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2000 DIGILAW 167 (HP)

VIDYA WATI v. STATE OF H. P.

2000-07-07

M.R.VERMA, R.L.KHURANA

body2000
JUDGMENT R.L. Khurana, J:- The State of Himachal Pradesh vide notification issued under Section 4 of the Land Acquisition Act, 1894 (for short: the Act) dated 6.1.1970 expressed an intention to acquire 169 Bighas 3 Biswas of land in village Kasumpti for a public purpose, namely, "Construction of residential colony for Government Servants". After holding the requisite enquiry under Section 5(2) of the Act, vide notification issued under sections 6 and 7 of the Act on 25.9.1970, the State Government decided to acquire only 91 bighas 6 biswas plus 792 Sq. feet of the land. Such land was ultimately acquired and Award dated 11.11.1971 was made by the Collector Land Acquisition in respect thereof whereby compensation at the market value of Rs. 2590/- per bigha wa awarded, alongwith solatium at the rate of 15%. 2. The acquired land included land measuring 54 Bighas 6 biswas belonged to Sarvshri Roshan Lai Kuthiala, Bipen Lai Kuthiala, Jishan Lai Kuthiala, Joginder Lai Kuthiala, Jatinder Lai Kuthiala. Smt. Harbans Kumari and Smt. Durgi Devi. Each of the above persosn had the following shares: (i) Joginder Lal..................1/18 (ii) Jatinder Lal..................1/18 (iii)Roshan Lal.................1/6 (iv)Bipan Lal..................1/6 (v) Jishan Lal..................5/24 (vi)Jaswant Lal..................5/24 (vii)Smt. Harbans Kumari..................1/18 (viii) Smt. Durgi Devi..................1/12 3. Another 34 biswas 5 biswas of land, out of the acquired land, belonged to one Sher Singh son of Amar Singh. 4. Feeling aggrieved by and being dis-satisfied with the award of the Collector Land Acquisition, the above named land owners preferred petitions under Section 18 of the Act for reference of the dispute as to the market value of the acquired land to the District Judge, Shimla. 5. The reference petition of Sarvshri Roshan Lal and others was registered as Case No. 57-S/4 of 1973 and that of Shri Sher Singh came to be registered as case No. 45-S/4 of 1973 on the files of the learned District Judge, Shimla. 6. During the pendency of reference case No. 57-S-4 of 1973, Roshan Lal and others v. State of H.P., petitioner-claimant No. 2, Bipin Lal, therein died. The application made by his legal representatives under Order 22 rule 4, Code of Civil Procedure, for being brought on record was dismissed by the learned District Judge on 13.7.1982. As a result, the reference petition qua the deceased Bipin Lal stood abated. 7. The application made by his legal representatives under Order 22 rule 4, Code of Civil Procedure, for being brought on record was dismissed by the learned District Judge on 13.7.1982. As a result, the reference petition qua the deceased Bipin Lal stood abated. 7. Insofar as the remaining seven claimants-respondents are concerned, their reference petition was allowed by the learned District Judge on 30.7.1982. The market value of their acquired land was assessed at Rs.8, 000/- per bigha. They were held entitled compensation at the abovesaid rate alongwith solatium at the rate of 15%. 8. The award dated 30.7.1982 of the learned District Judge, has been assailed by the appellants State of Himachal Pradesh and another before this Court by way of an appeal being R.F.A. No. 1404 of 1982. Cross-objections, being CO. No. 6/83 were preferred by the claimants-respondents. 9. The legal heirs of the deceased claimant petitioner Bipin Lai assailed the order dated 13.7.1982 of the learned District Judge dismissing their application made under Order 22 rule 4, Code of Civil Procedure, by way of an appeal being R.F.A. No. 1401 of 1982. Such appeal was allowed by a learned Single Judge of this Court on 27.11.1986 in the following terms: "By the consent of the parties, the Court allows the appeal with no order as to costs in the following terms.- (1) The order dated July 13, 1982 passed by the District Judge in Land Reference Case No. 57-S/4 of 1973 dismissing the application filed by the appellants on April 27, 1982 to implead them as the legal representatives of deceased Bipin Lai (one of the original claimants) is quashed and set aside and the District Court is directed to hear and decide afresh the said application in accordance with law after restoring the case to file insofar as it concerns the. Appellants. Appellants. (2)In case the application,, above; mentioned, is decided once again against the appellants, no other or further order will be required to be passed by the District Court so as to affect, in any manner, the impunged award dated July 30,1982; in case, however, the application is granted, the direction in the impugned award disentitling the appellants to receive their share in the enhanced compensation amount will be treated as having vacated and the appellants will be awarded their share in the enhanced amount of compensation in the same manner and to the same extent as it is allowed to the other claimants. (3) In the event of the share of the enhanced compensation being ordered to be paid to the appellants upon the grant of the application for bringing them on record as the legal representatives of the deceased Bipin Lai, the District Court will award solatium and interest on the said amount in accordance with law. (4) Any party aggrieved by the decision of the District Court will be entitled to seek further remedy in accordance with law. Order accordingly. The parties to appear before the District Court on December 6, 1986." 10. The legal representatives, namely, Smt. Maya Devi (widow), Sar-vashri Pradeep Kuthiala and Anup Kuthaiala (sons), Smt. Rup Sood, Smt. Kiran Devi and Smt. Minu Kuthiala (daughters) of the deceased Bipin Lai were brought on record by the learned District Judge vide order dated 18.5.1987 and vide award dated 14.7.1987, following the award dated 30.7.1982, they were held entitled to compensation at the same rate of Rs.8000/- per bigha. They were further allowed solatium at the rate of 30% arid interest on the enhanced amount at the rate of 9% from the date of possession for a period of one year and thereafter at the rate of 15% per annum till the date of payment of the enhanced amount. 11. This award dated 14.7.1987 was assailed by the appellants State of H.P. and another by way of an appeal being R.F.A. No. 93 of 1988. In such appeal the claimants-respondents also preferred cross-objection being CO. No. 146 of 1988. 12. The reference petition of claimant Sher Singh, being Land Reference Case No. 45-S/4 of 1973 was decided by the learned Additional District Judge, Shimla, vide award dated 24.11.1977. In such appeal the claimants-respondents also preferred cross-objection being CO. No. 146 of 1988. 12. The reference petition of claimant Sher Singh, being Land Reference Case No. 45-S/4 of 1973 was decided by the learned Additional District Judge, Shimla, vide award dated 24.11.1977. The market value of his acquired land was assessed at Rs.3000/ and he was held entitled to compensation at the said rate. Feeling aggrieved, he assailed the award by way of an appeal before this Court, being R.F.A. No. 172 of 1978. 13. The appeal, being R.F.A. No. 172 of 1978 was decided by a Division Bench of this Court on 9/22.10.1991. The Division Bench upheld the market value of the acquired land at Rs. 3000/- per bigha as determined and assessed by the learned Additional District Judge. The claimants-appellants preferred an appeal before the Honble Supreme Court being Civil Appeal No. 5931 of 1998, against the judgment of the Division Bench of this Court passed in R.F.A. No. 172 of 1978. 14. R.F.A. Nos. 1404 of 1982 and 93 of 1988 alongwith Cross-Objection Nos. 6 of 1983 and 146 of 1988 were heard and disposed of together on 11.7.1996 by another Division Bench of this Court. Following the decision dated 9/22.10.1991 in R.F.A. No. 172 of 1978 of the earlier Division Bench, the awards dated 30.7.1982 and 14.7.1987 of the learned District Judge, Shimla were set aside and the market value of the acquired land was assessed at Rs. 3000/- per bigha. The appeals preferred by the State of H.P. were accordingly allowed. The claimants-respondents feeling aggrieved preferred appeals before the Honble Supreme Court being Civil Appeal Nos. 5932 and 5933 of 1998. 15. All the three appeals, that is, Civil Appeal Nos. 5931, 5932 and 5933 of 1998 were allowed by the Honble Supreme Court on 24.11.1998. After setting aside the two judgments dated 9/22.10.1991 and 11.7.1996 of this Court, the cases were remanded to this Court for decision afresh in accordance with law. The order dated 24.11.1998 of the Honble Supreme Court reads:- "Leave granted. Heard learned counsel on both sides. Both the impugned judgments are set aside since the High Court in the earlier judgment has not considered the question of compensation awarded in the second matter, though in the subsequent judgment compensation awarded in the other matter has been considered. The order dated 24.11.1998 of the Honble Supreme Court reads:- "Leave granted. Heard learned counsel on both sides. Both the impugned judgments are set aside since the High Court in the earlier judgment has not considered the question of compensation awarded in the second matter, though in the subsequent judgment compensation awarded in the other matter has been considered. The matters are remanded to the High Court to consider both the matters together on the basis of evidence, which is on the record before the High Court and in accordance with law. The appeals are disposed of accordingly." 16. On remand all the three appeals, being R.F.A. Nos. 172 of 1978,1404 of 1982 and 93 of 1988 alongwith Cross-Objection Nos. 6 of 1983 and 146 of 1988 were restored for hearing. 17. In R.F.A. NO. 93 of 1988 respondent-claimant No. 13 Jishan Lal Kuthiala is dead as per the report dated 28.9.1999 of the process serving agency on the summons issued to him after the remand of the case. The factum of death of respondent No. 13 was brought to the notice of the appellants State of H.P. and another on 7.10.1999. No steps were taken by the appellants to bring on record the legal representatives of the deceased respondent No. 13 within the stipulated period of limitation. Resultantly, the appeal being R.F.A. No. 93 of 1988 alongwith the Cross Objection No. 146 of 1988 stood abated and were dismissed accoridnlgy on 16.3.2000. 18. Presently, R.F.A. Nos. 172 of 1978 and 1404 of 1982 alongiwth Cross Objection No. 6 of 1983 are pending disposal, which are being disposed of together by this Single judgement, since common questions are involved therein. R.F.A. No. 1404 of 1982. 19. The land, subject matter of the present appeal, measures 54 bighas 6 biswas comprisingofKharsNos.277,279,285,498/294, 301/1,280/1,296,276,278,281,282,283,284i 286,287,288, 289,290,293,295,304,305,306 and 291, as detailed in the statement prepared by the Collecotr, Land Acquisition, under Section 19 fo the Act, while forward-ing the refenrce to the Court. The claimants-respondents herein have 5/6 share in such land. 20. The same land measuring 54 Biswas 6 Biswas was the subject matter of the appeal being R.F.A. No. 92 cf 1988. The claimants- respondents therein had 1/6 share in such land. 21. The market value of this land has been assessed by the learned District Judge vide awards dated 30.7.1982 and 14.7.1987 at Rs. 8000/- per bigha. 22. 20. The same land measuring 54 Biswas 6 Biswas was the subject matter of the appeal being R.F.A. No. 92 cf 1988. The claimants- respondents therein had 1/6 share in such land. 21. The market value of this land has been assessed by the learned District Judge vide awards dated 30.7.1982 and 14.7.1987 at Rs. 8000/- per bigha. 22. As stated above, the appeal being R.F.A. No. 92 of 1988 arising out of Award dated 14.7.1987 of the learned District Judge stands dismissed as having abated. The effect of such dismissal of the appeal is that the award dated 14.7.1987 of the learned Distirct Judge determing and fixing the market value of the land meausring 54 Bighas 6 Biswas (detailed above) has become final as between the parties. 23. The learned counsel for the appellants by placing reliance on the ratio of Lahore High Court in Obedur Rahman v. Darbari Lai, AIR 1927 Lahore 1, has contended that the dismissal of appeal being R.F.A. No 93 of 1988 as having abaed would have no effect on the present case. In the case before the Lahore High Court five appeals involving common issue were before the High Court, out of which three had abated. The High Court had held that the abatement of three appeals would have no effect on the remaining two appelas since the matter was never finally heard and decided. 24. An opposite view has been taken by the Oudh High Court in Ahmad Ali Khan v. Hinga Lai, AIR 1947 Oudh 74, where it was held that where the appeal was struck off as having abated, the decision would operate as res judicata. 25. The Supreme Court in Sheodan Singh v. Daryao Kunwar, AIR 1966 SC 1332, while approving the view of the Oudh High Court, has held that the view of the Lahore High Court is incorrect. The Supreme Court went on to observe that if die view taken by the Lahore High Court is taken as correct, the result would be that there may be inconsistent decisions on the same issue with respect to the question involved in the case. The Supreme Court went on to observe that if die view taken by the Lahore High Court is taken as correct, the result would be that there may be inconsistent decisions on the same issue with respect to the question involved in the case. The Supreme Court, therefore, held that where the result of the dismissal or abatement of one appeal is to confirm the decision of the trial Court on the merits, such dismissal must amount to the appeal being heard and finally decided and wouid operate as res-judicata. 26. With the dismissal of R.F.A. No. 93 of 1988 as having abated, the award of the learned District Judge fixing the market value of the land, subject matter therein, at Rs. 8000/- per bigha, stands affirmed. The same very land is also subject matter of the present appeal. In the event the present appeal is allowed, it would lead to inconsisgent decision since the market value of the same land would be different qua different co-sharers. This is not permissible under the law. 27. Therefore, as a result of dismissal of R.F.A. No. 93 of 1988, as having abated, the award of the District Judge stands affirmed whereby market vlaue of the acquired land has been assessed and fixed at Rs. 8000/- per. bigha The same shall operate as res judicata for the pourposes of present appeal and the appelalnts are estopped from re-agitating the question of market vlaue of the acquired land. The present appeal, therefore, merits dismissal and it is decided accordinlgy. Cross-Objection 6 of 1983. 28. The Cross-Objection have been preferred by the claimants- respondent, since the learned District Judge failed to award interest on the enhanced compensation from the date of taking over of possession of the land acquired. 29. It may be noted that the provisions of the Act as in force on the date of acquisiation of the land as well as on the date of the making of the award by the learned District Judge, came to be amended by Amendment Act No. 68 of 1984 during the pendency of the present appeal. 30. In view of such amended provisons, the claimants-respondents are entitled to compulsory acquisition charges at the rate of 30% of the market value of the land. 30. In view of such amended provisons, the claimants-respondents are entitled to compulsory acquisition charges at the rate of 30% of the market value of the land. They are also entitled to interest on the enhanced amount of compensation as under:- (i) at the rate of nine percent per annum from the date of taking of possession of the acquired land till the expiry of one year therefrom; and (ii) at the rate of fifteen percent per annum from the date of expiry of one year from the taking of possession of the acquired land till the date of payment/deposit of the enhanced amount. The cross-objections are, therefore, allowed. R.F.A. No. 172 of 1978. 31. The land involved in the presnet case meausres 34 Biswas 5 biswas comprisng of Khasra Nos. 239/3, 240, 241, 242, 499/294, 297, 237, 501/302, 505/307, 238, 298, 299, 300, 301, 296 and 292. This land was acquired alongwith the land subject matter of R.F.A. No. 1404 of 1982. 32. The learned District Judge vide his impunged award dated 24.11.1977 has assessed the market value of the land at Rs.3000/- per bigha. 33. The learned counsel for the appellants - claimants has contended that in view of the fact that the market value of the acquired land in R.F.A. No. 1404 of 1982 has been assessed and fixed at Rs. 8000/- per bigha; the appellants-claimants in this case are also entitled to compensation at the same rate. 34. RW1 Shri N.C. Khosla, a witness of the respondents has categorically admitted that the land in this case is of the same category and conditions as in neighbouring land, that is, the land subject matter of R.F.A. No. 1404 of 1982. The Collector, Land Acquisition also vide his award had awarded the same rate in respect of the land in the present case and that subject matter of R.F.A. No. 1404 of 1982. Thus, as per the respondents own showing the two lands are of same type and category having the same potentialities. Therefore, the claimants-appellants are entitled to compensation for their acquired land at the same and simialr rate of Rs. 8000/- per bigha, which is assessed as the market value of the acquired land. 35. In addition to the above, the appellants-claimants shall be entitled to compulsory acquisition charges at the rate of 30% of the market value of the acquired land. 8000/- per bigha, which is assessed as the market value of the acquired land. 35. In addition to the above, the appellants-claimants shall be entitled to compulsory acquisition charges at the rate of 30% of the market value of the acquired land. , They are also entitled to interest on the enhacned amount of compensation as under:- (i) at the rate of nine percent per annum from the date of taking of possession of the acquired land till the expiry of one year therefrom; and (ii) at the rate of fifteen per cent per annum from the date of expiry of one year from the taking of possession of the acquired land till the date of payemnt/deposit of the enhanced amount. The appeal is, therefore, allowed. Final Order. 36. Resultantly, while the appeal being R.F.A. No. 1404 of 1982 is dismissed, the Cross Objection No. 6 of 1983 and the appeal being R.F.A. No. 172 of 1978 are allowed, as indicated above. Parties are left to bear their own costs.