Himachal Pradesh High Court
Land Acquisition Collector & Ors vs Smt. Kanta Devi on 23 July, 2018
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
RFA No. 16 of 2013 alongwith RFA Nos. 17, 18, 19, 20, 21, 22, 23, 24, 25 and 26 of 2013 .
Reserved on: 18.07.2018 Date of decision: 23.07.2018.
RFA No. 16 of 2013
Land Acquisition Collector & Ors. ...Appellants
Versus
Smt. Kanta Devi ...Respondent
RFA No. 17 of 2013
Land Acquisition Collector & Anr. ...Appellants
Versus
Smt. Hansa Devi ...Respondent
RFA No. 18 of 2013
Land Acquisition Collector & Anr. ...Appellants
Versus
Hari Singh & Ors. ...Respondents
RFA No. 19 of 2013
Land Acquisition Collector & Anr. ...Appellants
Versus
Durga Dass & Anr. ...Respondents
RFA No. 20 of 2013
Land Acquisition Collector & Anr. ...Appellants
Versus
Goverdhan & Ors. ...Respondents
RFA No. 21 of 2013
Land Acquisition Collector & Anr. ...Appellants
Versus
Manohar Lal ...Respondent
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2
RFA No. 22 of 2013
Land Acquisition Collector & Anr. ...Appellants
.
Versus
Jhabe Ram ...Respondent
RFA No. 23 of 2013
Land Acquisition Collector & Ors. ...Appellants
Versus
Dile Ram & Ors. ...Respondents
RFA No. 24 of 2013
Land Acquisition Collector & Anr. ...Appellants
Versus
Naresh Kumar & Ors.
r ...Respondents
RFA No. 25 of 2013
Land Acquisition Collector & Anr. ...Appellants
Versus
Jiwa Nand & Ors. ...Respondents
RFA No. 26 of 2013
Land Acquisition Collector & Anr. ...Appellants
Versus
Udham Singh & Ors. ...Respondents
For the Appellant(s) : Mr. Ashok Sharma, Advocate General, with
Mr. Vinod Thakur, Addl. A.G. and Mr.
Bhupinder Thakur, Dy. A.G.
For the Respondents : Mr. G. R. Palsra, Advocate, for the
respondents in RFA Nos. 16 to 24 and
26 of 2013 and for respondents No. 1
to 3, 5(a) to 5(g) & 6 in RFA No. 25 of
2013.
LRs of respondent No. 4 in RFA No. 25
of 2013 are ex parte.
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3
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. Whether approved for reporting?1 .
Tarlok Singh Chauhan, Judge Since common questions of law and facts arise for consideration in these appeals, they were taken up together for hearing and are being disposed of by way of a common judgment.
2. Briefly stated facts giving rise to the present appeals are that the appellants - State of H.P. issued notification PBW(B)(A)-(7)1- 5/2006, dated 24.07.2006, for the acquisition of land situated in village Sainj for the construction of Sainj link road. Notification under Section 4 of Land Acquisition Act (for short 'Act') was published in H.P. Rajpatra, Dainik Bhaskar and Dainik Jagran on 06.05.2006. Wide publicity was made in the locality on 02.05.2006. Notification under Section 6 was published in H.P. Rajpatra on 02.09.2006, Amar Ujala on 09.08.2006 and in Dainik Tribune on 10.08.2006. Wide publicity was made in the locality on 04.10.2006. Learned Acquisition Collector found that true area of the acquired land was 3-13-8 bigha. He determined the market value as under:-
Barani Abal @ Rs. 1,46,667/- per bigha
Bagicha Barari faldar @ Rs.2,40,000/- -do-
Gair Mumkin @ Rs. 26,667/- -do-
He awarded the following compensation:
1. Value of land Rs.5,01,067/-
1
Whether reporters of Local Papers may be allowed to see the Judgment ?Yes ::: Downloaded on - 24/07/2018 23:01:50 :::HCHP 4
2. Compulsory acquisition charges Rs. 1,50,320/-
u/s 23(2) @ 30%
3. 12% additional amount u/s 23(1-A) Rs.34,430/-
.
from the date of notification u/s 4 i.e. 06.05.2006 to 30.11.2006
4. Interest @ 9% w.e.f. 06.05.2006 Rs. 25,822/-
to 30.11.2006 Total= Rs. 7,11,639/-
(Rupees Seven lacs eleven thousand six hundred & thirty nine only)
3. Being aggrieved by the award passed by the Collector, the respondents filed reference petitions assailing quantum of compensation, and the same were allowed by the learned Reference Court and the respondents were held entitled to enhanced compensation @ Rs.24,762/- per biswa irrespective of the quality and classification of land.
4. Aggrieved by the award passed by the learned Reference Court, the State of H.P. has filed the instant appeals on the ground that the award passed by the learned Reference Court is highly excessive and contrary to the value of the land as worked out in the sale deeds Ext. R1 to Ext. R5. It is further urged that the learned Reference Court could not have determined the value of the land solely on the basis of the sale deeds Ext.PW2/A and Ext.PW3/A, which were on the higher side and, in fact, related to smaller pieces of land.
I have heard learned counsel for the parties and have gone through the records of the case.
::: Downloaded on - 24/07/2018 23:01:50 :::HCHP 55. At the outset, it would be necessary to set out certain broad parameters and principles that are required to be borne in mind while .
determining the compensation under the Land Acquisition Act.
6. The first and foremost is the price paid in a bona fide transaction of sale by a willing seller to a willing buyer subject to transaction being for the land adjacent to the land, proximity to the date and possessing similar advantages. Of course, the other well-
known methods of valuation like opinion of experts and yield method. In absence of any evidence of a similar transaction, it is permissible to take into account the transaction of nearest land around the date of notification under section 4 of the Act by making suitable alliance.
There can be no fixed criteria as what would be the suitable addition or subtraction from the value of the land relied upon.
7. In Chimanlal Hargovinddas v. Land Acquisition Officer, (1998) 3 SCC 751, the Hon'ble Supreme Court summed up the principle as follows:
[4] The following factors must be etched on the mental screen :
(1) A reference under Section 18 of the Land Acquisition Act is not an appeal against the award and the Court cannot take into account the material relied upon by the Land Acquisition Officer in his Award unless the same material is produced and proved before the Court.
(2) So also the Award of the Land Acquisition Officer is not to be treated as a judgment of the trial Court open or exposed to challenge before the court hearing the Reference. It is merely an offer made by the Land Acquisition Officer and the material utilised by him for making his valuation cannot be utilised by ::: Downloaded on - 24/07/2018 23:01:50 :::HCHP 6 the Court unless produced and proved before it. It is not the function of the court to sit in appeal against the Award, approve or disapprove its reasoning, or correct its error or .
affirm, modify or reverse the conclusion reached by the Land Acquisition Officer, as if it were an appellate Court.
(3) The Court has to treat the reference as an original proceeding before it and determine the market value afresh on the basis of the material produced before it.
(4) The claimant is in the position of a plaintiff who has to show that the price offered for his land in the award is inadequate on the basis of the materials produced in the Court. Of course the materials placed and proved by the other side can also be taken into account for this purpose.
(5) The market value of land under acquisition has to be determined as on the crucial date of publication of the notification under S. 4 of the Land Acquisition Act (dates of Notifications under Ss. 6 and 9 are irrelevant).
(6) The determination has to be made standing on the date line of valuation (date of publication of notification under S. 4) as if the valuer is a hypothetical purchaser willing to purchase land from the open market and is prepared to pay a reasonable price as on that day. It has also to be assumed that the vendor is willing to sell the land at a reasonable price.
(7) In doing so by the instances method, the Court has to correlate the market value reflected in the most comparable instance which provides the index of market value.
(8) Only genuine instances have to be taken into account. (Sometimes instances are rigged up in anticipation of Acquisition of land.) (9) Even post-notification instances can be taken into account (1) if they are very proximate, (2) genuine and (3) the acquisition itself has not motivated the purchaser to pay a ::: Downloaded on - 24/07/2018 23:01:50 :::HCHP 7 higher price on account of the resultant improvement in development prospects.
(10) The most comparable instances out of the genuine .
instances have to be identified on the following considerations :
(i) proximity from time angle
(ii) proximity from situation angle.
(11) Having identified the instances which provide the index of market value the price reflected therein may be taken as the norm and the market value of the land under acquisition may be deduced by making suitable adjustments for the plus and minus factors vis-a-vis land under acquisition by placing the two in juxtaposition.
(12) A balance-sheet of plus and minus factors may be drawn for this purpose and the relevant factors may be evaluated in terms of price variation as a prudent purchaser would do.
(13) The market value of the land under acquisition has thereafter to be deduced by loading the price reflected in the instance taken as norm for plus factors and unloading it for minus factors.
(14) The exercise indicated in clauses (11) to (13) has to be undertaken in a common sense manner as a prudent man of the world of business would do. We may illustrate some such illustrative (not exhaustive) factors:-
Plus factors Minus factors
1. Smallness of size. 1. largeness of area.
2. Proximity to a road. 2. situation in the interior at a distance from the road. 3. frontage on a road. 3. narrow strip of land with very small frontage compared to depth.
4. nearness to developed area. 4. lower level requiring the depressed portion to be filled up.
5. regular shape. 5. remoteness from developed locality.
6. level vis-a-vis land under acquisition. 6. some special disadvantageous factor which would deter a purchaser.::: Downloaded on - 24/07/2018 23:01:50 :::HCHP 8
7. special value for an owner of an adjoining property to whom it may have some very special advantage.
(15) The evaluation of these factors of course depends on the .
facts of each case. There cannot be any hard and fast or rigid rule. Common sense is the best and most reliable guide. For instance, take the factor regarding the size. A building plot of land say 500 to 1000 sq. yds cannot be compared with a large tract or block of land of say 10000 eq. yds. or more. Firstly while a smaller plot is within the reach of many, a large block of land will have to be developed by preparing a lay out, carving out roads, leaving open space, plotting out smaller plots, waiting for purchasers (meanwhile the invested money will be blocked up) and the hazards of an entrepreneur. The factor can be discounted by making a deduction byway of an allowance at an appropriate rate ranging approx. between 20% to 50% to account for land required to be set apart for carving out lands and plotting out small plots. The discounting will to some extent also depend on whether it is a rural area or urban area, whether building activity is picking up, and whether waiting period during which the capital of the entrepreneur would be locked up, will be longer or shorter and the attendant hazards.
(16) Every case must be dealt with on its own fact pattern bearing in mind all these factors as a prudent purchaser of land in which position the Judge must place himself.
(17) These are general guidelines to be applied with understanding informed with common sense.
8. Bearing in mind the aforesaid exposition of law, this Court shall not determine the merits of these appeals.
9. The details of sale exemplars as relied upon by both the parties are as under:-
Sale Deed Dated Land Sold Price Price per biswa Ex.PW-2/A 16.01.2006 0-0-14 bigha Rs. 25,000/- Rs. 35,714/-::: Downloaded on - 24/07/2018 23:01:50 :::HCHP 9
Ex.PW-3/A 16.01.2006 0-0-7 bigha Rs. 13,000/- Rs.37,143/- Ex.PW-4/A 02.06.2006 0-1-16 bigha Rs. 48,000/- Rs. 26,667/- Ex.P1 23.03.2007 0-0-16 bigha Rs. 1,35,000/- Rs. 1,68,750/-
.
Ex.R1 14.11.2005 0-0-7 bigha Rs. 5,000/- Rs. 14,286/-
Ex.R2 09.05.2005 0-0-17 bigha Rs. 3,000/- Rs. 3,529/- Ex.R3 04.07.2005 0-1-1 bigha Rs. 15,000/- Rs. 14,286/- Ex.R4 14.11.2005 0-1-7 bigha Rs. 15,000/- Rs. 11,111/-
Ex.R5 04.07.2005 0-2-0 bigha Rs. 15,000/- Rs.7,500/-
10. As per settled law, the market value of the land is required to be assessed on the date of the notification issued under Section 4 of the Act, which in the instant case is 06.05.2006. The most proximate sales made in that point of time are undoubtedly Ext. PW2/A and Ext.PW3/A that have been relied upon and form the basis of the award made by the learned Reference Court. However, the sale deeds Ext.R1 to Ext. R5 cannot also be totally ignored as these have been executed within one year of the aforesaid notification. As regards Ext.P1 and Ext.P4/A, it would not be safe to rely upon these sale exemplars as these admittedly have been entered into after the notification (supra).
(Ref: Kolkata Metropolitan Development Authority vs. Gobinda Chandra Makal & another, (2011) 9 SCC 207).
11. It is vehemently argued by learned Advocate General that the sale exemplars as relied upon by the learned Reference Court relates to very small parcels of land and, therefore, cannot form the basis for determining compensation.
12. Even though there is substance in the contention of the Advocate General, but finding that the learned Reference Court has ::: Downloaded on - 24/07/2018 23:01:50 :::HCHP 10 already taken this fact into consideration and had deducted 1/3rd out of the compensation payable to the claimants. Further, no exception to the .
deduction of 1/3rd towards development charges can be taken by either of the parties in light of the latest decision of the Hon'ble Supreme Court in Maya Devi vs. State of Haryana (2018) 2 SCC 474, wherein after taking into consideration the entire law on the subject, the Hon'ble Supreme Court held that 1/3rd deduction should normally be made towards development charges. It shall be apposite to refer to the relevant observations which read thus:
[6] So far as the first contention is concerned, the sale deed relied upon by the appellants/claimants dated 27.12.1988 is post notification. Sub-section (1) of Section 23 of the Act provides that the compensation to be awarded shall be determined by the reference court, based upon the market value of the acquired land at the date of the publication of the notification under Section 4(1). In Kolkata Metropolitan Development Authority v. Gobinda Chandra Makal and Anr., 2011 9 SCC 207, it was held that the relevant date for determining the compensation is the date of publication of then otification under Section 4(1) of the Act in the Gazette. In para (34), it was held as under:-
"34. One of the principles in regard to determination of the market value under Section 23(1) is that the rise in market value after the publication of the notification under Section 4(1) of the Act should not be taken into account for the purpose of determination of market value. If the deeming definition of "publication of the notification" in the amended Section 4(1) is imported as the meaning of the said words in the first clause of Section 23(1), it will lead to anomalous results. The owners of the lands which are the subject- matter of the notification and neighbouring lands will come to know about the proposed acquisition, on the date of publication in the Gazette or in the newspapers. If the giving ::: Downloaded on - 24/07/2018 23:01:50 :::HCHP 11 of public notice of the substance of the notification is delayed by two or three months, there may be several sale transactions in regard to nearby lands in that period, .
showing a spurt or hike in value in view of the development contemplated on account of the acquisition itself."
Applying the ratio of the above decision, we are of the view that the post notification instances cannot be taken into consideration for determining the compensation of the acquired land.
[7] So far as the contention regarding deduction at the rate of 67.5% for development charges is concerned, the exemplar relied upon by the High Court dated 26.05.1983 was for a small extent of land of 9 marlas which was sold for Rs.25,500/-. The transaction relates to the period which is about 56 months prior to the notification under Section 4 of the Act and the High Court adopted the rate of escalation at 10% and calculated the value at Rs.6,64,887/-. Considering the fact that the acquired land required for development and that the property covered under the exemplar was for a small extent of 9 marlas of land, the High Court applied maximum deduction at 67.5% and calculated the compensation to be paid at Rs.2,19,413/- per acre.
[8] In Haryana State Agricultural Market Board and Anr. v. Krishan Kumar and Ors., 2011 15 SCC 297, this Court has held that "if the value of small developed plots should be the basis, appropriate deductions will have to be made therefrom towards the area to be used for roads, drains, and common facilities like park, open space, etc. Thereafter, further deduction will have to be made towards the cost of development, that is, the cost of leveling the land, cost of laying roads and drains, and the cost of drawing electrical, water and sewer lines."
[9] Observing that the development charges for development of particular plot of land could range from 20% to 75%, in Lal Chand v. Union of India and Another, 2009 15 SCC769, in paras (13), (14) and (20), this Court held as under:
::: Downloaded on - 24/07/2018 23:01:50 :::HCHP 12"13. The percentage of 'deduction for development' to be made to arrive at the market value of large tracts of undeveloped agricultural land (with potential for .
development), with reference to the sale price of small developed plots, varies between 20% to 75% of the price of such developed plots, the percentage depending upon the nature of development of the layout in which the exemplar plots are situated.
14. The 'deduction for development' consists of two components. The first is with reference to the area required to be utilised for developmental works and the second is the cost of the development works. . .....
20. Therefore the deduction for the 'development factor' to be made with reference to the price of a small plot in a developed layout, to arrive at the cost of undeveloped land, will be for more than the deduction with reference to the price of a small plot in an unauthorised private layout or an industrial layout. It is also well known that the development cost incurred by statutory agencies is much higher than the cost incurred by private developers, having regard to higher overheads and expenditure."
The same principle was reiterated in Andhra Pradesh Housing Board v. K.Manohar Reddy and Ors., 2010 12 SCC 707.
[10] In a catena of judgments, this Court has taken the view to apply one-third deduction towards the development charges. After referring to various case laws on the question of deduction for development, in Major General Kapil Mehra and Ors. v. Union of India and Anr., 2015 2 SCC 262, this Court held as under:
"35. Reiterating the rule of one-third deduction towards development, in Sabhia Mohammed Yusuf Abdul Hamid Mulla v. Land Acquisition Officer, 2012 7 SCC 595, this Court in para 19 held as under: (SCC pp. 606-07) ::: Downloaded on - 24/07/2018 23:01:50 :::HCHP 13 "19. In fixing the market value of the acquired land, which is undeveloped or underdeveloped, the courts have generally approved deduction of 1/3rd of the market value towards .
development cost except when no development is required to be made for implementation of the public purpose for which land is acquired. In Kasturi v. State of Haryana, 2003 1 SCC 354 the Court held: (SCC pp. 359-60, para 7) "7. It is well settled that in respect of agricultural land or undeveloped land which has potential value for housing or commercial purposes, normally 1/3rd amount of compensation has to be deducted out of the amount of compensation payable on the acquired land subject to certain variations depending on its nature, location, extent of expenditure involved for development and the area required for road and other civic amenities to develop the land so as to make the plots for residential or commercial purposes. A land may be plain or uneven, the soil of the land may be soft or hard bearing on the foundation for the purpose of making construction; maybe the land is situated in the midst of a developed area all around but that land may have a hillock or may be low-lying or may be having deep ditches. So the amount of expenses that may be incurredin developing the area also varies.....................There may be various factual factors which may have to be taken into consideration while applying the cut in payment of compensation towards developmental charges, maybe in some cases it is more than 1/3rd and in some cases less than 1/3rd. It must be remembered that there is difference between a developed area and an area having potential value, which is yet to be developed. The fact that an area is developed or adjacent to a developed area will not ipso facto make every land situated in the area also developed to be valued as a building site orplot, particularly when vast tracts are acquired, as in this case, for development purpose.' The rule of 1/3rd deduction was reiterated in Tejumal Bhojwani v. State of U.P., 2003 10 SCC 525, V. Hanumantha ::: Downloaded on - 24/07/2018 23:01:50 :::HCHP 14 Reddy v. Land Acquisition Officer, 2003 12 SCC 642, H.P. Housing Board v. Bharat S. Negi, 2004 2 SCC 184 and Kiran Tandon v. Allahabad Development Authority, 2004 10 SCC .
745."
36. While determining the market value of the acquired land, normally one- third deduction i.e. 33 1/3% towards development charges is allowed. One- third deduction towards development was allowed in Tehsildar (LA) v. A.Mangala Gowri, 1991 4 SCC 218, Gulzara Singh v. State of Punjab, 1993 4 SCC 245, Santosh Kumari v. State of Haryana, 1996 10 SCC 631, Revenue Divl. Officer and LAO v. Sk. Azam Saheb, 2009 4 SCC 395, A.P. Housing Board v. K. Manohar Reddy, 2010 12 SCC 707, Ashrafi v. State of Haryana, 2013 5 SCC 527 and Kashmir Singh v. State of Haryana, 2014 2 SCC
165.
37. Depending on the nature and location of the acquired land, extent of land required to be set apart and expenses involved for development, 30% to 50% deduction towards development was allowed in Haryana State Agricultural Market Board v. Krishan Kumar, 2011 15 SCC 297, Director, Land Acquisition v. Malla Atchinaidu, 2006 12 SCC 87, Mummidi Apparao v. Nagarjuna Fertilizers & Chemicals Ltd., 2009 4 SCC 402 and Lal Chand v. Union of India, 2009 15 SCC 769.
38. In few other cases, deduction of more than 50% was upheld. In the facts and circumstances of the case in Basavva v. Land Acquisition Officer, 1996 9 SCC 640, this Court upheld the deduction of 65%. In Kanta Devi v. State of Haryana, 2008 15 SCC 201, deduction of 60% towards development charges was held to be legal. This Court in Subh Ram v. State of Haryana, 2010 1 SCC 444, held that deduction of 67% amount was not improper. Similarly, in Chandrashekar v. Land Acquisition Officer, 2012 1 SCC 390, deduction of 70% was upheld."
::: Downloaded on - 24/07/2018 23:01:50 :::HCHP 1513. Now as regards the compensation, as observed earlier, the learned Reference Court has only relied upon the sale exemplars .
Ext.PW2/A and Ext.PW3/A, dated 16.01.2006, to assess the compensation @ Rs. 24,762/- per biswa, but then it has not taken into consideration the sale exemplars Ext. R1 to Ext. R5 which have been executed within one year of the issuance of the notification under Section 4 of the Act.
14. Undoubtedly, the sale exemplars Ext.PW2/A and Ext.PW3/A do show a trend in increase of prices of land, but then the other sale exemplars specially Ext.R1 to Ext.R5 cannot be ignored altogether.
15. In case, the sale exemplars Ext. R1 to R5 are minutely analyzed, it would be noticed that in May, 2005 the prices per biswa was Rs. 3529/- as per Ext.R2 and in July it was Rs.7500/- as per Ext. R5 and Rs. 14,286/- as per Ext. R3 whereas in November, 2005 the value of the land rapidly increased and was Rs.11,111/- as per Ext. R4 and Rs.14,286/- as per Ext. R1.
16. Thus, it stands proved on record that there was definitely a trend of increase in prices of land with each successive month but the same even after 1/3rd deduction could not have been valued at Rs.24,762/- per biswa as has been done by the learned Reference Court.
17. Taking into consideration the entirety of the facts and circumstances, more particularly, the sale exemplars as produced on record, this Court would assess the value of the land after 1/3rd deduction should be worked out to Rs.20,000/- per biswa. After all, the ::: Downloaded on - 24/07/2018 23:01:50 :::HCHP 16 Hon'ble Supreme Court in Chimanlal's case (supra) has clearly stated that the Court has to apply some mind of guess work in computing the .
compensation of their respective land, it may not always be possible to grant compensation arithmetically correct with decimal.
18. Even though the claimants can only be held entitled to compensation of Rs.20,000/- per biswa as against Rs.24,762/- as ordered by the learned Reference Court, yet it needs to be borne in mind that even though the notification under Section 4 of the Act was issued on 06.05.2006, but this Court cannot lose sight of the fact, and as admitted by the appellants, that the possession of the land was taken in the year, 1985-86 as is clearly evident from para 6 of the reply to the Reference Petition which reads thus:-
"6.That the contents of para 6 are denied being wrong and incorrect as the possession of land was taken in 1985-86 as per the statement of Sh. Ghanshyam Bhardwaj, Junior Engineer, Gohar Section and no income was being derived by the petitioner from the land acquired as such not entitled for any amount."
19. Thus, it stands proved on record that the respondents have been deprived of the usage, occupation and usufruct of the land more than two decades i.e. from 1986, therefore, in these circumstances, the Court is required to balance the competing interest of the parties.
20. In case, the appellants had not deprived the respondents of usage, occupation and usufruct of the land for more than two decades, the market value of the land on the date of acquisition cannot account for and, in fact, does not account for deprivation of usage of land for more than two decades.
::: Downloaded on - 24/07/2018 23:01:50 :::HCHP 1721. How, therefore, in the given facts and circumstances, the competing interests of the parties are required to be balanced, in such .
circumstances is in fact no longer res integra in view of the judgment of the Hon'ble Supreme Court in Balwan Singh and others versus Land Acquisition Collector and another (2016) 13 SCC 412, wherein after taking into consideration the earlier precedent on the subject, the Hon'ble Supreme Court directed the acquiring authority to award additional interest by way of damages @ 15% per annum from the date when the respondents-claimants were dispossessed till the date of notification under Section 4 of the Act. It shall be apposite to refer to the relevant observations which read thus:-
"1. The short issue arising for consideration in this appeal is whether the appellants are entitled to interest for the period from the date of dispossession to the date of Notification under Section 4(1) of the Land Acquisition Act, 1894 (For short 'the Act'). That issue is no more res integra. In R.L. Jain Vs. DDA (2004) 4 SCC 79 at para 18, this Court has taken the view that the land owner is not entitled to interest under the Act. However, it has been clarified that the land owner will be entitled to get rent or damages for use and occupation for the period the Government retained possession of the property.
2. Noticing the above position, this Court in Madishetti Bala Ramul Vs. Land Acquisition Officer (2007) 9 SCC 650, took the view that it may not be proper to remand the matter to the Collector to determine the amount of compensation to which the appellants therein would be entitled for the period during which they remained out of possession and hence, in the interest of justice, this Court directed that additional interest at the rate of 15% per annum on the amount awarded by the Land Acquisition Collector, shall be paid for the period between the date of dispossession and the date of Notification under Section 4(1) of the Act. 3. The said view was followed by this Court in Tahera Khatoon Vs. Land Acquisition Officer ::: Downloaded on - 24/07/2018 23:01:50 :::HCHP 18 (2014) 13 SCC 613. 4. Following the above view taken by this Court, these appeals are disposed of directing the respondents to award additional interest by way of damages, at the rate of 15% per annum .
for the period between 1.7.1984, the date when the appellants were dispossessed till 2.9.1993, the date of Notification under Section 4(1) of the Act. Needless to say that this compensation will be on the basis of land value fixed by the Reference Court. The amount as above, shall be calculated and deposited before the Reference Court within a period of three months from today."
22. In view of the law expounded in the aforesaid judgment, even though the respondents-claimants can only be held entitled to compensation @ Rs.20,000/- per biswa as against Rs.24,762/- per biswa as awarded by the learned Reference Court, nonetheless they are entitled to an addition interest by way of damages at the rate of 15% per annum on this amount i.e. Rs.20,000/- from 01.01.1986 up to when the respondents-claimants were dispossessed till 06.05.2006, the date of notification under Section 4 of the Act.
23. At this stage, it needs to be clarified that his Court is not oblivious to the fact that no cross-objection has been filed by the respondent-claimants, but then the law laid down by the Hon'ble Supreme Court is binding on this Court as per Article 141 of the Constitution of India and moreover, this Court in exercise of its power under Order 41 Rule 33 can always apply the appropriate multiplier.
24. Order 41 Rule 33 of the Code of Civil Procedure reads as under:-
"33. Power of court of Appeal.- The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or ::: Downloaded on - 24/07/2018 23:01:50 :::HCHP 19 other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised In favour of .
all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection, and may, where there have been decrees in cross suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees: Provided that the Appellate Court shall not make any order under section 35A, in pursuance of any objection on which the court from whose decree the appeal is preferred has omitted or refused to make such order."
25. It cannot be disputed that the object of the aforesaid rule is to empower the Appellate Court to do complete justice between the parties. This rule gives the Court ample power to make an order appropriate to meet the ends of justice. It enables the Appellate Court to pass any decree or order which ought to have been made and to make such further order or decree as the case may be in favour of all or any of the parties even though the appeal is as to part only of the decree; and such party or parties may not have filed an appeal. The necessary condition for exercising the power under the rule is that the parties to the proceedings are before the Court and the question raised properly arises out of the judgments of the lower Court. In that event, the Appellate Court can consider any objection to any part of the order or decree of the Court and set it right. No hard and fast rule can be laid down as to the circumstances under which the power can be exercised and each case therefore must depend upon its own facts. Although, the ::: Downloaded on - 24/07/2018 23:01:50 :::HCHP 20 general principle is that a decree is binding on the parties to it until it is set aside in appropriate proceedings. Ordinarily, the Appellate Court .
must not vary or reverse a decree/order in favour of a party who has not preferred any appeal. But in exceptional cases, the rule enables the Appellate Court to pass such decree or order as sought to have been passed even if such decree or order would be in favour of parties who have not filed any appeal.
26. The scope of the rule has repeatedly came up for consideration before the Hon'ble Supreme Court, but I need only refer to the judgment rendered in Pralhad and others vs. State of Maharashtra and another (2010) 10 SCC 458 wherein it was held:
"18. The provision of Order 41 Rule 33 CPC is clearly an enabling provision, whereby the appellate Court is empowered to pass any decree or make any order which ought to have been passed or made, and to pass, or make such further or other decree or order as the case may require. Therefore, the power is very wide and in this enabling provisions, the crucial words are that the appellate court is empowered to pass any order which ought to have been made as the case may require. The expression "order ought to have been made" would obviously mean an order which justice of the case requires to be made. This is made clear from the expression used in the said Rule by saying "the court may pass such further or other order as the case may require". This expression "case" would mean the justice of the case. Of course, this power cannot be exercised ignoring a legal interdict or a prohibition clamped by law.
19. In fact, the ambit of this provision has come up for consideration in several decisions of this Court. Commenting on this power, Mulla (Civil Procedure Code, 15th Edn., p. 2647) observed that this Rule is modeled on Order 59 Rule 10 (4) of the ::: Downloaded on - 24/07/2018 23:01:50 :::HCHP 21 Supreme Court of Judicature of England, and Mulla further opined that the purpose of this Rule is to do complete justice between the parties.
.
20. In Banarsi vs. Ram Phal (2003) 9 SCC 606, this Court construing the provisions of Order 41 Rule 33 CPC held that this provision confers powers of the widest amplitude on the appellate Court so as to do complete justice between the parties. This Court further held that such power is unfettered by considerations as to what is the subject matter of the appeal or who has filed the appeal or whether the appeal is being dismissed, allowed or disposed of while modifying the judgments appealed against. The learned Judges held that one of the objects in conferring such power is to avoid inconsistency, inequity and inequality in granting reliefs and the overriding consideration is achieving the ends of justice. The learned Judges also held that the power can be exercised subject to three limitations: firstly, this power cannot be exercised to the prejudice of a person who is not a party before the Court; secondly, this power cannot be exercised in favour of a claim which has been given up or lost; and thirdly, the power cannot be exercised when such part of the decree which has been permitted to become final by a party is reversed to the advantage of that party. (See SCC p. 619, para 15 : AIR para 15 at p. 1997). It has also been held by this Court in Samundra Devi vs. Narendra Kaur (2008) 9 SCC 100 SCC (para 21), that this power under Order 41 Rule 33 CPC cannot be exercised ignoring a legal interdict. 22. In view of the aforesaid interpretation given to Order 41 Rule 33 CPC by this Court, we are of the opinion that the High Court denied the relief to the appellants to which they are entitled in view of the Constitution Bench decision in K.S. Paripoornan vs. State of Kerala, (1994) 5 SCC 593.by taking a rather restricted and narrow view of the scope of Order 41 Rule 33 CPC and also on a misconstruction of the ratio in Paripoornan."::: Downloaded on - 24/07/2018 23:01:50 :::HCHP 22
27. However, it needs to be clarified that compensation will now be paid on the basis of the land value fixed by this Court i.e. Rs.20,000/-
.
per biswa. The amount, as above, shall be calculated and deposited before the learned Reference Court within three months from today.
28. Having said so, all the appeals are disposed of in the aforesaid terms, leaving the parties to bear their own costs. Pending application, if any, also stands disposed of.
23 rd
(sanjeev)
July, 2018 r to (Tarlok Singh Chauhan)
Judge
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