Delhi High Court
Shri Shiv Dhan Singh (Since Deceased) ... vs Union Of India (Uoi) on 19 July, 2002
JUDGMENT Devinder Gupta, J.
1. In these applications the claimants/ appellants are praying that they may be given benefit of the judgment of this Court dated 4.9.2001 in RFA No. 888 of 1987 ( Jas Rath v. Union of India) and consequently the claimants/ appellants be also held entitled to compensation at the same rate of Rs. 95/- per sq.yard, which has been allowed to the other claimants/appellants in a number of connected appeals decided on 7.9.2001.
2. The back ground in filing these applications is that consideration land in village Rithala, Delhi was acquired for public purpose through notification issued under Sections 4, 6 and 17 of the Land Acquisition Act, 1894 (for short "the Act") on 20.2.1981. Collector proceeded to make his award No. 20/82-83 and offered compensation at the rate of Rs. 3,000/- per bigha for irrigated land and at the rate of Rs. 2,600/- per bigha for unirrigated land. Feeling dissatisfied claimants had sought references. The Reference Court answered the references by various awards holding the claimants entitled to compensation at the rate of Rs. 20,000/- per bigha. Still feeling dissatisfied appeals were filed under Section 54 of the Act in this Court. Appeals of the claimants/appellants, were dismissed in liming, in which the claimants had sought further enhancement in the amount of compensation. Appeals of some other claimants were admitted were dismissed in liming further appeals were filed to the Supreme Court. Some of the appeals were dismissed by the Supreme Court on the ground of delay. The appeals of the claimants/appellants who have now filed these applications were also dismissed on account of delay. Few other appeals, which were not so dismissed by the Supreme Court were allowed when it was brought to the notice of the Supreme Court that the High Court had already admitted a few appeals in which the claimants had sought further enhancement in the amount of compensation. With respect to their lands, which was also acquired under the same notification and arising out of the same award of the Collector Land Acquisition. Taking note of these submissions, the Supreme Court by its judgment dated 30.1.1990 in Civil Appeal Nos. 1001-05 of 1990 ( Bir Singh and Ors. v. Union of India etc. etc. allowed these appeals and set aside the order of dismissal of their appeals and remanded the appeals for being decided afresh in accordance with law observing:--
"It appears to us that if in respect of comparable lands, which were acquired under the same notification and respecting which the valuations made by the Collector suggest the element of comparability, are entertained by the High Court, there is no reason why the present appeals should have been rejected at the admission stage. Accordingly, these appeals are allowed, the judgment and decrees under appeal set aside and the appeals are remitted to the High Court for a fresh disposal along with RFA Nos. 182/88, 365/88 and 314/89 in accordance with law. We however make it clear that we record no final finding on the contention that the lands concerned in the two sets of appeals are of the same quality or value. That question will have to be decided by the High Court in the appeals.
3. Division Bench of this Court heard and decided such appeals, which were remanded by the Supreme Court and other appeals, which were admitted for hearing. By a common judgment delivered in Jas Rath v. Union of India RFA No. 888/87 Division Bench of this Court determined the fair market value payable for such lands, situate in village Rithala, which had been acquired for same public purpose by notification dated 20.2.1981 issued under Sections 4, 6 and 17 of the Act at the rate of Rs. 95,000/- pere bigha, irrespective of classification.
4. In the aforementioned background the claimants/appellants in these applications have prayed that as their lands were also similarly situate and were located within the same revenue estate and were acquired under the same notification for the same public purpose, as such, there is no reason that why the claimants/appellants be deprived of fair amount of compensation. There is also no reason to discriminate the applicants vis-a-vis the payment in the amount of compensation especially when the State has acquired the land for public purpose at public expense. It was urged that the Supreme Court in Reliance petroleum Limited v. Zaver Chand Popatlal Sumaria and Ors.
had extended the benefit of higher compensation awarded by the Courts to similarly placed persons, whose land was acquired through the same notification and covered by the same award of the Collector. The applicants alleged that on 7.11.2001 a representation was submitted before the Collector Land Acquisition to reconsider the case of the claimants/appellants and to allow them the same benefit. The said representation is still pending and no action has been taken thereupon. It is further alleged that the claimants/appellants were then advised to invoke the extra ordinary jurisdiction of this Court under Article 226 of the Constitution of India by filing writ petition, which was filed but on further advise the claimants moved an application before learned Single Judge seeking permission to withdraw the said writ petition. Under fresh legal advise these applications were being moved for allowing similar benefits.
5. The case of the claimants/appellants is that their lands were also similarly situate having same and similar advantages. Hardly there was any difference as regards situation and potentiality. As such there is no reason to deprive them of the same amount of compensation. Allowing similar benefits would also be in consonance with the principle as has been recognised by the Legislature when Section 28A was inserted in the Act by the Land Acquisition (Amendment) Act, 1984 laying down a policy to give equal compensation to all whose lands are compulsorily acquired by Government under the same notification for same public purpose and covered by the same award.
6. The prayer of the appellants has vehemently been opposed on behalf of the respondents, who have raised preliminary objection about maintainability of the applications and on merits alleging that in so far as the case of the claimants/appellants for further enhancement in the amount of compensation, the same has attained finality because of the decision of the Supreme Court when their appeals were dismissed because of limitation.
7. Learned counsel for the claimants/appellants have placed reliance upon Article 300A of the Constitution of India or order to press home the submissions of being allowed compensation at par with those who have been allowed higher amount of compensation especially when it is no the case of the respondents that the claimants/appellants land was in any manner inferior to the land of those to whom enhanced amount of compensation has been allowed. Mr. V.P. Singh, Senior Advocate, appearing for the claimants/appellants urged that this Court had inherent jurisdiction of doing justice, which demand that all persons similarly situate be treaded equally especially in the matter of payment of compensation when State deprives them of their property since Article 300A of the Constitution of India says that no person can be deprived of his property otherwise than in due course of law. Requirement of law will not be met till adequate amount of compensation is paid as was laid down by Supreme Court in Bhag Singh v. Union Territory of Chandigarh .
The appellants/claimants had sought reference. Reference was answered by the Reference Court. The claimants/appellants still feeling dissatisfied with the determination of the amount of compensation by the Reference Court filed statutory appeals to this Court, which was dismissed in liming without any determination. Further appeal of the appellants was also dismissed solely on technical ground of limitation. On the other hand the other appeals, arising out of the same award were admitted by this Court. Some of the appeals, which had also been dismissed in liming were remanded by the Supreme Court for fresh determination in accordance with law, after taking note of the fact that the question of determination of the amount of compensation was already pending adjudication. Therefore, there should be a direction in favor of the appellants for being paid compensation as was determined in Jas Rath's case (supra) in whose case final determination has now been made.
8. Learned counsel for the respondent urged that the Land Acquisition Act is a self contained Code. All rights for payment of compensation are required to be adjudicated upon in accordance with the provisions of the Act. Determination has to be in accordance with law. The appellants had sought references, which were answered. They could have filed appeals, which were filed but were dismissed. Further appeals were also dismissed by the Supreme Court. As such the decision in their case attained finality. The present applications will be barred by the principles of res judicata and moreover such miscellaneous applications under Section 151 of the Code of Civil Procedure after final judgment are not be maintainable. It will also not be possible for this Court to exercise powers of review under Order 47 Rule 1 of the Code of Civil Procedure more particularly when the judgment of this Court has been affirmed by dismissal of the appellant's appeal in liming by Supreme Court.
9. We have duly considered the submissions made by learned counsel for the parties and been gone through the record.
10. There is no manner of doubt that the machinery provided under law for determination of the amount of compensation and for deciding all other matters arising out of acquisition of a person's property are required to be determined in accordance with the provisions contained in the Land Acquisition Act, 1894. The Act has laid down the manner of seeking reference for enhancement of the amount of compensation, in case the person interested feels dissatisfied with the amount of compensation offered to him by the Collector Land Acquisition. The award of the Reference Court, by virtue of the provisions of Sub-section (2) of Section 26 of the Act is deemed to be a decree within the meaning of Section 2, Clause (2) and Section 2 Clause (9) respectively of the Code of Civil Procedure, 1908. Against the award of the Reference Court, notwithstanding anything contained to the contrary in any other enactment and subject to the provisions of Code of Civil Procedure, an appeal lie under Section 54 of the Act to the High Court and from any decree of the High Court, further appeal lie to Supreme Court, subject to the provisions contained in Section 100 and Order 45 of the Code of Civil Procedure.
11. The legislative policy of allowing similar amount of compensation to all interested persons. Who feel aggrieved by the award of the Collector Land Acquisition now finds incorporated in Section 28A of the Act, even if no reference is sought by a person interested, in case he had not accepted the award of the Collector and also to those who could not, for one reason or other, seek reference. Provision has now been made for seeking re-determination of the amount of compensation in certain eventualities, after the amount of compensation is determined by the Court.
12. Learned counsel for the claimants/appellants frankly and rightly so conceded that the appellants are not seeking re-determination of the amount of compensation since their case is not covered by any of eventualities, as are contained in Section 28A of the Act but are seeking parity in the amount of compensation only on the basis of the liability of the State, which stands incorporated in Article 300A of the Constitution of India and as recognised in Bhag Singh's case (supra) and also by a Division Bench of this Court in Ram Mehar v. Union of India .
13. In Ram Mehar's case (supra) review application was decided by a Division Bench on 9.1.1986. Ram Mehar's land situate within revenue estate of village Moradabad Pahari was acquired by notification dated 24.10.1961. He felt aggrieved by the award of the Collector Land Acquisition and had sought reference. After the reference was answered an appeal was filed to this Court. In the meanwhile, another appeal (RFA No. 522/71) Bansi Lal and Ors. v. Union of India, arising out of the same award of the Collector Land Acquisition where subject matter of acquisition was also the land situate within the same revenue estate and acquired under the same notification issued under Section 4 of the Act was decided. In the said appeal market value of similar land situate in Moradabad-Pahari through the same notification was assessed higher than in Ram Mehar's case. Ram Mehar then sought review, which was allowed by the Division Bench. It was held that Ram Mehar was not entitled to approach the Collector for re-determination of the amount of compensation under Section 28A of the Act and there was also embargo under Order 47 Rule 1 C.P.C. since the Court had no inherent power of review apart from the provisions of Order 47 Rule 1 C.P.C. It was held that if a case really falls outside the ambit of the classes contemplated by the Rule 1 of Order 47 of the coe, the Courts have exercised inherent powers to review their orders, judgments and decrees, in order to do justice between the parties, for which reliance was placed on a number of decisions of Supreme Court including that of Bhag Singh. In Bhag Singh's case (supra) it was held that it would not be fair and just to deprive the holders of their land without payment of the true market value when the law, in so many words, declares that they shall be paid market value. Since right to receive compensation arises when the land of a person is acquired and the determination of the compensation is the duty of the court under the Act, the Court is required to compute and quantify the true market value. It was thus held in Ram Mehar's case (supra) that as the Court had recently determined the true market value of the land within the same revenue estate and may be in Ram Mehar's appeal assessment was made at a lower side because of the evidence placed on the record in the said case but that should not come in the way of the claimants in seeking enforcement of the mandate to pay true value of the acquired land, particularly when the other owners of the adjoining and contiguous similar land had been paid true market value quantified in some other case. Accordingly, Ram Mehar was also held entitled to compensation at the same rate.
14. Learned counsel for the respondent urged that Ram Mehar's judgment was held not bad in law in subsequent decision in Ghisa v. Union of India 1997 (42) D.R.J. 308 and in Ganga Ram's case reliance was placed on the decision of Supreme Court in Mewa Ram (deceased by L.Rs.) and Ors. v. State of Haryana . Learned counsel for the respondent has not bring home his point that placing reliance upon in Ram Mehar's judgment benefit cannot be given to the appellants. Not only reliance upon Mewa Ram's case (supra) but also other decisions of Supreme Court in Mewa Ram's case (supra) but also other decisions of Supreme Court in Union of India and Ors. v. Pratap Kaur (Smt.) (Dead) through L.Rs. and Anr. ; State of Maharashtra v. Maharau Srawan Hatkar ; and State of Punjab and Anr. v. Babu Singha and Ors. 1992 Supp (3) S.C.C. 406.
15. It was urged that as the appellants had failed to seek determination in their appeals independently, therefore, the mere fact that in some other cases compensation had been enhanced that alone will not furnish a ground for reopening of determination of the amount of compensation, which had become final. Learned counsel for the respondent placed reliance upon Babua Ram and Ors. v. State of U.P. and Anr. (1995) 2. S.C. 689; G. Krishna Murthy and Ors. v. State of Orissa (1995) 2. S.C. 733; D. Krishna Veni and Anr. v. State of Orissa and Ors. ; Union of India and Anr. v. Pradeep Kumari and Ors. ; Hukam Chand and Ors. v. State of Haryana and Ors. ; Ramesh Singh (dead) by L.Rs. and Ors. v. State of Haryana and Ors. and Bai Shakriben (Dead) by Natwar Melsingh and Ors. v. Special Land Acquisition Officer and Anr. and urged that even under Order 47 Rule 1 C.PC. it will not be permissible to invoke the powers of review to allow the claim of the claimants/appellants.
16. As regards the plea of non-maintainability of the application due to dismissal of the SLP filed by the claimants on the ground that the same was not competent due to delay, it may be observed by us that there is no question of the applicability of doctrine of merger. It has to be remembered that the appellant's appeal to this Court was dismissed in liming without any speaking order. Further SLP to the Supreme Court was also dismissed without determination observing that it was not maintainable since it was not in time. Thus there has been no determination of the compensation payable to the claimants/appellants either by this Court or by the Supreme court. Determination of the amount of compensation was made only by the reference court in so far the claimants/appellants are concerned. Whereas in those cases where the appeals were dismissed in liming by this Court and further appeals were filed to the Supreme Court in which there was no delay, the order of dismissal in liming of this Court was set aside and the appeals were remanded for fresh determination in accordance with law solely on the ground that some other appeals were already pending. The aforequoted observations were made, as have been noticed by us in our earlier part of the order. Had there been any determination by this Court on merits in the appellants appeal and on further rejection of the appellants appeal on merits by the Supreme Court's decision would arise. When the appeal to this Court was dismissed in liming, there is no question of applicability of the doctrine of merger. Reference may be made to the decision of Supreme Court in Kunhayammed and Ors. v. State of Kerala and Anr. . It was held that dismissal of SLP is not dismissal of appeal but of Special Leave Petition and, therefore, doctrine of merger will not apply. Therefore, the ground of maintainability of the application has to be negatived.
17. In Bhag Singh's case (supra) Supreme Court in not uncertain terms laid down an obligation on the State to pay market value to a person, who is deprived of his land. It was also held that not making payment of the true market value will amount to discrimination, even if claimant has not been in a position to pay full amount of court fee. Supreme Court laid emphasis upon Court's obligation to afford opportunity to such a claimant of make up the deficit court fee so that like other claimants, they could also get enhanced compensation at the same rate as the others. Division Bench of Punjab and Haryana High Court in that case had declined Bhag Singh and others an opportunity to pay deficient court fee. Supreme Court held that Division Bench should not have adopted a technical and narrow approach and denied the benefit of enhanced compensation merely because they had not initially paid proper amount of court fee. Supreme Court observed that it should be remembered that this was not a dispute between two private citizens where it would be quite just and legitimate to confine the claimant to the claim made by him and not to award him any higher amount than claimed though even in such a case there may be situations where an amount higher than the claimed can be awarded to the claimant.
18. Bhag Singh's case (supra) is a decision by three Judge Bench. This aspect of the case that there was no merger because there has been no adjudication of the market value either by this Court or by Supreme court in appellants case thereby debarring them from claiming similar benefit was not considered and examined in Ghisa's case (supra) and Bhag singh's case (supra) was not referred to in Mewa Ram's case (supra). Therefore, the approach, which in such like cases has to be adopted is the one of equity to ensure that all persons who have been deprived of their land, since they can only be deprived in accordance with law, as envisaged under Article 300A of the Constitution, the constitutional mandate is to tender such compensation, which is the true market value, as determined in accordance with law. In other words, it is the final adjudication of the compensation, may be it is in one case or the other. The decision relied upon by learned counsel for the respondent thus will not apply to the facts and circumstances of the case. It is not a question of redetermination of the amount of compensation by this Court on the parity of the policy enshrined in Section 28A of the Act but adopting the approach of equity to ensure that all persons who have been deprived of their property are paid compensation similar to those to whom it has already been given since in the case of applicants there has been no determination by this Court.
19. Even if by virtue of one reason or the other the claimants were not able to make payment of the court fee, an opportunity deserves to be allowed to them make good the deficient in court fee within a reasonable time, as held in Harcharan v. State of Haryana ; Scheduled Caste Co-operative Land Owning Society Ltd., Bhatinda v. Union of India and Ors. 1991(1) S.C. 174; Gokal v. State of Haryana ; Chand Kaur and Ors. v. Union of India and Buta Singh (dead) by L.Rs. v. Union of India . Similarly, in case such a person comes before the Court for being allowed the benefit of enhanced compensation within a reasonable time, such a prayer deserves to be allowed. Not allowing such a prayer would amount to discrimination on the part of the State, as observed in Bhag Singh's case (supra). By not making payment of the market value would amount to depriving the person of his property otherwise than in due course of law. The applications thus deserve to be allowed.
20. The applications in question are allowed. On allowing of the applications, the orders of dismissal of appeals shall stand recalled and the same shall stand allowed to today's order with proportionate costs. The respondents are directed to pay to the appellants compensation, as has been determined in Jasrath's case (supra), subject of course to their making good deficient in court fee within a period of four weeks from today. Decree will be drawn accordingly in each appeal.