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Madhya Pradesh High Court · body

2012 DIGILAW 477 (MP)

State of M. P. v. Ram Pyare Dubey

2012-05-02

K.K.TRIVEDI

body2012
Judgment This revision is directed against the order dated 19-11-2009 passed in Execution Case No. 51-A/1991 by the III Additional District Judge, Sagar, whereby the petitioners/judgment debtors have been directed to pay the amount of compensation to the respondent for the land acquired. 2. Brief facts giving rise to filing of this revision are that the petitioner-State initiated an action for acquisition of the land measuring 0.21 acre, out of the land area of 1.38 acres, of Khasra No. 220/1 of village Dulchipur, Tahsil Banda, District Sagar, belonging to the respondent under the provisions of Land Acquisition Act, 1894 (hereinafter referred to as 'Act'). The purpose of acquiring the land, as notified in the notification was construction of a dam. It was found that as a whole the land sought to be acquired was not needed and some part of the land was returned. After passing of the award on 24-3-1969, the compensation was assessed and the amount was deposited in the Treasury, payable to the respondent. It was alleged that some lease was got executed and on the basis of such a lease, demands were made. The persons in the locality started making complaints with respect to such acquisition of land and payment of compensation and when the said complaints reached to the Collector, exercising suo motu power of revision, he cancelled the said lease granted in favour of the respondent on 13-1-1987. Such an order was not called in question anywhere but a demand was made by the respondent by filing a civil suit being Civil Suit No. 31-A/1991 as indigent person and the said suit was dismissed on 29-9-1993. The mutation in respect of the respondent was cancelled. Such an order was challenged up to the Commissioner unsuccessfully. The order of Commissioner was challenged before the Board of Revenue, which stood partly allowed granting Bhumiswami rights to the respondent/plaintiff vide order dated 3-5-2001 over the two acres of land. The said order was the subject-matter of challenge in W. P. No. 577/2002, which stood dismissed vide order dated 14-10-2008. It is contended that against the judgment and decree passed by the Civil Court, a first appeal was preferred before this Court by the respondent and the same was partly allowed. The said order was the subject-matter of challenge in W. P. No. 577/2002, which stood dismissed vide order dated 14-10-2008. It is contended that against the judgment and decree passed by the Civil Court, a first appeal was preferred before this Court by the respondent and the same was partly allowed. In execution of the said judgment and decree, objection with respect to the claim of amount by the respondent was raised but the same has been dismissed, therefore, this revision is required to be filed. 3. It is contended by the learned Government Advocate that if the judgment and decree passed by this Court in the first appeal is looked into, it would be abundantly clear that only a part of the claim of the respondent was accepted by this Court. The judgment and decree of the Court below was set aside with respect to the Land Survey No. 220/1. The respondent was entitled to the compensation for the said land only. The said amount has already been deposited in the Treasury, which the respondent has not accepted, therefore, the Executing Court was not right in holding that the respondent was entitled to the interest and total amount of Rs. 38,85,034/-. Such a huge amount was not to be paid to the respondent. Thus, it is contended that the order impugned is bad in law and is liable to be set aside. 4. Refuting such submissions of learned Government Advocate, learned Counsel for the respondent has contended that the dam was to be constructed in the year 1964. Emergent provisions of the Act were exercised while acquiring the land of the respondent. Notification under section 6 of the Act was issued and a meagre amount of compensation was paid. The dispute was raised with respect to the quantum of compensation, area which was sought to be acquired, but instead of deciding the same, illegal proceedings were initiated against the respondent by cancelling the lease obtained by him. All this has resulted in long series of litigation before the Revenue Court, ultimately before this Court and when the relief was granted by the Board of Revenue to the respondent, such an order was also called in question before this Court in W.P. No. 577/2002, which ultimately was decided on 14-10-2008, affirming the order of the Board of Revenue. All this has resulted in long series of litigation before the Revenue Court, ultimately before this Court and when the relief was granted by the Board of Revenue to the respondent, such an order was also called in question before this Court in W.P. No. 577/2002, which ultimately was decided on 14-10-2008, affirming the order of the Board of Revenue. It was categorically held by this Court that in the civil suit when such a claim was made by the respondent, a written statement was filed by the State but in the said written statement, there was no averment that any lease was obtained by the respondent fraudulently or in a fake manner. Such objection raised by the State was found to be incorrect and invalid by this Court. Even when the suit was dismissed, the first appeal was required to be filed by the respondent being F.A. No. 73/1994, which was ultimately decided by this Court on 14-10-2008. That being so, it is contended that if the amount was not paid expeditiously, the respondent was entitled to not only the rightful compensation but solatium and the interest on the said amount. All these facts have been considered by the Executing Court while passing the order impugned and as such just and proper order of the Executing Court need not be interfered with, it is submitted that such a baseless claim of the petitioners-State is required to be ignored. The revision is liable to be dismissed. 5. Heard learned Counsel for the parties at length and perused the record. 6. Undisputedly the claim was made by the petitioners-State that the entire land was not belonging to the respondent nor there was any construction made on the said land. The award was passed without taking into consideration such fact on 28-3-1969. Admittedly the procedure was started while issuing the notification under the Act way back in the year 1963. The entire procedure of acquisition was to be completed within a period of two years as is prescribed under the Acquisition Act. The emergent provisions were required to be exercised indicating the emergency, urgent need of the land sought to be acquired, otherwise the provisions of hearing of objections were not to be curtailed. The settled law is that in case the proceedings of acquisition are not completed within a period of two years, the same stand abated. The emergent provisions were required to be exercised indicating the emergency, urgent need of the land sought to be acquired, otherwise the provisions of hearing of objections were not to be curtailed. The settled law is that in case the proceedings of acquisition are not completed within a period of two years, the same stand abated. From the date of publication of the notification if it is seen that the proceedings were completed within the period of two years or not, the date of passing of the award would be relevant. Undisputedly the award was passed on 28th March, 1969 and, therefore, from the notification so issued in the year 1963, subsequent notification issued on 14-2-1964, it would be clear that the proceedings of acquisition were not completed within a period of two years as is prescribed under the Act. On this count alone, the land of the respondent was required to be released. However, the fact remains that the land was used for the purposes of construction of a dam. If the land is submerged, the respondent was required to be compensated. For the said purposes, the proceedings were rightly done. Ultimately, this Court has also held that the respondent is entitled to get the compensation of the land of Survey No. 220/1. To that extent, the appeal filed by the respondent is allowed. If this land is already acquired or has gone in submergence, the respondent is required to be paid the compensation of the said land. If there was any construction made as is claimed by the respondent, the compensation for the same was also required to be paid but the said fact has not been found proved. It is the case of the respondent that though the compensation for the land has been assessed, the assessment of compensation for construction over the said land has not been done. The same was required to be done only if such a construction is established by evidence. None is found in this respect. 7. Learned Government Advocate has contended that the law is well settled in this respect and in various decisions rendered by the Apex Court where it has been said that such an order could not have been passed by the Executing Court. Placing reliance in the case of Dr. None is found in this respect. 7. Learned Government Advocate has contended that the law is well settled in this respect and in various decisions rendered by the Apex Court where it has been said that such an order could not have been passed by the Executing Court. Placing reliance in the case of Dr. Shant Lal Narula vs. The Commissioner of Income Tax, Punjab, Jammu and Kashmir, Himachal Pradesh and Patiala, AIR 1964 SC 1878 , learned Government Advocate has contended that such an interest was not payable to the respondent as has been ordered by the Executing Court. It is contended that as per the law laid-down by the Apex Court if the legislature has expressly used the word 'interest' with its well known connotation, the simple and plain meaning of the same is required to be taken. Instead of doing this, the Executing Court has proceeded further in holding that the respondent is entitled to much higher rate of interest as is prescribed. Further placing reliance in the case of Joginder Singh and others vs. State of Punjab and another; AIR 1985 SC 382 , it is contended that the date of determination of interest is must and it should not be exhorbitantly fixed from the date the proceedings were initiated. It is contended that in fact the date of interest would be the date when the respondent becomes entitled to the claim as was ordered by this Court in the first appeal and not prior to that, it is contended that since the suit of the respondent was dismissed by the trial Court, there was no occasion to fix the interest nor to grant the same to the respondent. Only when the first Appellate Court decided the claim of the respondent then only the clock of interest started and from that day the interest would be payable to the respondent. Further placing reliance in the case of Md. Alam vs. State of West Bengal, AIR 1991 Calcutta 42, it is contended by learned Government Advocate that the rate of enhanced solatium and the interest was not to be granted to the respondent as the same applies only to the awards made between the date of introduction of the amendment bill in the Parliament and date of passing of the Amendment Act. It is contended that enhanced rate of interest on unpaid amount of compensation is available to the respondent only where the possession of the land sought to be acquired is taken before the date of introduction of the bill. Further placing reliance in the case of Ratan Kumar Tandon and others vs. State of U. P., (1997) 2 SCC 161 , it is contended that the burden of proof of market value of the trees, land and the structure was only on the respondent, which he completely failed to establish and, therefore, such a heavy compensation was not to be granted to the respondent by the Executing Court. Lastly, learned Counsel for the petitioners has put his reliance heavily in the case of State of Kerala vs. Mariyamma and others, AIR 2005 NOC 380 (Kerala), it is contended by the learned Government Advocate that no claimant is entitled to claim compound interest or further interest on interest. Once accrued under section 28 of the Act or on solatium, if decree does not provide for interest on solatium. It is contended that the decree passed by this Court do not contemplate such prescription and, therefore, the respondent is not entitled to such heavy amount. 8. The submissions of learned Counsel for the petitioners are considered in view of the law laid-down by the Apex Court. True it is that if a decree is specifically drawn, the Executing Court cannot travel beyond the decree. True it is also that if the decree does not prescribe for grant of compensation with compound interest, the same cannot be allowed. Various facts as have been pointed out indicate that there were circumstances in which the respondent was required to run from one Court to another. It is not explained as to how Collector sit tight over the matter for good 20 years till he exercised his suo motu revision power and set aside lease granted in favour of the respondent. It is to be seen that in this peculiar case the matter was agitated before the Revenue Courts and ultimately the Board of Revenue granted some relief to the respondent. That order too was not accepted by the State Government and a writ petition was filed before this Court unsuccessfully. It is to be seen that in this peculiar case the matter was agitated before the Revenue Courts and ultimately the Board of Revenue granted some relief to the respondent. That order too was not accepted by the State Government and a writ petition was filed before this Court unsuccessfully. The civil suit filed by the respondent was dismissed only on the strength of such orders passed by the revenue authorities in exercise of suo motu revision power. This point was also examined by this Court only in first appeal and partially the relief was granted to the respondent. That being so, specially in the circumstances where the acquisition proceedings itself were not completed within the statutory period of two years, the cases relied by learned Government Advocate would not be attracted at all. Even if the principle laid-down is taken into consideration, it will be clear that there was gross negligence on the part of the petitioners in settling the claim of the respondent. This Court itself has not granted any specific compensation but has declared that the respondent would be entitled to compensation for the land held in his favour. The decree passed by this Court contains no specific amount, therefore, it has to be calculated and ascertained by the Executing Court. In view of this, the law laid-down by the Apex Court would not be applicable in case of petitioner. 9. The important aspect which is required to be examined is whether there was a justified calculation done by the Executing Court with respect to the amount of award to be paid to the respondent or not. Certain facts are required to be kept in mind, such as initiation of proceedings of acquisition of land, deprivation of the right of the respondent to use the said land and the manner in which the calculation of award itself was done by the Land Acquisition Officer. The Apex Court in the case of Radhy Shyam (dead) Through LRs and others vs. State of U. P. and others, (2011) 5 SCC 553 , has in fact culled out the principles, which are required to be followed in case of exercise of emergent powers for acquisition of the land of a citizen by the sovereign State, curtailing his right o property as enshrined under Article 300-A of the Constitution of India. The principles, which have been specifically laid-down by the Apex Court, are thus : "(i) Eminent domain is a right inherent in every sovereign to take and appropriate property belonging to citizens for public use. To put it differently, the sovereign is entitled to reassert its dominion over any portion of the soil of the State including private property without its owner's consent provided that such assertion is on account of public exigency and for public good - Dwarkadas Shrinivas vs. Sholapur Spg. Wvg. Co, Ltd., Charanjit Lal Chowdhury vs. Union of India and Jilubhai Nanbhai vs. State of Gujarat. (ii) The legislations which provide compulsory acquisition of private property by the State fall in the category of expropriatory legislation and such legislation must be construed strictly - DLF Qutab Enclave Complex Educational Charitable Trust vs. State of Haryana, State of Maharashtra vs. B. E. Billimoria and Dev Sharon vs. State of U. P. (iii) Though, in exercise of the power of eminent domain, the Government can acquire the private property for public purpose, it must be remembered that compulsory taking of one's property is a serious matter. If the property belongs to economically disadvantaged segment of the society or people suffering from other handicaps, then the Court is not only entitled but is duty-bound to scrutinise the action/decision of the State with greater vigilance, care and circumspection keeping in view the fact that the landowner is likely to become landless and deprived of the only source of his livelihood and/or shelter. (iv) The property of a citizen cannot be acquired by the State and/or its agencies/instrumentalities without complying with the mandate of sections 4, 5-A and 6 of the Act. A public purpose, however, laudable it may be does not entitle the State to invoke the urgency provisions because the same have the effect of depriving the owner of his right to property without being heard. Only in a case of real urgency, the State can invoke the urgency provisions and dispense with the requirement of hearing the landowner or other interested persons. (v) Section 17(1) read with section 17(4) confers extraordinary power upon the State to acquire private property without complying with the mandate of section 5-A. These provisions can be invoked only when the purpose of acquisition cannot brook the delay of even a few weeks or months. (v) Section 17(1) read with section 17(4) confers extraordinary power upon the State to acquire private property without complying with the mandate of section 5-A. These provisions can be invoked only when the purpose of acquisition cannot brook the delay of even a few weeks or months. Therefore, before excluding the application of section 5-A, the authority concerned must be fully satisfied that time of few weeks or months likely to be taken in conducting inquiry under section 5-A will, in all probability, frustrate the public purpose for which land is proposed to be acquired. (vi) The satisfaction of the Government on the issue of urgency is subjective but is a condition precedent to the exercise of power under section 17(1) and the same can be challenged on the ground that the purpose for which the private property is sought to be acquired is not a public purpose at all or that the exercise of power is vitiated due to mala fides or that the authorities concerned did not apply their mind to the relevant factors and the records. (vii) The exercise of power by the Government under section 17(1) does not necessarily result in exclusion of section 5-A of the Act in terms of which any person interested in land can file objection and is entitled to be heard in support of his objection. The use of word "may" in subsection (4) of section 17 makes it clear that it merely enables the Government to direct that the provisions of section 5-A would not apply to the cases covered under sub-section (1) or (2) of section 17. In other words, invoking of section 17(4) is not a necessary concomitant of the exercise of power under section 17(1). (viii) The acquisition of land for residential, commercial, industrial or institutional purposes can be treated as an acquisition for public purposes within the meaning of section 4 but that, by itself, does not justify the exercise of power by the Government under sections 17(1) and/or 17(4). The Court can take judicial notice of the fact that planning, execution and implementation of the schemes relating to development of residential, commercial, industrial or institutional areas usually take few years. Therefore, the private property cannot be acquired for such purpose by invoking the urgency provision contained in section 17(1). The Court can take judicial notice of the fact that planning, execution and implementation of the schemes relating to development of residential, commercial, industrial or institutional areas usually take few years. Therefore, the private property cannot be acquired for such purpose by invoking the urgency provision contained in section 17(1). In any case, exclusion of the rule of audi alteram partem embodied in sections 5-A(1) and (2) is not at all warranted in such matters. (ix) If land is acquired for the benefit of private persons, the Court should view the invoking of sections 17(1) and/or 17(4) with suspicion and carefully scrutinise the relevant record before adjudicating upon the legality of such acquisition." 10. If the land of the respondent was needed by the State Government for the purposes of construction of dam, not only expeditious actions were required to be taken, amount was to be paid to the respondent and then only further proceedings were required to be done. From the facts as have come on record, it appears that the calculation of the compensation was done, the award was passed, keeping in view the price of the land in the year when the acquisition proceedings were initiated. The objection raised by the respondent was not considered properly. Not only this, the authorities of the petitioners hatched up the scheme of denying the compensation to the respondent by cancelling the lease granted in his favour, which gave initiation for legal battle in the revenue Courts, which ultimately ended before this Court. The petitioners were aware of the fact that the land of the respondent has already been utilized by the petitioners or it has gone in submergence and thus the respondent was denied the right to cultivate the said land, use the same for any other purposes to enjoy his right to property under Article 300-A of the Constitution of India. They were duty bound to compensate the respondent in adequate manner. All this was taken note of by the Executing Court and since no calculation of the amount of compensation was done by this Court while granting a decree in favour of the respondent, the said amount was calculated by the Court below and after adding the solatium, interest as accrued on the said amount, the total calculation was done. All this was taken note of by the Executing Court and since no calculation of the amount of compensation was done by this Court while granting a decree in favour of the respondent, the said amount was calculated by the Court below and after adding the solatium, interest as accrued on the said amount, the total calculation was done. If this part of the order is examined, it is clear that no illegality was committed by the Court below nor the Court below had travelled beyond the scope of decree granted by this Court. In fact the theory of merger would be applicable and the decree granted by the lower Court had merged in the final decree granted by this Court. 11. In such circumstances, if the amount was calculated and a direction was given for payment of the same, in the considered opinion of this Court, no illegality was committed by the Executing Court. The claim as set forth in the revision is, therefore, totally misconceived. By the subsequent order the Executing Court has rejected the application of the petitioners for grant of time to obtain an interim order from this Court, though the case was so fixed that the petitioners may obtain an interim order from this Court. Thus, the order dated 19-11-2009 passed by the Court below cannot be said to be an illegal order beyond the jurisdiction of the Court below. 12. The revision filed against such order fails and is hereby dismissed. However, in the given circumstances of the case, there shall be no order as to cost. Revision dismissed.