Allahabad High Court
Noida vs Smt. Charan Kaur on 22 January, 2019
Equivalent citations: AIRONLINE 2019 ALL 253
Bench: Pradeep Kumar Singh Baghel, Pankaj Bhatia
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR RESERVED ON 03.1.2019 DELIVERED ON 22.1.2019 Court No. - 21 Review Application No. 370984 of 2014 IN Case :- FIRST APPEAL No. - 459 of 1995 Appellant :- Noida Respondent :- Smt. Charan Kaur Counsel for Appellant :- A.K.Misra,Ajai Mishra,Amit Manohar,Anil Kr. Yadav,Ashwani Kumar Misra,U.S.Awasthi Counsel for Respondent :- N.Lal,M.D. Singh,Madan Mohan Hon'ble Pradeep Kumar Singh Baghel,J.
Hon'ble Pankaj Bhatia,J.
(Delivered by Hon'ble Pankaj Bhatia,J.) Heard Sri Amit Manohar Sahai, learned counsel for the appellant and Sri Akhilesh Kalra & Sri Madan Mohan, learned counsel appearing for the respondents/review applicants on review application.
The respondent no. 1, in First Appeal No. 459 of 1995, has filed the review application seeking review of the judgement dated 13.10.2014, passed by this Court in First Appeal No. 459 of 1995.
The applicant has briefly stated the facts which have laid filing of the present review application which are as under:
The State Government issued a Notification under Section 4(1) of the Land Acquisition Act, 1894 on 15.3.1998 proposing to acquire 463.959 acres of land situated at Village Makanpur, Pargana Loni, Tehsil Dadri, District Ghaziabad. The said Notification was followed by a Notification under Section 6(1) of the Land Acquisition Act on 09.7.1988. The Special Land Acquisition Officer passed an award in respect of the said acquisition on 01.2.1991 awarding a compensation calculated at the rate of Rs. 72/- per square yard. The said award of the Special Land Acquisition Officer was challenged by means of a reference under Section 18 of the Land Acquisition Act, wherein the Reference Court vide its order dated 03.3.1993 enhanced the compensation awarded at the rate of Rs. 72/- per square yard to Rs. 106/- per square yard along with other statutory benefits.
The order of the Reference Court was challenged in the First Appeal No. 459 of 1995, which was decided along with 48 other first appeals by a common judgement dated 30.10.2014 set aside the judgement dated 24.4.1993 and remanded the matter back to the Reference Court for deciding a reference afresh in the light of the observations made in the judgement. The said order dated 30.10.2014 is sought to be reviewed by means of the present review application.
Sri Akhilesh Kalra, learned counsel, assisted by Sri Madan Mohan, learned Advocate for the respondents has argued that the review is being sought on the ground that the applicant came to know that prior to the decision dated 30.10.2014, First Appeal No. 744 of 2007 (Jagdish Chandra vs. NOIDA) was decided by judgement and order dated 14.12.2007 wherein the High Court had enhanced the compensation of the areas which were inferior to the land in question and an award was made at the rate of Rs. 297/- per square yard. It is argued that the said judgement was not within the knowledge of the applicant and, thus, could not be placed at the time of hearing and consequently the said judgement dated 14.12.2007 escaped the attention of this Court while delivering the judgement dated 30.10.2014.
It has been further argued that the First Appeal No. 737 of 1995 pertaining to the same area and the question of compensation arising from the same reference order was decided by this Court on 13.11.2015 wherein the matter was remanded back to the Reference Court for fresh disposal, mainly on the reasoning that the award of the Reference Court was not in accordance with law.
The said judgement dated 13.11.2015 rendered in First Appeal No. 737 of 1995 was challenged before the Hon'ble Supreme Court by SLP(C) No. 25237-48 of 2015. The said SLP's were heard as Civil Appeal Nos. 1506-17 of 2016 (Pradeep Kumar & others vs. State of U.P. and others) and the Hon'ble Supreme Court vide its order dated 16.2.2016 reported in (2016) 6 SCC 308 had set aside the order dated 13.11.2015 and remanded the matter back for decision afresh in accordance with law. After remand, this Court vide its judgement dated 21.4.2016 decided the matter in light of the directions issued by the Supreme Court, it has been argued that while hearing the matter which led to passing of the order dated 24.4.2016, the respondents, Noida Authority had contended that the matter should be remanded back to the Reference Court, however, the said contention was repelled and ultimately the judgement dated 21.4.2016 was passed. It has been argued that vide judgement dated 21.4.2016, this Court had awarded compensation for a similarly situated land at the rate of Rs. 297/- per square yard for the same village. It has also been brought to the knowledge that the order dated 21.4.2016 was challenged before the Hon'ble Supreme Court, however, the same was dismissed by the Hon'ble Supreme Court and, thus, it has been argued that the judgement dated 21.4.2016 attained the finality. It has been further argued that the Supreme Court while hearing the Civil Appeal No. 10429-30 of 2017 (Narendra & others vs. State of U.P. & others, 2017 (9) SCC 426 had considered the judgement of this Court in Pradeep Kumar case and had upheld the findings recorded in the case of Pradeep Kumar.
It was thus urged that the quantum of compensation having attained finality for a particular area should be awarded to all the tenure holders in the same award even if they have not filed an application under Section 18 of the Land Acquisition Act.
In the background of the submissions made above, Sri Kalra has urged that the order dated 30.10.2014 should be reviewed and the compensation should be awarded at the rate of Rs. 297/- per square yard as has been done by Hon'ble Supreme Court which amount had attained the finality.
On the other hand, Sri Amit Manohar Sahai, learned counsel for the respondent NOIDA Authority has urged that the present application deserves to be dismissed as it does not fall within the four corners of scope of review as contained in Order XLVII Rule 1 Civil Procedure Code read with section 114 CPC, it has been argued that this Court is a first Appellate Court and is bound by the procedure established and thus the application for review not falling within the four corners in Section 114 Code of Civil Procedure or Order XLVII Rule 1 order 47 Rule 1 CPC is liable to be dismissed.
Sri Sahai, however, has been very fair to the Court in admitting that the NOIDA Authority does not dispute that the compensation should be awarded at the rate of Rs. 297/- per square yard as has been done in the case of other areas which were acquired under the same award, however, he also states that the matter should be remanded back to the Reference Court for payment of compensation at the rate of Rs. 297/- per square yard. Thus, the sum and substance of the argument of Sri Sahai is that although there is no scope for argument with regard to quantum of compensation to be paid, however, the matter should be remitted back for decision by the Reference Court.
Sri Kalra, learned Advocate, on being confronted with the objection raised by Sri Sahai that the review application deserves to be dismissed, as it does not fall within the four corners of this scope of review as contained in Section 114 CPC read with Order 47 Rule 1 has argued that Order XLVII Rule 1 provides as under:
Application for review of judgement -(1) Any person considering himself aggrieved-
(a) by a decree or order from which an appeal is allowed, but from no appeal has been preferred,
(b) by a decree or order from which no appeal is allowed, or
(c) by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgement to the Court which passed the decree or made the order.
Thus, on plain reading of Order XLVII Rule 1, it is clear that a judgement can be reviewed by a person, who is aggrieved by a decision and who from the discovery new and important matter or evidence which after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the decree was passed or order made suggests that a review would lie when any important matter has escaped the attention of the Court.
In view of the submissions made by learned counsel at the bar, this Court has to decide two issues, firstly, being whether an application for review would lie in view of the objections raised by the NOIDA authority and secondly whether the Court is empowered to grant compensation at the rate of Rs. 297/- per square yard to the review applicants.
This Court is of the firm opinion that Order XLVII Rule 1 permits the review of any judgement when it is brought to the knowledge of the Court that any new and important matter could not be brought to the knowledge of the Court when the judgements sought to be reviewed was delivered despite exercise of due diligence or beyond the knowledge of the persons seeking a review. There is no dispute that while delivering the judgement dated 30.10.2014, the Court was not apprised of the judgement dated 14.12.2007 passed in First Appeal No. 74 of 2007 (Jagdish Chand vs. NOIDA (the judgement delivered prior in point of time). Thus, the application for review is clearly maintainable as it would fall within the scope of "new and important matter". There is yet another angle to look at the matter, being whether it would be appropriate for this Court to remand the matter for decision by Reference Court or to award the compensation in the present review application, the first course being suggested to be an appropriate course by Sri Sahai and the second recourse being a pragmatic approach, more so in view of the submissions of Sri Sahai that the quantum of compensation at the rate of Rs. 297/- per square yard is correct and appropriate compensation. The Hon'ble Supreme Court in the case of Narendra and others vs. State of Uttar Pradesh and others, 2017 (9) SCC 426 while dealing with the provisions of Section 28-A of the Land Acquisition Act recorded as under:
"The Matter can be looked into from another angle as well, viz., in the light of the spirit contained in Section 28A of the Act. This provision reads as under:
"(1) Wherein an award under this Part, the Court allows to the applicant any amount of compensation in excess of the amount awarded by the Collector under Section II, the persons interested in all the other land covered by the same notification under Section 4, sub-section (1) and who are also aggrieved by the award of the Collector may, notwithstanding that they had not made an application to the Collector under Section 18, by written application to the Collector within three months from the date of the award of the court require that the amount of compensation payable to them may be re-determined on the basis of the amount of compensation awarded by the court......"
It transpires from the bare reading of the aforesaid provision that even in the absence of exemplars and other evidence, higher compensation can be allowed for others whose land was acquired under the same Notification.
The purpose and objective behind the aforesaid provision is salutary in nature. It is kept in mind that those land owners who are agriculturist in most of the cases, and whose land is acquired for public purpose should get fair compensation. Once a particular rate of compensation is judicially determined, which becomes a fair compensation, benefit thereof is to be given even to those who could not approach the court. It is with this aim the aforesaid provision is incorporated by the Legislature. Once we keep the aforesaid purpose in mind, the mere fact that the compensation which was claimed by some of the villagers was at lesser rate than the compensation which is ultimately determined to be fair compensation, should not be a ground to deny such persons appropriate and fair compensation on the ground that they claimed compensation at a lesser rate. In such cases, strict rule of pleadings are not be made applicable and rendering substantial justice to the parties has to be the paramount consideration. It is to be kept in mind that in the matter of compulsory acquisition of lands by the Government, the villagers whose land gets acquired are not willing parties. It was not their voluntary act to sell of their land. They were compelled to give the land to the State for public purpose. For this purpose, the consideration which is to be paid to them is also not of their choice. On the contrary, as per the scheme of the Act, the rate at which compensation should be paid to the persons divested of their land is determined by the Land Acquisition Collector. Scheme further provides that his determination is subject to judicial scrutiny in the form of reference to the District Judge and appeal to the High Court etc. In order to ensure that the land owners are given proper compensation, the Act provides for ''fair compensation'. Once such a fair compensation is determined judicially, all land owners whose land was taken away by the same Notification should become the beneficiary thereof. Not only it is an aspect of good governance, failing to do so would also amount to discrimination by giving different treatment to the persons though identically situated. On technical grounds, like the one adopted by the High Court in the impugned judgment, this fair treatment cannot be denied to them.
No doubt the judicial system that prevails is based on adversarial form of adjudication. At the same time, recognising the demerits and limitations of adversarial litigation, elements of social context adjudication are brought into the decision making process, particularly, when it comes to administering justice to the marginalised section of the society.
History demonstrates that various forms of conflict resolution have been institutionalized from time to time. Presently, in almost all civil societies, disputes are resolved through courts, though the judicial system may be different in different jurisdictions. Traditionally, our justice delivery system is adversarial in nature. Of late, capabilities and method of this adversarial justice system are questioned and a feeling of disillusionment and frustration is witnessed among the people. After all, what is the purpose of having a judicial mechanism - it is to advance justice. Warren Burger once said:
"The obligation of the legal profession is... to serve as healers of human conflict...(we) should provide mechanisms that can produce an acceptable result in shortest possible time, with the least possible expense and with a minimum of stress on the participants. That is what justice is all about."
Prof. (Dr.) N.R. Madhava Menon explains the meaning and contour of social justice adjudication as the application of equality jurisprudence evolved by the Parliament and the Supreme Court in myriad situations presented before courts where unequal parties are pitted in adversarial proceedings and where courts are called upon to dispense equal justice. Apart from the socio-economic inequalities accentuating the disabilities of the poor in an unequal fight, the adversarial process itself operates to the disadvantage of the weaker party. In such a situation, the Court has to be not only sensitive to the inequalities of parties involved but also positively inclined to the weaker party if the imbalance were not to result in miscarriage of justice. The Courts, in such situations, generally invoke the principle of fairness and equality which are essential for dispensing justice. Purposive interpretation is given to subserve the ends of justice particularly when the cases of vulnerable groups are decided. The Court has to keep in mind the ''problem solving approach' by adopting therapeutic approaches to the maximum extent the law permits rather than ''just deciding' cases, thereby bridging the gap between law and life, between law and justice. The notion of access to justice is to be taken in a broader sense. The objective is to render justice to the needy and that means fair solutions to the conflict thereby providing real access to ''justice'.
Justice is a core value of any judicial system. It is the ultimate aim in the decision making process. In post-traditional liberal democratic theories of justice, the background assumption is that all humans have equal value and should, therefore, be treated as equal, as well as by equal laws. This can be described as ''Reflective Equilibrium'. The method of Reflective Equilibrium was first introduced by Nelson Goodman in ''Fact, Fiction and Forecast' (1955). However, it is John Rawls who elaborated this method of Reflective Equilibrium by introducing the concept of ''Justice as Fairness'. While on the one hand, we have the doctrine of ''justice as fairness', as propounded by John Rawls and elaborated by various jurists thereafter in the field of law and political philosophy, we also have the notion of ''Distributive Justice' propounded by Hume which aims at achieving a society producing maximum happiness or net satisfaction. When we combine Rawls's notion of ''Justice as Fairness' with the notions of ''Distributive Justice', to which Noble Laureate Prof. Amartya Sen has also subscribed, we get jurisprudential basis for achieving just results for doing justice to the weaker section of the society.
From the human rights perspective, persons belonging to the weaker sections are disadvantaged people who are unable to acquire and use their rights because of poverty, social or other constraints. They are not in a position to approach the courts even when their rights are violated; they are victimized or deprived of their legitimate due. Here lies the importance of access to justice for socially and economically disadvantaged people. When such people are denied the basic right of survival and access to justice, it further aggravates their poverty. Therefore, even in order to eliminate poverty, access to justice to the poor sections of the society becomes imperative. In the instant case, it is the poverty which compelled the appellants to restrict the claim to Rs.115/- per sq. yard, as they were not in a position to pay the court fee on a higher amount."
The Hon'ble Supreme Court while clarifying the provisions of law also took note of the judgement of this Court in the case of Pradeep Kumar vs. State of U.P., 2016 (6) SCC 308 which is recorded as under:
"This Court in Pardeep Kumar vs. State of U.P. which pertains to subsequent acquisition proceeding in the same village Makanpur, but falling under NOIDA, had on 16th February, 2016 set aside the order passed by the High Court of Judicature at Allahabad and remanded the matter back to the High Court for reconsideration in view of the judgments passed by the coordinate benches of the same High Court in Kashi Ram's case as well as other cases. The High Court, after the remand vide its judgment dated 11th April, 2016 in Pardeep Kumar and Others vs. State of U.P. & Anr. awarded the same enhanced compensation at the rate of Rs. 297/- per sq. yard even in the same case also. The High Court while awarding the compensation at the same rate held :
"27. Therefore, one of the questions which needs to be examined by us is, can the appellants be denied the same rate of compensation only because the filed by them before the reference court did not disclose the rate which they seek now in terms of the judgment of the High Court in the case of Ghaziabad Development Authority (supra). Kanshi Ram case.
xxx xxx xxx
29. It is settled law that the compensation under the Act, 1894 had to be fair and just. Fairness requires that all those similarly situated are treated similarly. Technicalities qua rate as per exemplars filed by poor farmers, who are illiterate, has to be given only such importance as may not defeat their right of fair and just compensation qua compulsory acquisition of land holdings.
30. The determination of acquisition at the rate of Rs.297/- per square yard in the case of Ghaziabad Development Authority (supra) Kashi Ram case has therefore, to be taken as the fair rate determined for the land situated in the village Makanpur with regard to the notification issued on 12 th September, 1986 as well as under Notification dated 15th March, 1988."
The High Court, in the process, also took aid of Section 28 of the Act. Thus, even those villagers whose land was acquired subsequently, are given compensation at the rate of Rs.297/- per square yards. Depriving this rate to the appellants herein would be nothing but travesty of justice.
Simply because the appellants had paid court fee on the claim at the rate of Rs.115/- square yards could not be the reason to deny the compensation at a higher rate. This could be taken care of by directing the appellants to pay the difference in court fee after calculating the same at the rate of Rs.297/- per square yard.
In fine, the judgment of the High Court is set aside and these appeals are allowed holding that appellants are also entitled to compensation at the rate of Rs.297/- per square yards. The difference in compensation along with other statutory benefits under the Act shall be calculated and paid to the appellants within a period of three months from today. It is also directed that the appellants shall make good in deficiency of court fee before the High Court. Appellants shall also be entitled to costs of these appeals."
Thus, we are of the firm view that no useful purpose would be served in relegating the review applicants to the Reference Court in view of law laid down by the Hon'ble Supreme Court in the case of Narendra Kumar and others vs. State of U.P. And Others and, thus, the contention of Sri Sahai is accordingly rejected.
In view of the fact that the preliminary contention of Sri Sahai is rejected, the Court is of the view that the review application filed by the applicant seeking the review of judgement dated 30.10.2014 deserves to be allowed. Accordingly, the judgement dated 30.10.2014 is set aside. The respondent authorities are directed to pay compensation to the review applicants at the rate of Rs. 297/- per square yard in pursuance of their land being acquired in terms of Notification issued under Section 6(1) of the Land Acquisition Act published on 9.7.1988. Thus, accordingly the order of the Reference Court dated 03.03.1993 is hereby set aside. The Review Application No. 370984 of 2014 in First Appeal No. 459 of 1995 is allowed to the extent that the compensation awarded is to be determined at the rate of Rs. 297/- per square yard for the areas of the land acquired in respect of the applicants. The difference of the amount along with other statutory benefits should be paid to the review applicants by the NOIDA within reasonable time and in case not exceeding three months from today. It is further clarified that any deficiency of court fees detected shall be recovered in accordance with law. The review application is thus allowed in terms of the judgement and order above.
No order as to costs.
Order Date :- 22.1.2019 Puspendra