point is accordingly answered against the petitioner.
4. As regards the second contention, it would be noticed that the Reference in question was initially dismissed in default on 28.9.1992 and thereafter restored vide order dated 3.5.1993.
Thereafter issues were framed on 17.8.1993, but no evidence was led by the claimant upto 24.11.1994, when the statements of two witnesses were recorded. Thereafter, the evidence of the claimant was closed vide order dated 19.5.1995. However, the case thereafter came to be dismissed in default on 18.4.1998 and application to have the same restored was filed more than 9 ½ years thereafter on 20.11.2007. The Reference ultimately came to be restored on 24.6.2008 i.e. after 10 years of its having been dismissed in default.
::: Downloaded on - 03/10/2017 23:00:56 :::HCHP 35. The learned counsel for the petitioner has vehemently argued that since the Reference Petition was dismissed on account .
of the fault of the claimant, therefore, he is not entitled to interest for the said period.
6. Reliance is placed on the judgment of the Hon'ble Supreme Court in Imrat Lal and others vs. Land Acquisition Collector and others, (2014) 14 SCC 133, wherein even though the Hon'ble Supreme Court condoned the delay of 1110 days, however, the interest for this period was declined as is evident from para-15 of the judgment, which reads thus:-
"15. We appreciate the statement made by the learned Senior Additional Advocate General and hold that the appellants shall be entitled to enhanced compensation at the rate of Rs.1216 per square yard with other statutory benefits. However, it is made clear that the appellants shall not be entitled to interest for the period of delay i.e. 1110 days. The respondents shall pay the amount of enhanced compensation and other statutory benefits to the appellants within a period of six months from today."
7. Reliance is further placed by the petitioner on the judgment of the Hon'ble Bombay High Court in Shankar vs. The State of Maharashtra & another, (2017) SCC Online Bom 7702, wherein the Hon'ble Bombay High Court followed the judgment in Imrat Lal's case (supra) and held the claimant therein not to be ::: Downloaded on - 03/10/2017 23:00:56 :::HCHP 4 entitled to interest on the amount enhanced by the Reference Court on account of delay in approaching the Court.
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8. It would be noticed that in both the cases relied upon by the petitioner, the delay was on the part of the claimants in filing Reference Petition and it was on this count that even though the delay was condoned but the claimants therein were not entitled interest to the delayed period.
9. The proposition that a Reference cannot be dismissed in default and has to be answered by the Court in absence of the parties is no longer res integra in view of the judgment of the Hon'ble Supreme Court in Khazan Singh (Dead) by LRs. vs. Union of India, AIR 2002 SC 726.
10. Similar question as posed before this Court was a subject matter of decision before the learned Single Judge of the Hon'ble Delhi High Court in Union of India vs. Shaukat Rai, 2010 (7) RCR (Civ) 2163, wherein after placing reliance on the judgment of Hon'ble Supreme Court in Khazan Singh's case (supra), it was observed as under:-
"4. Feeling aggrieved with the Award of the Reference Court only to the extent that it granted interest to the claimants even for the period when the Reference was not pending because of its dismissal-in-default, the Union of India has come up in appeal. Mr. Sanjay Poddar, learned counsel for the appellant, submitted that the Reference Court had while restoring the ::: Downloaded on - 03/10/2017 23:00:56 :::HCHP 5 Reference, which was earlier dismissed in default due to nonappearance in the matter on behalf of the claimants seeking enhancement in compensation, specifically put a .
condition for restoration that the claimants in the event of succeeding finally in getting enhancement in compensation would not be entitled to get interest on the enhanced amount for the period during which the proceedings were not pending and that order was not challenged by the claimants and so the successor Judge could not have ignored that order and awarded interest for the period the Reference was not pending. Mr. Poddar submitted that the direction for payment of interest in the impugned order could not have been passed on the principles of res-judicata. It was also contended that the claimants having not challenged the earlier order of the Court disentitling them to get interest were estopped from claiming the same subsequently in the same proceedings since in fact it was impliedly on their representation to the Court that they would not claim interest if their Reference was restored, that the Reference was restored by the Court. It was also contended that even if the Reference could not have been dismissed in default, as observed in the impugned order and the Court could not have passed an order at the time of restoration of the proceedings that the claimants seeking enhancement in compensation would not be entitled to claim interest for the delayed payment even in the event of their succeeding finally, the claimants having not challenged that order can be said to have waived their right to get interest. In support of these submissions Mr. Poddar also cited some judgments of the Supreme Court which are, "Union of India v. Pramod Gupta (D) by LRs and Ors., 2005 7 Scale 187"; "Arjun Singh v. Mohindra Kumar and others, 1964 AIR(SC) 993"; "Satyadhyan Ghosal and ors. v. Smt. Deorajin Debi and another, 1960 AIR(SC) 941". One judgment of this Court, "Chander v. Union of India, 2005 122 DLT 517" was also cited in ::: Downloaded on - 03/10/2017 23:00:56 :::HCHP 6 addition to some unreported decisions of this Court. Those decisions were given in RFA No. 517/1998(decided on 17/09/2007); RFA No. 623/1988, "Jagmohan and others v. UOI .
and others", 2006 131 DLT 374 = (decided on 25/07/2006); and in WP(C) No.1282/1978, "The Radha Soami Satsang Beas and Anr. v. The Delhi Administration and Anr." (decided on 15/10/2004).
5. On the other hand, learned counsel for the respondents supported the impugned decision of the Reference Court awarding interest to the respondents even for the period during which the Reference had remained dismissed and reliance was placed on the decision of the Supreme Court in "Khazan Singh (dead) by LRs. v. Union of India", 2002 1 SLT 387, which has been relied upon by the Reference Court also while holding that the Reference could not have been Union of India v. Shaukat Rai (D) Through Lrs (Delhi) dismissed in default and so for the fault of the Court the claimants could not be allowed to suffer by denying them the benefit of interest. Counsel also cited another judgment of the Supreme Court in "Jet Ply Wood Private Ltd. & Anr. v. Madhukar Nowlakha & Ors., 2006 2 SLT 518, wherein it was held that the Courts can act ex debito justitiae for doing real and substantial justice.
6. After giving my thoughtful consideration to the rival submissions and having gone through the judgments cited from both the sides I do not find any merit in this appeal filed by the Union of India. The grant of interest for the period during which the Reference had remained dismissed by the Reference Court in the final award has been impugned on the ground that the earlier order of the Reference Court passed while restoring the Reference had attained finality and subsequently while disposing of the Reference the learned Additional District Judge could not have recalled that order of the predecessor ::: Downloaded on - 03/10/2017 23:00:56 :::HCHP 7 Judge since the principles of resjudicata get attracted in this fact situation. However, I do not find any merit in this contention. At the time when the Reference came to be .
restored by the Reference Court the question of grant or rejection of interest to the claimants was not the point in dispute between the parties and so there can be no question of applicability of the principles of res-judicata. The two judgments of the Supreme Court cited by Mr. Poddar in support of his contention regarding applicability of the principle of resjudicata do not help the appellant in any way since in those cases the question was not as to whether the Court can or cannot rectify its own mistake to prevent injustice being caused to one of the parties before it by invoking the maxim Actus curiae neminem gravabit. The Reference Court has in the impugned judgment relied upon the decision of the Supreme Court in Khazan Singh's case wherein it has been observed that a Reference cannot be rejected because of non-appearance of the parties and the Reference Court is supposed to give its award one way or the other whether the parties chose to appear in the matter or not. So, no fault can be found with the decision of the Reference Court in following the said judgment of the Supreme Court and preventing injustice being caused to the claimants because of the fault of the Court itself by denying them the benefit of interest on the enhanced compensation which invariably is awarded to the successful claimants seeking enhancement in compensation awarded by the Land Acquisition Collector. The following observations made in a Full Bench decision of this Court in the case of Chander v. Union of India which was cited by the learned counsel for the appellant himself also supports the view taken by me : "25. One has to bear in mind the distinction between inviting an order of the Court and the Court making an order of its own. In a case where the Court has made an order of its own of staying the proceedings, then the claimant ::: Downloaded on - 03/10/2017 23:00:56 :::HCHP 8 should not be asked to suffer. In such a situation it was open to the other side to move the higher forum with the request to proceed with the matter so as to avoid the payment of .
amount of interest for the interregnum. In the case of M/s. Lekh Raj and Co. v. Union of India and Others, Civil Appeal No. 5690 of 1985 decided on 24.3.1992, the Apex Court in a somewhat similar situation, where the Court had stayed proceedings of its own and refused to grant interest during the interregnum for the period 17.11.1968 to 23.7.1974 as there was a stay order, pointed out that - "Though the grant of interest under Section 28 of the Land Acquisition Act is discretionary with the Court but in the facts and circumstances of this case, we are of the view that the discretion has wrongly been exercised by the High Court. A dispute of apportion of compensation under Section 30 of the Act is the progeny of the Act and since the Court thought to stay the proceedings for enhancement of compensation, the act of the Court in these circumstances could not go to prejudice the accrual of interest on compensation which was kept retained by the State in the interval". It is in view of this the Apex Court allowed interest for the period for which it was de- clined. On behalf of the Union of India it was submitted that in the instant case it is not an act of the Court, but the claimant being not certain about his entitlement made an application to the Court, inter alia, requesting to stay the proceedings, with a further condition that he would not claim the amount of interest and under these circumstances the interest was denied and, therefore, the claimant is not entitled to claim any interest."
7. There is also no force in the argument of the learned counsel for the appellant that the claimants were estopped from claiming interest for the period during which Reference had remained dismissed because of their having not challenged the order passed by the Reference Court at the time of ::: Downloaded on - 03/10/2017 23:00:56 :::HCHP 9 restoration of the Reference denying them the benefit of interest in advance. Learned counsel for the appellant had not stated before me that it was on the representation of the .
claimants that they would not claim interest in future even if they succeed that Reference Court passed the direction to that effect while restoring the Reference. So, there was no question of principle of estoppel also coming in the way of the claimants in claiming interest from the Reference Court when the stage to claim the same reached.
8. I have gone through all the judgments cited by Mr. Poddar and I find that none of them helps the appellant. In none of those decisions the question whether a Reference petition under Section 18 of the Land Acquisition Act can be dismissed because of non-appearance of the claimants had come up for consideration. In some of the decisions interest was denied to the claimants because on their request Reference proceedings were stayed by the Reference Court and for that reason it had been held that the claimants were not entitled to interest for the period the Reference proceedings had remained in abeyance at request of the claimants. In the present case, as noticed already, the claimants had not been instrumental in the delay caused in the disposal of the Reference petition. The delay occurred because of the fault of the Reference Court in dismissing the Reference petition for non-prosecution instead of deciding the same on merits and so the Reference Court did nothing wrong in giving the benefit of interest to the claimants while finally disposing of the Reference.
11. However, the learned Single Judge of Hon'ble Madras High Court in Union of India vs. B Kannagi, 2010 LawSuit (Mad) 2003, case No. 455 of 2001 decided on 16.06.2010 while dealing with the ::: Downloaded on - 03/10/2017 23:00:56 :::HCHP 10 case where the Reference had been dismissed in default on 11.04.1979 and was restored only on 02.11.1993, held that Principal .
District Judge was perfectly right in disallowing interest for the period between 11.04.1979 and 02.11.1993. It is apt to reproduce the relevant observation as contained in para - 23 of the judgment which reads thus:-
"23. For the said amount of enhanced compensation, in the normal circumstances, claimant shall be entitled to an interest from the date on which possession was taken for a period of one year @ 9% per annum and thereafter @ 15% per annum. However, since the respondent/claimant had allowed the LAOP to be dismissed for default on 11.04.1979 and the same was restored only on 02.11.1993, the learned Principal District Judge is perfectly right in disallowing interest for the said period between 11.04.1979 and 02.11.1993. But the learned Principal District Judge has chosen to award interest only from the date of restoration of the LAOP and the exclusion of the period from the date of possession up to the date of dismissal of the LAOP for default shall not be justified. The award was passed on 31.03.1978. There is no evidence regarding the date on which possession was taken by the government. Therefore, suffice to state that the respondent/claimant shall be entitled to an interest on the above said enhanced compensation for a period of one year from the date of possession @9% per annum and for the subsequent period @ 15% per annum and that the period between 11.04.1979 to 02.11.1993, during which period the LAOP stood dismissed for default should be excluded from the period eligible for calculation of interest as aforesaid."::: Downloaded on - 03/10/2017 23:00:56 :::HCHP 11
12. To similar effect is the judgment of the learned Single Judge of Hon'ble Karnataka High Court in Parvathamma vs. Asstt.
.
Commissioner-cum-Land Acquisition Officer, 2014 ILR (Kar) 146, while dealing with a case wherein the original claimant died on 19.9.2010 and it was after about little over two years the legal representatives moved an application for impleading them as parties to the lis. The Reference Court dismissed the application merely on the ground that they had not produced the heirship certificate and had not offered any acceptable explanation for condoning the delay of two years. The Hon'ble Karnataka High Court allowed the petition by directing the petitioners to produce heirship certificates so as to satisfy the Reference Court. However, to balance equities and to ensure that the State exchequer does not suffer for no lapse on its part, it allowed the petition with a rider that if the parties herein (the legal representatives of the deceased claimant) succeed in getting the market value enhanced in the Reference even then they would not be entitled to the interest for the period from the death of the claimant till the date of the making of the three applications in question. Meaning thereby, that they would be entitled to the interest only for the period anterior to the date of the death of the claimant and posterior to the date of ::: Downloaded on - 03/10/2017 23:00:56 :::HCHP 12 their making the applications seeking the impleadment. It is apt to reproduce relevant observations, which reads thus:-
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"5. It is trite that when the lands are compulsorily acquired for a public purpose, the landowner is entitled to get the fair and just compensation. If the reference applicant does not prosecute the matter diligently or if he dies and his legal representatives do not make the necessary applications within the prescribed period, to come on record, the respondent's award, which is only in the nature of an offer, does not attain the finality. That amounts to approving of the respondent's award determining the market value. As held by the apex Court in the case of Khazan Singh (Dead) by Lrs. v. Union of India, 2002 2 SCC 242, the non-participation of a party would not confer jurisdiction on the Reference Court to dismiss the reference for default. It is impermissible to dismiss the reference for default.
6. When once a reference is made under Section 18 of the L.A. Act, then the Reference Court is bound to issue notice to all the persons interested in the reference and proceed to determine the reference under Section 20 and make an award under Section 26 of the L.A. Act, even if the person at whose instance the reference is made, fails to appear before the Reference Court or fails to produce evidence in support of his evidence. The Madhya Pradesh High Court in the case of Mangi Lal v.
State of M.P., 1991 AIR(NOC) 98 (MP) has held as follows:
It is manifest that when once a reference under S.18 of the Land Acquisition Act is made, then the Court has to make an award under S.26 of the Act even if the person at whose instance the reference is made fails to appear before the Court or fails to produce evidence in support of his petition. In a reference proceeding under the provisions of S.18 of the Land Acquisition Act there cannot be any dismissal or abatement of the reference proceeding. A proceeding under S.18 is not a proceeding under the Civil Procedure Code and, ::: Downloaded on - 03/10/2017 23:00:56 :::HCHP 13 therefore even by virtue of S. 53 of the Land Acquisition Act it cannot be held that the provisions of the Code of Civil Procedure apply to the reference proceeding in all respect.
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7. I may usefully refer to this Court's decision in the case of M.S. Ramaiah and Others v. Special Land Acquisition Officer, 1974 AIR(Kar) 122 The relevant portions of the said judgment are extracted hereinbelow:--
3. ...When such a reference is made to the Court, it is the duty of the Court under the Act to determine the amount of compensation payable for the land or lands acquired. The Court has no jurisdiction to refuse to determine the amount of compensation even where the claimant remains absent or where he is present, fails to adduce evidence.... If on the basis of the data furnished in the award of the Land Acquisition Officer, the Court r finds that the market value of the land has not been determined in accordance with settled principles of valuation, the Court has to determine the compensation in accordance with such principles on the basis of the data available on record. Therefore, the Court has to apply its mind and make an award and cannot blindly confirm the award of the Land Acquisition Officer.
8. It is also profitable to refer to this Court's decision in the case of Chandramouli @ Chandrakant & Another v. The Special Land Acquisition Officer,1999 2 KCCR 1129, wherein it is held that the Reference Court is legally bound to proceed to pass an award under Section 26 of the L.A. Act adjudicating the claimant's claim to the enhanced compensation, on the basis of whatever dependable material was available on record.
9. The Gujarat High Court's judgment in the case of Alihusain Abbasbhai and Others v. Collector, Panch Mahals, 1967 AIR(Guj) 118 is of immense value in deciding this case. It has this to say in paragraph No. 7 of its decision:--
7. It is, therefore clear, that when the applicant died during the pendency of the reference, the petitioners as the heirs and legal representatives of the applicant ::: Downloaded on - 03/10/2017 23:00:56 :::HCHP 14 were entitled to make an application to the court for bringing themselves on record under Order 22 Rule 3 sub-rule (1). But the question is whether they were bound to make such application within any particular .
period. It is only if a time for making such application was limited by law that the failure to make such application within the time so limited could invite the penalty of abatement under Order 22 Rule 3 sub-rule (2). The controversy between the parties, therefore centered round the question as to whether any time was limited by law for the purpose of making an application by the heirs of a deceased applicant in a pending reference for bringing themselves on record....
It is, therefore, evident that a reference is neither a suit nor a deemed suit and Article 176 of the Limitation Act has, therefore, no application to it. If that Article does not apply, there is no other Article which can possibly be invoked on behalf of the Collector and it must be held that no time is limited by law for making of an application by the heirs of a deceased applicant for r bringing themselves on record in the reference. Some reference was made to Article 181 which is a residuary Article providing a period of limitation for an application for which no period is provided elsewhere in the first Schedule but this Article provides a period of three years and even if it were applicable, the application of the petitioners in the present case for bringing themselves on record as heirs of Abbasbhai would be within time. The learned Civil Judge was, therefore, in error in holding that the reference had abated by reason of the petitioners having failed to make an application for brining themselves on record within a period of ninety days from the date of death of Abbasbhai and in dismissing the reference as having abated, he refused to exercise jurisdiction to entertain the reference which was vested in him by law.
10. The denial of fixation of the fair market value and pinning down the legal representatives of the deceased claimant to the amounts awarded by the respondent Land Acquisition Officer is not in the letter and spirit of the provisions contained in Part III of the L.A. Act. While considering the L.R. applications, etc., the approach of the Reference Court should be liberal so as to effectuate the intents of the L.A. Act.
::: Downloaded on - 03/10/2017 23:00:56 :::HCHP 1511. In the result, I quash the impugned order. The petitioners are directed to produce the heirship certificates, etc. to show and satisfy the Reference Court that they are the legal heirs of the .
deceased claimant. If there is still any doubt about their being the legal representatives of the deceased claimant, it is open to the respondent to collect the necessary materials and place them on the record of the Reference Court. If the Reference Court is satisfied that the parties herein are indeed the legal representatives of the deceased claimant, it shall not throw them out only on the ground that they have made the time barred applications.
12. At the same time, it is also this Court's anxiety that the exchequer's interest should not suffer for no lapse on its part. To balance the equities and safeguard the interests of both the land-losers and of the Government, I deem it necessary and just to allow these petitions with the rider that if the parties herein (the legal representatives of the deceased claimant) succeed in getting the market value enhanced in L.A.C. No. 255/2006, they are not entitled to the interest for the period from the date of the death of the claimant till the date of the making of the three applications in question. It is made clear that they are entitled to the interest for the period anterior to the date of the death of the claimant and posterior to the date of their making the three applications. These petitions are accordingly allowed. No order as to costs.
13. It would be noticed that there is a conflict of opinion between the judgments of Hon'ble Delhi High Court on the one side and the Hon'ble Madras and Karnataka High Courts on the other side.
14. The Hon'ble Delhi High Court has held the action of the Reference Court in dismissing the Reference in default to be illegal ::: Downloaded on - 03/10/2017 23:00:56 :::HCHP 16 on the basis of the judgment of the Hon'ble Supreme Court in Khazan Singh's case (supra). Therefore, the claimants therein were .
held entitled to the interest for the entire period when the Reference Petition was dismissed in default till the date of its restoration.
15. While the Hon'ble Madras High Court has though not taken note of Khazan Singh's case (supra) but has held the claimant to be dis-entitled for the interest for the period when the Reference Petition was dismissed for default till the same was restored. Whereas the Hon'ble Karnataka High Court after noticing the judgment of Hon'ble Supreme Court in Khazan Singh's case (supra) has taken into consideration the interest of the exchequer which according to it should not suffer for no lapse on its part and, therefore, to balance the equities and safeguard the interests of both the land-losers and of the government, the Court held the claimant to be not entitled to the interest for such period, in the event of the Reference Petition finally succeeding before the Reference Court.
16. To my mind, the view taken by the Hon'ble Karnataka High Court is more sound in law because even if the Reference Court could not have dismissed the Reference Petition in terms of Khazan Singh's case (supra), even then it is incumbent upon the ::: Downloaded on - 03/10/2017 23:00:56 :::HCHP 17 claimant to have taken steps to have the petition restored within a reasonable time and delay of about nine and half years to move .
the application of restoration by no standard can be said to be reasonable.
17. That apart, it would be noticed that the judgment of the Hon'ble Supreme Court in Khazan Singh's case (supra) was rendered only on 24.1.2002 and earlier to that the legal position was in state of afflux and it was a common practice that all the Courts in absence of the claimant or his counsel, like any other petitions, the references were being dismissed in default for want of prosecution.
18. Therefore, following the ratio of the judgments laid down by Hon'ble Madras and Karnataka High Courts, I hold the claimant to be dis-entitled to the interest for the period when the Reference Petition was dismissed in default i.e. 18.04.1998 till date of the filing of the application for restoration i.e. 20.11.2007.
19. In view of the aforesaid discussion, the appeal is partly allowed. The appeal against the award of lumpsum compensation of Rs. One lac per bigha is dismissed, However, the appeal in so far as it relates to the grant of interest for the period when Reference Petition was dismissed in default till the date of filing of application for restoration i.e. 18.04.1998 to 20.11.2007 is set aside and the ::: Downloaded on - 03/10/2017 23:00:56 :::HCHP 18 claimant/respondent is held dis-entitled to the interest for the said period.
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20. The appeal is disposed of in the aforesaid terms, leaving the parties to bear their own costs. Pending application(s), if any, also stand(s) disposed of.
October 3, 2017 (Tarlok Singh Chauhan)
(Sanjeev) Judge
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