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2014 DIGILAW 1289 (PNJ)

Bhoop Singh v. State of Haryana

2014-09-15

RAJESH BINDAL

body2014
JUDGMENT Mr. Rajesh Bindal J.: - This order will dispose of a bunch of appeals bearing RFA Nos. 3110 to 3119, 5430 and 6896 of 2011, as common questions of law and facts are involved. 2. The landowners are in appeal seeking further enhancement of compensation for the acquired land awarded by the learned court below. 3. Briefly, the facts of the case are that vide notification dated 21.8.2003, issued under Section 4 of the Land Acquisition Act, 1894 (for short, ‘the Act’), State of Haryana sought to acquire 5.25 acres of land, situated in the revenue estate of Tehsil and District Rewari, HB No.125 for development and utilisation thereof as Extrent Sewerage of Urban Estate Rewari. The same was followed by notification dated 22.8.2003 issued under Section 6 of the Act. The Land Acquisition Collector (for short, ‘the Collector’), vide award dated 18.8.2005, assessed the market value of the land @ Rs.12,50,000/- per acre. Aggrieved against the award of the Collector, the land owners filed objections which were referred to the learned court below, who keeping in view the material placed on record by the parties, determined the fair value of the acquired land @ Rs.1,650/- per square yard. It is this award which has been impugned in the present appeals by the landowners. 4. Learned counsel for the landowners submitted that the acquired land is situated in municipal limits from the year 1995. It is situated near Sector 4, opposite HUDA bye-pass on Rewari-Delhi road and near Rewari city. Many colonies have been developed near the acquired land. It is surrounded by marriage palaces. Learned counsel further submitted that though for the purpose of assessment of compensation for the acquired land, the learned court below has placed reliance upon a judgment of this court in RFA No. 3353 of 2001—Bhawani Sahai and another v. State of Haryana and others, decided on 5.5.2008 pertaining to acquisition of land abutting the circular road of Rewari town for residential and commercial purposes, where notification under Section 4 of the Act was issued on 15.2.1990, but still while granting increase for the time gap in two acquisitions, neither the period has been correctly taken nor the amount of compensation as has been assessed by this court. The amount has been calculated by taking the compensation as was assessed by the Reference Court. The amount has been calculated by taking the compensation as was assessed by the Reference Court. The compensation assessed by the Reference Court in the aforesaid case was Rs.712/- per square yard, which was increased to Rs.990/- per square yard by this Court. Though appeal against the aforesaid judgment of this Court is pending before Hon’ble the Supreme Court, however, there is no interim stay and the amount of enhanced compensation has already been paid to the landowners therein. 5. Learned counsel further submitted that even the calculation made while assessing the compensation by taking the basic value as Rs.712/- per square yard has also been made wrongly. Even as per the basic rate and the formula applied, the compensation would come out to Rs.1,822/- per square yard and not Rs.1,650/- per square yard granted by the court below. If the basic price is taken as Rs.990/- per square yard and increase for the time gap is granted, the same would come out to Rs.2,534/- per square yard. It was further submitted that the basis and the principle on which the compensation has been assessed by the court below was accepted by the State as such, as no appeal was filed by it and hence, the aforesaid errors are required to be corrected. 6. Another submission made by learned counsel for the landowners is that though the land was acquired for the purpose of Extrent Sewerage of Urban Estate Rewari, as a consequence of which the land owned by some of the landowners has been divided into two parts and despite the fact that the court below appreciated the aforesaid fact, but still did not grant damages on account of severance of land. The prayer is for grant of damages on account of severance to the extent of 50% of the value of the acquired land. 7. On the other hand, learned counsel for the State submitted that the award of the Collector in the case in hand was just and fair. It was not a case for increase by the Reference Court. The sale deeds produced by the State clearly established that compensation of Rs.12,50,000/- per acre, as assessed by the Collector, was more than the value of the land in the area. As is evident from the sale deeds produced by the State, the sale consideration paid therein was ranging from Rs.6,00,000/- to Rs.12,00,000/- per acre. The sale deeds produced by the State clearly established that compensation of Rs.12,50,000/- per acre, as assessed by the Collector, was more than the value of the land in the area. As is evident from the sale deeds produced by the State, the sale consideration paid therein was ranging from Rs.6,00,000/- to Rs.12,00,000/- per acre. Learned counsel further submitted that the principle on the basis of which the compensation has been assessed by the learned court below while granting increase for the time gap of more than 13 years cannot stand in judicial scrutiny as the same is contrary to the principles laid down by Hon’ble the Supreme Court in General Manager, Oil and Natural Gas Corporation Limited v. Rameshbhai Jivanbhai Patel and another, [2008(6) Law Herald (SC) 4035] : (2008) 14 SCC 745 . He further submitted that the land in question was being put to agricultural use at the time of acquisition and even if increase is to be granted, the same could not be at the rate of more than 5% to 6% per annum. 8. As regards non-filing of appeal by the State impugning the award of the learned Reference Court or the principles followed therein for the purpose of assessment of compensation, learned counsel for the State referred to the provisions of Order 41 Rule 33 CPC and judgment of Hon’ble the Supreme Court in Pralhad and others v. State of Maharashtra and another, [2011(2) Law Herald (SC) 1136] : (2010) 10 SCC 458 claiming that even in the absence of any appeal, this court can always pass any order even in favour of the State, the party not in appeal. 9. It was further submitted that though the court below has placed reliance upon the earlier award pertaining to acquisition of land in the area, however, the same has not yet attained finality as the matter is pending before Hon’ble the Supreme Court, hence, it would not be appropriate to grant increase to the landowners on the basis of judgment of this court pertaining to the aforesaid acquisition. 10. 10. Regarding severance of land, learned counsel for the State, while not disputing the fact that land of some of the landowners may have been bifurcated and referring to the judgment of this Court in Amin Lal and others v. State of Haryana and others, [2013(4) Law Herald (P&H) 3124 : 2013(3) Land L.R. 480 (P&H)] : 2014(1) RCR (Civil) 928, submitted that damages on account of severance should not be granted at the rate of more than 20% of the value of the acquired land. 11. Heard learned counsel for the parties and perused the paper book. Claim of landowners for enhancement 12. The land in the case in hand was acquired for the purpose of construction of Extrent Sewerage of Urban Estate Rewari. The total acquired land is 5.25 acres. The same is within municipal limits of Rewari. As per site plan (Ex. PW9/B) on record, there was lot of construction activity in the vicinity of acquired land. It has been so recorded by the learned court below in the impugned award that at the time of hearing, learned counsel for the petitioners (landowners) stated that compensation be assessed only while placing reliance upon its earlier award in LAC No. 192 dated 31.7.1997 pertaining to acquisition of land in the area where notification under Section 4 of the Act was issued on 15.2.1990. The compensation therein was assessed by the Reference Court @ Rs.712/- per square yard. The aforesaid award was subject matter of appeal before this Court in Bhawani Sahai’s case (supra), where the compensation was further increased to Rs.990/- per square yard. There was a time gap of 13-1/2 years in two acquisitions. The court below while assessing the compensation granted increase @ 12% per annum for a period of 13 years. The amount of increase was found to be Rs.1,110/- per square yard, but the court below assessed the compensation @ Rs.1,650/- per square yard. 13. No doubt, there is an error in calculation of the compensation if considered in the light of the principle adopted by the court below. Even the period of increase has also not been taken correctly. If the contention of learned counsel for the landowners is to be accepted, the increase should also have been on Rs.990/- per square yard, as was the compensation assessed by this court in the case relied upon. Even the period of increase has also not been taken correctly. If the contention of learned counsel for the landowners is to be accepted, the increase should also have been on Rs.990/- per square yard, as was the compensation assessed by this court in the case relied upon. However, this court does not find it appropriate to interfere in the appeals filed by the landowners seeking further enhancement of compensation as the principle, which has been applied for grant of increase for a time gap of 13 years, has not been approved by Hon’ble the Supreme Court in General Manager, ONGC Ltd.’s case (supra), wherein it has been opined that increase, if any, is to be granted for the time gap in two acquisitions, the same should normally be not for a period of more than 5 years. Relevant paragraph thereof is extracted below: “15. Normally, recourse is taken to the mode of determining the market value by providing appropriate escalation over the proved market value of nearby lands in previous years (as evidenced by sale transactions or acquisitions), where there is no evidence of any contemporaneous sale transactions or acquisitions of comparable lands in the neighbourhood. The said method is reasonably safe where the relied-on sale transactions/ acquisitions precede the subject acquisition by only a few years, that is, up to four to five years. Beyond that it may be unsafe, even if it relates to a neighbouring land. What may be a reliable standard if the gap is of only a few years, may become unsafe and unreliable standard where the gap is larger. For example, for determining the market value of a land acquired in 1992, adopting the annual increase method with reference to a sale or acquisition in 1970 or 1980 may have many pitfalls. This is because, over the course of years, the ‘rate’ of annual increase may itself undergo drastic change apart from the likelihood of occurrence of varying periods of stagnation in prices or sudden spurts in prices affecting the very standard of increase.” [emphasis supplied] 14. This is because, over the course of years, the ‘rate’ of annual increase may itself undergo drastic change apart from the likelihood of occurrence of varying periods of stagnation in prices or sudden spurts in prices affecting the very standard of increase.” [emphasis supplied] 14. Considering the aforesaid judgment of Hon’ble the Supreme Court and there being no other relevant evidence on record, in my opinion, no case for interference is made out in the appeals filed by the landowners for further enhancement of compensation, as the same would mean putting a stamp on the principle applied by the learned court below for the purpose of assessment of compensation, which is in contravention to the law laid down by Hon’ble the Supreme Court in General Manager, ONGC Ltd.’s case (supra). Plea of State under Order 41 Rule 33 CPC 15. As far as the contention raised by learned counsel for the State, referring to Order 41 Rule 33 CPC regarding interference in the award of the court below for reduction in amount of compensation, is concerned, the same is merely to be noticed and rejected. Section 54 of the Act provides that subject to the provisions of CPC, an appeal shall only lie to the High Court from the award, or from any part of the award, of the Court. Order 41 Rule 22 CPC provides that in case a party fails to file appeal within the time granted, he still has opportunity to file cross objections, in case the other party files appeal. The same have to be filed within one month from the date of service of notice on him or the pleader. Order 41 Rule 33 CPC is the power of the appellate court. The purpose is to balance the equities. The provisions of Order 41 Rule 33 CPC cannot be stretched in favour of a party, who does not wish to file appeal or cross objections against the issues decided against him by the court below. In the case in hand, the court below had assessed the compensation, namely, decided a question of fact on the basis of material on record, to which the State never felt aggrieved of, hence, did not file appeal. The Rule has been incorporated with a view to grant inherent power to the appellate court to do complete justice between the parties. 16. The Rule has been incorporated with a view to grant inherent power to the appellate court to do complete justice between the parties. 16. Scope of Order 41 Rule 33 CPC was considered by Hon’ble the Supreme Court in Nirmala Bala Ghose and another v. Balai Chand Ghose, AIR 1965 SC 1874 , wherein it was observed that aforesaid Rule is primarily intended to confer power upon the appellate court to do justice by granting relief to a party who has not appealed, when refusing to do so, would result in making inconsistent, contradictory or unworkable orders. Relevant paragraph thereof is extracted below: “23.....When a party allows a decree of the Court of First Instance to become final, by not appealing against the decree, it would not be open to another party to the litigation, whose rights are otherwise not affected by the decree, to invoke the powers of the appellate Court under Order 41 Rule 33, to pass a decree in favour of the party not appealing so as to give the latter a benefit which he has not claimed. Order 41 Rule 33 is primarily intended to confer power upon the appellate court to do justice by granting relief to a party who has not appealed, when refusing to do so, would result in making inconsistent, contradictory or unworkable orders. We do not think that power under Order 41 Rule 33 of the Civil Procedure Code can be exercised in this case in favour of the deities.” [Emphasis supplied] 17. The judgment of Madras High Court in Venukuri Krishna Reddi and another v. Kota Ramireddi and others, AIR 1954 Madras 848 was quoted with approval in the judgment of Hon’ble the Supreme Court in Harihar Prasad Singh and others v. Balmiki Prasad Singh and others, (1975) 1 SCC 212 , where it has been laid down that Order 41 Rule 33 CPC should be exercised only where as a result of interference in favour of the appellant it becomes necessary to readjust the rights of other parties; where the question is one of settling mutual rights and obligations between the parties and where relief prayed for and to be granted is single and indivisible but claimed against a number of defendants. In these circumstances even in an appeal filed by one party, the relief ultimately to be granted by the court could be adjusted. In these circumstances even in an appeal filed by one party, the relief ultimately to be granted by the court could be adjusted. Relevant paragraph thereof is extracted below: “Though Order 41 Rule 33 confers wide and unlimited jurisdiction on courts to pass a decree in favour of a party who has not preferred any appeal, there are, however, certain well-defined principles in accordance with which that jurisdiction should be exercised. Normally, a party who is aggrieved by a decree should, if he seeks to escape from its operation, appeal against it within the time allowed after complying with the requirements of law. Where he fails to do so, no relief should ordinarily be given to him under Order 41 Rule 33. But there are well-recognised exceptions to this rule. One is where as a result of interference in favour of the appellant it becomes necessary to readjust the rights of other parties. A second class of cases based on the same principle is where the question is one of settling mutual rights and obligations between the same parties. A third class of cases is when the relief prayed for is single and indivisible but is claimed against a number of defendants. In such cases, if the suit is decreed and there is an appeal only by some of the defendants and if the relief is granted only to the appellants there is the possibility that there might come into operation at the same time and with reference to the same subject-matter two decrees which are inconsistent and contradictory. This, however, is not an exhaustive enumeration of the class of cases in which courts could interfere under Order 41 Rule 33. Such an enumeration would neither be possible nor even desirable.” [Emphasis supplied] 18. Further, the power conferred under Order 41 Rule 33 CPC is to be exercised in exceptional cases, otherwise general principle is that a decree passed by a court is not to be reversed in favour of a party who has not challenged the same. The issue was subsequently considered by Hon’ble the Supreme Court in K. Muthuswami Gounder v. N. Palaniappa Gounder, (1998) 7 SCC 327 . The issue was subsequently considered by Hon’ble the Supreme Court in K. Muthuswami Gounder v. N. Palaniappa Gounder, (1998) 7 SCC 327 . The opinion expressed in paragraph No. 12 thereof is extracted below: “Order 41 Rule 33 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 (1) the appeal is as to part only of the decree; and (ii) 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 proceeding are before the Court and the question raised properly arises (sic out of) one of the judgments of the lower Court and in that event, the appellate Court could consider any objection to any part of the order or decree of the Court and set it right. We are fortified in this view by the decision of this Court in Mahant Dhangir v. Madan Mohan, 1987 Supp. SCC 528. No hard and fast rule can be laid down as to the circumstances under which the power can be exercised under Order 41, Rule 33, Civil Procedure Code and each case must depend upon its own facts. The Rule enables the appellate Court to pass any order/ decree which ought to have been passed. The 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 and this Rule holds good notwithstanding Order 41 Rule 33 CPC. However, in exceptional cases, the Rule enables the appellate Court to pass such decree or order as ought to have been passed even if such decree would be in favour of parties who have not filed any appeal.” [Emphasis supplied] 19. The same was subsequently followed in Banarsi and others v. Ram Phal, (2003) 9 SCC 606 and in Pralhad and others’ case (supra), referred to by learned counsel for the State. The same was subsequently followed in Banarsi and others v. Ram Phal, (2003) 9 SCC 606 and in Pralhad and others’ case (supra), referred to by learned counsel for the State. In the said case, while referring to earlier judgment of Hon’ble the Supreme Court in Banarsi’s case (supra), it was opined that exercise of power under Order 41 Rule 33 CPC is subject to three limitations, namely, 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. Relevant paragraph thereof is extracted below: “20. In Banarsi v. Ram Phal, 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.” 20. If the case of the State is considered in the light of enunciation of law, as referred to above, where it is seeking to invoke inherent powers of the court under Order 41 Rule 33 CPC for setting aside of the award of the Reference Court, in my opinion, no case is made out for invoking the aforesaid provision. 21. The State acquired the land compulsorily. On objections raised by the landowners, the learned Reference Court, considering the material placed on record by the parties, assessed the compensation. There is complete procedure in the State to finally decide the cases in which appeals are to be filed and the cases which are not found fit for filing appeals. When no appeals have been filed by the State in the cases in hand, it means that the authorities at the relevant time found the cases to be fit for not filing appeals. The compensation, as assessed by the learned Reference Court, according to it, was found to be justified in terms of the evidence available on record. It is not a case where the principles, as have been laid down in various judgments, would be applicable as rights between number of parties are not to be readjusted in case the appeals filed by the landowners are allowed. In case the relief claimed in the appeals is simpliciter for enhancement of compensation, acceptance of appeals filed by the landowners will not result in making inconsistent, contradictory or unworkable orders which needs to be readjusted by granting relief to the State. The State in the present case had permitted the award of the court below to become final not by default but by conscious act, hence, it cannot be permitted to plead that in the absence of any appeal or cross objections, it be granted relief against the landowners. Therefore, contention of learned counsel for the State to that extent is rejected. Regarding severance 22. As far as the contention raised by learned counsel for the landowners regarding award of compensation on account of severance is concerned, the fact that on account of acquisition of land for construction of Extrent Sewerage of Urban Estate Rewari, land of some of the landowners has been divided into two parts, has not been disputed. Regarding severance 22. As far as the contention raised by learned counsel for the landowners regarding award of compensation on account of severance is concerned, the fact that on account of acquisition of land for construction of Extrent Sewerage of Urban Estate Rewari, land of some of the landowners has been divided into two parts, has not been disputed. It has even been so recorded by the Reference Court, but still damages on account of severance of land have not been awarded, which the landowners deserve to be granted. On account of acquisition and construction of a minor/drain/distributory, it becomes difficult to cultivate the other portion of the land and to cross over to the other side. The level of a drain/ minor is always above the level of the land, which makes it difficult to irrigate or use the divided portions of the land to its optimum and also to approach the other portion of the land. In my opinion, considering the earlier view taken by this Court in Amin Lal’s case (supra), the landowners, whose land has been bifurcated on account of acquisition of land in question, shall be entitled to damages on account of severance @ 20% of the value of the acquired land. The land owners shall also be entitled to the statutory benefits available under the Act, which may be calculated keeping in view the judgment of Hon’ble the Supreme Court in State of Punjab v. Amarjit Singh, [2011(2) Law Herald (SC) 1388 : 2011(2) Law Herald (P&H) 1055 (SC) : 2011(1) Land.L.R. 563 (SC)] : JT 2011(2) SC 393. With the above observations, the appeals stand disposed of. ---------0.B.S.0------------ —————————