Research › Search › Judgment

Calcutta High Court · body

2014 DIGILAW 940 (CAL)

Arati Das v. Collector, Land Acquisition

2014-09-25

DIPANKAR DATTA, GIRISH CHANDRA GUPTA

body2014
JUDGMENT : Dipankar Datta, J. Feeling aggrieved by the judgment and decree dated March 19, 2009 in FAT No. 001 of 2009 [an appeal under section 54 of the Land Acquisition Act, 1894 (hereafter the LA Act)] passed by an Hon'ble Division Bench of this Court, the appellant (hereafter the applicant) has presented RVW No. 009 of 2009 for its review (hereafter the review petition). An application (CAN 116 of 2009) has also been filed in connection with the review petition praying for permission to allow the applicant to rely on documents annexed thereto for the purpose of proving that possession of the applicants property was taken in 1960 by the respondent Collector. 2. Two plots of land allotted to and occupied by the applicant, viz. A/2 and A/1 of Manglutan village, Ferrarganj Tehsil in South Andaman (hereafter the acquired plots) were the subject matter of Land Acquisition Case No.8 of 2003, arising out of a reference dated March 16, 2003 under section of 18 of the LA Act. It was decided by the judgment and decree under appeal dated December 30, 2008, which was modified by the Hon'ble Division Bench by the judgment and decree under review. The following relief was granted to the applicant: "In that view of the matter the amount of compensation fixed by the learned District Judge in so far as the same related to the value of the land at Rs. 3,40,050/- is upheld, the amount of solatium fixed by the learned District Judge at Rs. 1,02,015/- is also upheld. On account of compensation for the financial loss a sum of Rs. 59400/- on account of damages arising out of the financial loss @ Rs. 1350/- for 44 years (1958 to 2002) is fixed. These three figures work out to a sum of Rs. 5,01,465/-. The appellant shall be entitled to interest on the aforesaid sum of Rs. 5,01,465/- @ 9% per annum from the date of notification under section 4 of the Land Acquisition Act until the date of payment under section 28 of the Land Acquisition Act." 3. These three figures work out to a sum of Rs. 5,01,465/-. The appellant shall be entitled to interest on the aforesaid sum of Rs. 5,01,465/- @ 9% per annum from the date of notification under section 4 of the Land Acquisition Act until the date of payment under section 28 of the Land Acquisition Act." 3. The grounds of review as appearing from the review petition are mainly as follows: (i) error was committed by the Hon'ble Division Bench in not granting 9% interest per annum on the excess amount for the first year and 15% after the expiry of first year till the date of payment; (ii) error was committed by the Hon'ble Division Bench in denying the benefit provided by sections 23, 1A, 23(2), 28 and 34 of the LA Act; (iii) error was committed by the Hon'ble Division Bench by overlooking the admission of the parties regarding acquisition of the property in 1960 and by denying compensation with effect from 1960 when admittedly possession was taken invoking the urgency clause under the LA Act; (iv) error was committed in denying compensation by granting interest on solatium; and (v) a review of the impugned judgment and decree is warranted based on discovery of new documents furnished to the applicant in terms of the Right to Information Act (hereafter the RTI Act) on April 9, 2009, viz. (a) the order dated November 8, 1999 of the Secretary, Revenue (passed while disposing of a representation of the applicant in compliance with an order of a learned Single Judge of this Court dated September 14, 1999 in W.P. No. 58 of 1999), and (b) a notification No. 97/60 dated May 10, 1960 issued by the Chief Commissioner, Andaman & Nicobar Islands under section 7 of the LA Act. 4. It is noted that while the order dated November 8, 1999 specifically acknowledges that "an area of 1.12 hects situated at Manglutan village for construction of road from Nayasher to Manglutan was acquired by the Collector Land Acquisition out of the land allotted to the writ petitioner during 8.6.1960" vide notice no. 4. It is noted that while the order dated November 8, 1999 specifically acknowledges that "an area of 1.12 hects situated at Manglutan village for construction of road from Nayasher to Manglutan was acquired by the Collector Land Acquisition out of the land allotted to the writ petitioner during 8.6.1960" vide notice no. R/ 14/44-A/1011 dated June 8, 1960, the notification dated May 10, 1960 records that a declaration was issued under section 6 of the LA Act in respect of the plots, pieces and parcels of land situated in the locality described in the schedules appended thereto along with trees and structures standing thereon, if any, as being needed for a public purpose, namely, construction of public roads by the Andaman Public Works Department, and the Collector was directed to take order for the acquisition of the same. The acquired plots, viz. A/2 and A/1 of Manglutan village, form part of schedule II appended to the notification. 5. The grounds on which a review of a judgment is permissible under section 114 read with Order 47 of the Code of Civil Procedure (hereafter the Code) are limited. An error or some mistake that is apparent on the face of the record and does not require elaborate arguments to establish is one of the recognised grounds of review. Review would also be permissible if new documents are discovered, of which the review applicant had no knowledge or could not lay hands on earlier despite exercising due diligence, and if placed for consideration before the Court prior to the impugned judgment being delivered, the same would have a bearing on the outcome of the lis decided by it. Any other sufficient reason is also a ground for review, which in terms of judicial pronouncements, means a reason sufficiently analogous to those specified in Rule 1 of Order XLVII. 6. It would appear from the grounds of review which have been 'summarized in paragraph 3 supra that points (i) and (ii) relate to alleged errors committed by the Hon'ble Division Bench regarding computation of the quantum of compensation. These errors, if at all the same could be termed errors, arise out of interpretation or mis-interpretation of the LA Act by the Hon'ble Division Bench and are such that the same could be corrected in appeal by a Superior Court. These errors, if at all the same could be termed errors, arise out of interpretation or mis-interpretation of the LA Act by the Hon'ble Division Bench and are such that the same could be corrected in appeal by a Superior Court. These errors are not errors apparent on the face of the records, as understood within the meaning of Rule 1 Order 47 of the Code. It has to be remembered that a review is not a rehearing of an appeal in disguise. The said grounds, therefore, do not appeal to us to be sufficient to warrant a review of the judgment and decree dated March 19, 2009. 7. The applicant assails the judgment and decree dated March 19, 2009 on one other ground. She was denied interest on solatium. We are of the opinion, in view of the decisions of the Supreme Court in Prem Nath Kapur v. National Fertiliser Corporation of India Ltd., (1996) 2 SCC 71 , and State of Haryana v. Joginder Singh, (1997) 3 SCC 628 , that no interest on solatium is payable. This ground is also, therefore, without any merit. 8. Point (v) supra reveals the attempt of the applicant to set up a case of discovery of documents, which she could not produce despite exercise of due diligence. It would appear from the pleadings in CAN 116 of 2009 that the application under section 6 of the RTI Act was made for the first time on March 26, 2009 after the judgment and decree dated March 19, 2009 was passed. The RTI Act with all its provisions became operative at least from mid-October, 2005. The learned District Judge, Andaman & Nicobar Islands decided the reference by judgment and decree dated December 30, 2008. The RTI Act had seen the light of the day much prior to December 30, 2008. We are not satisfied that the applicant had exercised due diligence to obtain the documents (which she now seeks to rely on in support of her claim in the review petition) while the appeal was pending but had failed in her pursuit. There is no explanation worth the name as to why the applicant waited for disposal of FAT No. 1 of 2008 and thereafter applied for information invoking the provisions of the RTI Act. There is no explanation worth the name as to why the applicant waited for disposal of FAT No. 1 of 2008 and thereafter applied for information invoking the provisions of the RTI Act. We are constrained to hold that the applicant did not exercise due diligence while Land Acquisition Case No.8 of 2003 and FAT No.1 of 2008 were pending for consideration on the file of the relevant Courts. The ground urged, therefore, is not acceptable. 9. However, we have looked into the annexures to CAN No. 116 of 2009. The applicant by her request dated March 26, 2009 had sought for, inter alia, certified copies of the order of the Secretary (Revenue) dated November 8, 1999 and the notice bearing No. R/14/44-A/1011 dated June 8, 1960. It is in compliance with the request of the applicant under the RTI Act that the order dated November 8, 1999 and the notification dated May 10, 1960 were furnished to her, although copy of the aforesaid notice dated June 8, 1960 was not furnished. Based on our consideration of the said two additional documents, we are inclined to take the view that there is sufficient reason to review the impugned judgment and decree bearing in mind point (iii) supra urged on behalf of the applicant. We are reminded of the decision in A.R. Antulay v. R.S. Nayak, (1988) 2 SCC 602 ; where the Supreme Court acknowledged : "To err is human, is the oft-quoted saying. Courts including the apex one are no exception. To own up the mistake when judicial satisfaction is reached does not militate against its status or authority. Perhaps it would enhance both." 10. There was substantial debate before the Reference Court as well as the Hon'ble Division Bench regarding the exact date/period when possession of the acquired plots was taken. For reasons recorded in the judgment under review, the Hon'ble Division Bench held that possession was taken in 1983. Perhaps it would enhance both." 10. There was substantial debate before the Reference Court as well as the Hon'ble Division Bench regarding the exact date/period when possession of the acquired plots was taken. For reasons recorded in the judgment under review, the Hon'ble Division Bench held that possession was taken in 1983. However, it cannot be ignored that the order of the Revenue (Secretary) dated November 8, 1999 and the gazette notification dated May 10, 1960 are public documents and no sooner the applicant applied under section 6 of the RTI Act on March 26, 2009, these were certified on April 9, 2009 and furnished to her on that very date Significantly notice No. R/14/44-A/1011 dated June 8, 1960 referred to in the order of the Revenue (Secretary) dated November 8, 1999 was not furnished to the applicant despite her request in terms of section 6 of the RTI Act. 11. Be that as it may, in view of the undeniable fact that these two documents were in the custody of the administration even in April, 2009, the reason assigned by the Hon'ble Division Bench that "when proceedings are taken 40 or 50 years after the alleged date of taking possession, then it is too much to expect that the adversary would be in a position to adduce adequate evidence to disprove the case of the claimant", does not survive. The administration despite taking possession of the acquired plots did not finalise the quantum of compensation payable to the applicant and she was well within her right to seek reference under section 18 of the L.A. Act till six weeks after the required notice under sub-section (2) of section 12 thereof was served on her. 12. A Court of law exists to administer justice to the parties, according to law. The power of review is provided to the Courts, also for doing justice. The power may also be exercised, in an appropriate case, to prevent miscarriage of justice. The present litigation is not a private litigation, but one where the State is the principal respondent; and it concerns affectation of a valuable right of a citizen protected by Article 300A of the Constitution. Acquisition of a citizens land for a public purpose is well-nigh authorized; subject to the condition that proper quantum of compensation is paid in lieu thereof. Acquisition of a citizens land for a public purpose is well-nigh authorized; subject to the condition that proper quantum of compensation is paid in lieu thereof. That it is the basic duty of the State to be fair to all litigants, cannot be gainsaid. 13. Although the claimant before the Reference Court stands in the position of a plaintiff in a civil suit, in our view, the proceedings before such Court are more inquisitorial than adversarial. The Collector does not stand as an adversary in a reference but is duty bound to assist the Reference Court to assess proper compensation that is payable to a claimant. Section 19 of the LA Act would lend support to such a conclusion. To be fair to the claimant as well as the Reference Court, the Collector ought to produce all the relevant documents that are in his possession at the time the Reference Court is seized of the matter. 14. In the present case, the administration had in its possession, despite lapse of nearly half a century from date of alleged dispossession of the applicant, documents that could throw light on the date/period when possession of the acquired plots was taken. It, however, withheld information. Such withholding of information by the administration, in a case of the present nature, cannot enure to its advantage. It is not only a right of the Court to correct a mistake or error on review but a duty too. The best evidence was in the hands of the administration, which it ought to have produced, to satisfy the Court that the applicant had been duly compensated for acquisition of her property. 15. It has not escaped our notice that notification under section 4 of the LA Act was issued in November, 2002 pursuant to orders of the High Court in the writ jurisdiction and writ appeal jurisdiction. However, surfacing of the notification dated May 10, 1960 brings about a sea change in the situation. It refers to a declaration under section 6(1) of the LA Act, which could not have been issued without a prior Section 4 notification. However, surfacing of the notification dated May 10, 1960 brings about a sea change in the situation. It refers to a declaration under section 6(1) of the LA Act, which could not have been issued without a prior Section 4 notification. The exact period of time from when Nayasher Manglutan road was opened for vehicular traffic may assume importance for determining the likely date of taking over possession of the acquired plots for the construction of such road and if considered necessary, the Reference Court may in its discretion requisition any other relevant document for determination of just compensation. 16. The administration not having produced the order of the Revenue (Secretary) dated November 8, 1999 and the gazette notification dated May 10, 1960, we are of the considered opinion that interest of justice would be best served if the applicant is granted opportunity to produce and prove the same before the Reference Court. 17. We, therefore, find sufficient reason to recall the judgment and decree under review and, therefore, order accordingly. In view of our aforesaid findings, the judgment and decree that was under appeal in FAT No.1 of 2009 stands set aside and Land Acquisition Case No. 8 of 2003 is revived and is restored to its original number and file. The applicant shall be at liberty to adduce additional evidence in support of her claim, in accordance with law. The Reference Court shall proceed to re-hear and re-decide the reference, also in accordance with law. Having regard to the lapse of time over the years, we hope and trust that the Reference Court shall expedite its decision. 18. RVW No. 009 of 2009 stands allowed. Consequently, CAN No. 116 of 2009 stands disposed of. 19. There shall be no order for costs. Later: We proposed to pronounce the judgment via video conference. However, due to a technical snag it did not materialise. We have, accordingly, pronounced the judgment in open Court in the presence of Md. Tabraiz, learned advocate for the administration. Girish Chandra Gupta, J.