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Himachal Pradesh High Court · body

2018 DIGILAW 1511 (HP)

Khazana Ram v. Land Acquisition Collector

2018-08-13

TARLOK SINGH CHAUHAN

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JUDGMENT : Tarlok Singh Chauhan, J. Since both these appeals arise out of the same award as passed by the learned District Judge, Solan, H.P., on 5.6.2009 in L. Ref. No. 3-S/4 of 2008/2004, the same were taken up together for hearing and are being disposed of by a common judgment. 2. The brief facts of the case are that the Government of Himachal Pradesh issued a notification dated 26.12.1990 under Section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as the “Act”) for acquisition of 591 bighas of land in villages Bated, Suli, Khata, Dwaroo, Rauri and Pachhyour, Tehsil Arki, District Solan, for establishment of cement factory by M/s Ambuja Cements Ltd., formerly known as Gujarat Ambuja Cements Ltd., (hereinafter referred to as the “beneficiary company”). The proclamation of this notification was made in the related villages on 5.1.1991 and it was also published in newspaper on 6.1.1991 and 8.1.1991 respectively. 3. It is the case of the beneficiary company that the Land Acquisition Collector, Arki, after holding an enquiry as per provisions of the Act, announced a consent award No. 1/91 for 448-14 bighas of land on 18.5.1992 and provided compensation @ Rs. 62,000/- per bigha (inclusive of solatium and interest) for cultivated land and Rs. 19,000/- per bigha (inclusive of solatium and interest) for un-cultivated land. It is claimed that the land of the appellants in RFA No. 287/2009 (hereinafter referred to as the “claimants”) was also acquired under the aforesaid award, however, despite that, the claimants disputed the award and filed a reference petition, which was decided by the learned District Judge, Solan on 31.10.1998 by returning the reference to the Land Acquisition Collector, Arki, to adjudicate as to whether the claimants were consenting parties or not. 4. The Land Acquisition Collector, Arki, after holding an enquiry found the claimants to be consenting parties and accordingly, rejected the prayer for making a reference to the Court vide order dated 30.6.1999. The claimants then filed a writ petition before this Court challenging the orders passed by the learned District Judge, Solan and the Land Acquisition Collector, Arki, which was allowed by this Court vide order dated 27.12.2006 by quashing both the orders and the learned District Judge, Solan, was directed to decide the reference in accordance with law. The claimants then filed a writ petition before this Court challenging the orders passed by the learned District Judge, Solan and the Land Acquisition Collector, Arki, which was allowed by this Court vide order dated 27.12.2006 by quashing both the orders and the learned District Judge, Solan, was directed to decide the reference in accordance with law. However, it was made clear that while disposing of the petition, this Court had not expressed any opinion on the merits of the rival contentions of the parties. The learned District Judge, Solan, passed his award on 5.6.2009 by enhancing the compensation to Rs.66,666/- per Bigha in favour of the claimants irrespective of the nature of the land and in addition thereto, the claimants had been held entitled to all statutory benefits like solatium, additional compulsory charges under Section 23(1-A) of the Act and the interest etc. 5. As noted above, the claimants assailed the award being inadequate and have claimed a sum of Rs.12,25,000/- towards enhanced compensation along with statutory benefits and on the other hand, the beneficiary company also assailed the award on various grounds including non-maintainability of the appeal against the consent award. 6. I have heard the learned counsel for the parties and have also gone through the record of the case carefully. 7. At the outset, it may be observed that the proposition that the claimants would not be entitled to seek reference to the civil court against a consent award is no longer res integra as would be evident from various decisions of the Hon’ble Supreme Court, some of which are being referred to below. 8. In State of Gujarat and others vs. Daya Shamji Bhai and others, (1995) 5 SCC 746 , it was held by the Hon’ble Supreme Court that once the claimants agreed to accept the compensation determined by the Land Acquisition Officer and 25% more in addition thereto and also agreed to forego their right to seek reference, then the contract is conclusive and binding and the claimants are not entitled to seek reference to the civil court. 9. Similar reiteration of law can be found in the judgment of the Hon’ble Supreme Court in IshwarLal Premchand Shah and others vs. State of Gujarat and others, (1996) 4 SCC 174 . 10. 9. Similar reiteration of law can be found in the judgment of the Hon’ble Supreme Court in IshwarLal Premchand Shah and others vs. State of Gujarat and others, (1996) 4 SCC 174 . 10. In addition to the above, there can be no quarrel with the proposition that an award under the Act can be passed either on consent of the parties or on the adjudication of rival claims. However, in case the award is passed on the basis of the consent, then the parties to the award cannot assail the same. (Refer: State of Karnataka and another vs. Sangappa Dyavappa Biradar and others (2005) 4 SCC 264 ) 11. In fact, the entire law on the subject has been elaborately and eloquently considered by the Hon’ble Supreme Court in its recent judgment in Ranveer Singh vs. State of Uttar Pradesh through Secretary and others, (2016) 14 SCC 191 , wherein it was observed as under:- “9. In Daya Shamji Bhai after the notification for acquisition under Section 4(1), the land owners agreed in writing to accept the compensation determined by the Land Acquisition Officer along with 25% enhancement. With such consent they also agreed that they will not go to any court under Section 18 of the Act. Accordingly the land owners were paid in terms of the agreement. In spite of such agreement the land owners sought a reference to which the State objected. The reference court rejected the contention of the State on the ground that the agreements were not registered under the Registration Act and the land owners could not contract out from statute. In the background facts noted above this Court held in favour of the State that the agreement was permitted under sub- section 2 of Section 11 which gives right to the parties to enter into an agreement to receive compensation under Section 11 in terms of the contract. Such contract was held to be conclusive and binding on the parties and therefore the land owners were not entitled to seek any reference for enhancement of the compensation. It was clarified that when compensation is received under protest only then Section 18 gets attracted. In paragraph 8 of the report the issue of awarding interest and statutory benefits was also decided against the land owners in following terms:- "8. It was clarified that when compensation is received under protest only then Section 18 gets attracted. In paragraph 8 of the report the issue of awarding interest and statutory benefits was also decided against the land owners in following terms:- "8. The question of awarding interest and statutory benefits arises when the civil court finds that the amount of compensation awarded to the landowners by the Collector is not adequate and the prevailing market value is higher than the market value determined by the Land Acquisition Officer under Section 23(1). For entitlement to solatium under Section 23(2) "in addition to" market value the court shall award solatium. Under Section 28, if the court gets power to award interest, when court opines that the Collector "ought to have awarded compensation in excess of the sum which the Collector did award (sic) the compensation". In other words, valid reference under Section 18 confers jurisdiction on the civil court to consider whether the compensation awarded by the Collector is just and fair. Thereafter, when it finds that the Collector ought to have awarded higher compensation, the civil court gets jurisdiction to award statutory benefits on higher compensation from the date of taking possession only. In view of the specific contract made by the respondents in terms of Section 11(2), they are not entitled to seek a reference. Consequently, the civil court is devoid of jurisdiction to go into the adequacy of compensation awarded by the Collector or prevailing market value as on the date of notification under Section 4(1) to determine the compensation under Section 23(1) and to grant statutory benefits." (emphasis added) 10. In Sangappa Dyavappa Biradar reliance was placed upon Daya Shamji Bhai and the same principles were reiterated by holding that an application for reference to civil court is maintainable only if there is non- acceptance of the award by the awardee. Once parties agree to the compensation payable and consent award is passed, the same would bind the parties unless it is set aside in appropriate proceedings by a court of competent jurisdiction. The consent award accepted without protest extinguishes the legal right to maintain a reference for enhancement of compensation, more so when the land owners agreed not to seek any enhancement. The consent award accepted without protest extinguishes the legal right to maintain a reference for enhancement of compensation, more so when the land owners agreed not to seek any enhancement. In that case also the land owners had agreed that they would not approach any court for enhancement of compensation and had received the amount of compensation in terms of the consent award in full satisfaction of their claim. After being unsuccessful before the reference court and in writ petition before the Single Judge, the land owners got relief by the Division Bench of the High Court on the ground that in any event they could not be deprived of their statutory right of obtaining solatium and interest in terms of the Act. The High Court's direction for payment on the basis of such statutory provisions was set aside by this Court by holding that applications under Section 18 were not maintainable. The land owners having accepted the award, were estopped from maintaining the applications. 11. This Court in Sangappa Dyavappa Biradar case further held that the High Court also had no jurisdiction under Article 226 to substitute the consent award by directing payment of statutory solatium and interest. It flows from this judgment that by virtue of the agreement, right to receive solatium and interest can be waived. Further, when the land owners agreed that they would not seek enhancement of compensation by claiming any amount in addition to the amount agreed upon and that they would accept the agreed amount without any protest, the High Court could not have substituted the award by permitting further enhancement on any ground. 12. The main thrust of arguments advanced on the behalf of the appellant, particularly to get rid of the difficulty in his way on account of the aforesaid two judgments is that the land owner agreed not to claim any amount beyond the agreed amount as compensation and therefore the appellant is free to claim any further amount as interest under Section 34 of the Act because such interest is not and cannot be included as a component of compensation which is determined by the Collector under Section 11 of the Act while making the award. Further submission on behalf of the appellant is that various matters which require consideration in determining compensation by court under Section 23 of the Act do not include interest contemplated by the Section 34 of the Act which is payable when the compensation is not paid or deposited on or before taking the possession to the land. 13. On its face the aforesaid contentions appears to be attractive but on a closer analysis of Section 11 as well as Section 23 it is found to have no merits. Section 23 is for guidance of the court which gets jurisdiction to determine compensation afresh only if there is a protest against the award and the payment is received with protest. This section does not control the determination of just compensation by the Collector under Section 11 which requires the Collector to enquire into objections (if any) on different issues such as measurement and interests of the person claiming compensation and then further requires the collector to make an award which is required to reflect, interalia, "the compensation which in his opinion should be allowed for the land." But it is more appropriate and relevant to notice sub-section 2 of Section 11 which is as follows: "11.(2) Notwithstanding anything contained in sub-section (1), if at any stage of the proceedings, the Collector is satisfied that all the persons interested in the land who appeared before him have agreed in writing on the matters to be included in the award of the Collector in the form prescribed by rules made by the appropriate Government, he may, without making further enquiry, make an award according to the terms of such agreement." 14. This sub-section begins with a non-obstante clause which makes it free of the requirements of sub-section (1) if all the persons interested in the land agree in writing as to what matters should be included in the award of the Collector. Thereupon the Collector is competent to make an award as per agreement without making further enquiry. This sub-section begins with a non-obstante clause which makes it free of the requirements of sub-section (1) if all the persons interested in the land agree in writing as to what matters should be included in the award of the Collector. Thereupon the Collector is competent to make an award as per agreement without making further enquiry. In view of such clear provision that permits agreement to determine all the matters to be included in the award, all the inclusions and omissions in the consent award must be treated as based upon agreement of the parties and the final amount determined by way of agreement must be taken as a completely just compensation inclusive of the statutory interest payable to the claimant for the concerned land at least on the date of agreement. Since the agreed compensation amount is accepted without protest with a clear stipulation not to claim any additional amount, it has to be deemed that the compensation reflected in the consent award has taken into account all relevant factors including interest till the date of agreement. Moreover the right to seek reference for enhancement itself gets lost by accepting the compensation without protest especially when there is an agreement that the land owner shall not claim any amount in addition to the amount agreed upon as compensation and shall accept the compensation without any protest. In such circumstances agreed amount has to be treated as a just compensation permitting no addition or substitution whatsoever. In other words, not only the remedy under the Act of seeking enhancement is lost but the substantive cause of action also vanishes when the land owner agrees for a consent award and the amount of compensation is accepted without any protest. 15. Equitable considerations also cannot help the appellant because the agreed amount was paid without any delay, on the date of agreement itself. Notably, the award passed on the basis of agreement with the appellant stipulates the amount of compensation at Rs. 329.76p. per Sq.Yd. However, in the case of other claimants under the same Notification who had not entered into such agreement, the rate was fixed at Rs. 50.57p. per Sq.Yd. with 30% solatium and 12% interest from the date of taking possession. Thus, the agreement with the appellant was a package with regard to the compensation amount voluntarily accepted by the appellant without any demur. 50.57p. per Sq.Yd. with 30% solatium and 12% interest from the date of taking possession. Thus, the agreement with the appellant was a package with regard to the compensation amount voluntarily accepted by the appellant without any demur. The argument of equitable consideration is, therefore, misplaced and ill- advised.” 12. It is, thus, clear that right to seek reference would arise only when the amount of compensation was received under protest in writing, which would manifest the intention of the owner of non-acceptance of the award and further no reference would otherwise be maintainable against a consent award. 13. Now, adverting to the records, it would be noticed that according to the Land Acquisition Collector, Arki, award No.1/91 was passed on the basis of the consent. Initially, the objections and arguments were heard on 9.8.1991 after giving wide publicity. The names of persons, who attended the proceedings, were recorded in the register and the same includes the claimants, whose names are mentioned at Sr. No.7 and 8 respectively of village Khata. It is thereafter that on 11.8.1991 that the parties entered into an agreement in accordance with provisions of Section 11(2) of the Act, according to which, all the landowners of the area under acquisition agreed to accept the rates @ Rs. 62,000/- per bigha for cultivated land(s) recorded in the revenue records as Barani Awal, Barani Dom Land, Barni Som etc. and @ Rs.19,000/- per bigha for uncultivated land(s) recorded in the revenue records as Banjar Kadeem, Banjar Jadeed, Ghasni, Banjar etc. Actual cost of fruit trees and non-fruit trees was agreed to be paid as per the valuation norms followed by the Horticulture and Forest Departments of the State Government and actual cost of houses/sheds etc. as per the valuation norms followed by the Public Works Department of the State Government was also agreed to be paid to the concerned owners. All the above rates were agreed to be paid inclusive of solatium and interest charges as payable under the Act. 14. as per the valuation norms followed by the Public Works Department of the State Government was also agreed to be paid to the concerned owners. All the above rates were agreed to be paid inclusive of solatium and interest charges as payable under the Act. 14. As stated above, it is the specific case of the claimants that they were not privy to the agreement and had accepted the compensation under protest, However, this plea is belied from the record as both the claimants (Khazana Ram and Devki Devi) had accepted compensation of Rs.58,565/- each without any protest as is evident from part-VI of the register (Award No.1/91) relating to Village Khata, wherein their names are mentioned at Sr. No. 43 and 44 respectively. Not only this, the receipt of claims have been signed on revenue receipts by Khazana Ram for himself and Devki Devi, being her power of attorney. Likewise, the record pertaining to payment of compensation of Village Rouri is also available in part-VII of the register and here again, compensation to the tune of Rs.49,782/- in favour of Khazana Ram and compensation to the tune of Rs.49,781/- in favour of Devki Devi has been received by Khazana Ram without protest as an individual interest holder and as power of attorney holder of Devki Devi. 15. Now, the question is as to whether there was an agreement between the parties or not. 16. The beneficiary company has produced register, Part-I, which again pertains to the Award No.1/91,wherein the agreement between the parties, known as, “SAHMATI KA GYAPAN” is duly available on pages159/160 onwards. To this agreement, list of persons is appended, who were signatories to the agreement and the same includes name of the claimants Khazana Ram, son of Kana Ram, Devki Devi, daughter of Kana Ram and Parvati, widow of Kana Ram. 17. Thus, it stands duly proved on record that the claimants not only had received the compensation without any protest, but as a matter of fact, the claimants were consenting party to the award. Thus, the reference on their behalf was not at all maintainable under the Act. Therefore, the findings recorded by the learned District Judge that the award passed by the Land Acquisition Collector was not a consent award are totally perverse and contrary to the record and are accordingly quashed and set aside. 18. Thus, the reference on their behalf was not at all maintainable under the Act. Therefore, the findings recorded by the learned District Judge that the award passed by the Land Acquisition Collector was not a consent award are totally perverse and contrary to the record and are accordingly quashed and set aside. 18. At this stage, in order to be fair with the claimants, it has been strongly urged by Mr. Vinay Kuthiala, learned Senior Advocate that now in view of the latest judgments of the Hon’ble Supreme Court, the identically situated land owners are entitled to the same compensation and in support of this contention, he would bank upon the following judgments:- i. Ajay Pal and others vs. State of Haryana and another, (2015) 14 SCC 462 ; ii. Chandra Bhan (Dead) through legal representatives and others vs. Ghaziabad Development Authority and others (2015) 15 SCC 343; and iii. Narendera and others vs. State of Uttar Pradesh and others, (2017) 9 SCC 426 . 19. Obviously, there can be no quarrel with the proposition as laid down in the aforesaid cases, but the ratio laid down therein does not apply to the instant case as this Court has already held that not only the claimants had accepted the award without protest, but in addition thereto, the award was a consent award, against which no reference to the civil court is otherwise maintainable. In none of the judgments cited above has the Hon’ble Supreme Court held that an appeal would lie against a consent award. 20. In view of the aforesaid observations, the appeal (RFA No. 321/2009) filed by the beneficiary company is allowed and the appeal (RFA No. 287/2009) filed by the claimants is dismissed. Consequently, the impugned award dated 5.6.2009 passed by the learned District Judge, Solan, is quashed and set aside. Resultantly, the consent award passed by Land Acquisition Collector, is upheld. The parties are left to bear their own costs. Pending applications, if any, also stands dismissed.