Full Judgment Text
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CASE NO.:
Appeal (civil) 443 of 2001
PETITIONER:
ISHWAR DUTT
RESPONDENT:
LAND ACQUISITION COLLECTOR and ANR.
DATE OF JUDGMENT: 02/08/2005
BENCH:
ASHOK BHAN & S.B. SINHA
JUDGMENT:
JUDGMENT
BHAN,ASHOK J.
Claimants/appellants aggrieved against the common/similar judgments and
orders dated 20.12.1999 passed by the High Court of Himachal Pradesh
dismissing their claim for interest @ 12% granted by an earlier order of
the Division Bench of the same High Court in C.W.P. No. 510/85 dated
9.9.1985 on equitable consideration for depriving them of their lands
without taking proceedings under the Land Acquisition Act and payment of
compensation have come up in these batch of appeals.
Facts being common and similar it would be sufficient to refer to the facts
of CA No. 443 of 2001 for the purposes of deciding the controversy involved
in these appeals.
Some areas of Himachal Pradesh before re-organisation of the State of
Punjab on 1.11.1966 formed part of the erstwhile State of Punjab. Public
Works Department, Government of Punjab in the year 1966 took up the
construction of Solan-Jawanji-Dharja Road. After the re-organisation of the
States on 1.11.1966 the PWD Department of H.P. took over the construction.
The road was finally commissioned in the year 1968. Possession of the land
owned by the appellants comprising of Khasra No. 102/1 situated in Village
Bagur, Tehsil and District Solan, along with the lands of large number of
villages that came under the said road construction plan was taken over in
the year 1968. Though the possession of the land was taken over from the
Land-owners in December, 1968 no steps were taken to formally acquire the
land by issuing notification under Section 4 of the Land Acquisition Act,
1894 [hereinafter referred to as "the Act"].
Having failed to secure justice to get any compensation or even step being
taken by the Government for acquiring the land of nearly 17 years, a public
interest writ petition No. 510 of 1985 titled Chander Kant Sharma and Ors.
v. State of Himachal Pradesh, was filed. The State of Himachal Pradesh
failed to justify any valid reasons for not taking steps to get the land
acquired and for not paying any compensation to the Land-owners. Finding
grievance of the writ petitioners to be genuine the High Court vide its
judgment and order dated 9.9.1985 directed the respondents to complete the
acquisition proceedings within a time frame and further directed them to
pay to the writ petitioners interest @ 12% per annum from the date of
taking over of possession till the date of payment of interim compensation
and of final compensation, if there is enhancement. It was observed that
the aforesaid interest payable was in the nature of equitable compensation
and such interest shall be in addition to the compensation, solatium and
interest at the statutory rate which would be paid to the writ petitioners
under the law whether awarded by the Collector or enhanced by the Court and
such interest shall not be taken into consideration in any proceeding under
the Act while awarding the statutory compensation (direction No. 3). The
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Division Bench gave the following directions for expeditious relief to the
writ petitioners:
"1. The acquisition proceedings in respect of villages Ser Chirag, Tawa
Talara and Gatool shall be completed on or before January 31, 1986 and
those in respect of land situate in village Deon Dhar shall be completed on
or before June 30, 1986.
2. The petitioners shall be paid as and by way of interim compensation,
without prejudice to their rights and contentions to claim the compensation
due to them in accordance with law in the course of the proceedings under
the Act, a sum determined on the basis of the tentative market value set
out in column No. 9 of the statements in a tabular form annexed to the
affidavits of the Superintending Engineer and the Land Acquisition Officer.
The interim compensation will be paid to the petitioners after explaining
the aforesaid position to them against a receipt to be executed by them
acknowledging the payment towards the ultimate compensation to which they
become entitled in accordance with law. The payment will be made within a
period of four weeks from today.
3. On the amount of compensation payable to the petitioners, interest at
the rate of 12 per cent per annum shall be paid from the date of the taking
over of possession till the date of payment of interim compensation and of
final compensation, if there is enhancement. The interest payable
accordingly is in the nature of an equitable compensation and such interest
will be in addition to the compensation, solatium and interest at the
statutory rate which will be paid to the petitioners under the law, whether
awarded by the Collector of enhanced by the Court, and such interest will
not be taken into consideration in any proceeding under the Act, while
awarding the statutory compensation.
4. The tabular statement appended to the affidavits of the Superintending
Engineer and the Land Acquisition Collector gives the requisite information
relating to the land situate in other eleven villages which has been taken
possession of for the purposes of the construction of the road in question.
The land-owners, whose land in those villages has been taken possession of,
will also be entitled to similar treatment. Under the circumstances, in
order to ensure similar treatment being accorded to persons identically
situate as the petitioners and in order to avoid proliferation of
limitation, it appears to be just and proper to direct that the land-
owners, whose land situate in those eleven villages has also been taken
possession of for the purposes of the construction of the road in question,
will also be entitled to the payment of interim compensation and equitable
compensation on the same basis as the petitioners herein and that in those
cases also, the acquisition proceedings shall be completed on or before
January 31, 1986 and June 30, 1986, as the case may be, depending upon
whether or not the acquisition proceedings have been initiated under
Section 4 of the Act."
As the writ petition had been filed in public interest, in the direction
No. 4 it was ordered by the Court that all the Land-owners whose land had
been taken possession of in either of the awards would be entitled to the
similar relief.
Some other petitioners filed CWP No. 125 of 1986 and CWP No. 147 of 1988
which were also disposed of with the similar directions.
As a result of the directions issued by the High Court in its order dated
9.9.1985 the respondents issued the notification under Section 4 of the Act
for Village Bagure vide Notification No. Lok-Nirmn (Kha) - 7 (1)/62/88
dated 25.2.1989 published in the H.P. Gazette dated 15.4.1989. The Land
Acquisition Collector completed the formalities of acquiring the land and
ultimately by its award No. 27/1990 dated 31.1.1991 fixed the market value
of the land at Rs. 9,727 per bigha. Apart from the statutory benefits of
solatium etc. the land-owners were also awarded the interest @ 12% p.a.
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from the date of taking over of possession till the date of payment as
directed by the Division Bench in its order dated 9.9.1985 on equitable
grounds.
Being aggrieved against the market value fixed by the Land Acquisition
Collector the appellants filed an application seeking reference under
Section 18 of the Act to the District Judge. The District Judge, Solan vide
its award dated 1.9.1992 enhanced the compensation to Rs. 45,000 per bigha.
It was held that the land-owners were entitled to compensation at the rate
of Rs. 45,000 per bigha and that they shall be further entitled to :
"(a) Compulsory acquisition charges at the rate of 30% on the market
value assessed above;
(b) Additional compulsory acquisition charges at the rate of 12% per
annum on the market value assessed above with effect from the date of
notification under Section 4 of the Act of 1894, that is, 7.5.1989, till
the date of the award, that is, 31.1.1991,.
(c) Interest at the rate of 12% per annum on the compensation assessed
above with effect from 18.12.1968 till the date of payment of compensation
in terms of the orders of the Hon’ble High Court in CWP No. 147/ 1988;
(d) Interest at the rate of 9% per annum on the enhanced compensation
from the date of possession, that is, 18.12.68 till the date of expiry of
one year thereafter, that is, 17.12.1969;
(e) Interest at the rate of 15% per annum of the enhanced amount with
effect from 18.12.1969 till the date of payment of the amount in Court."
The Respondents being aggrieved by and dissatisfied with the said award
preferred a First Appeal under Section 54 of the Act before the High Court
which was marked as Regular First Appeal No. 104 of 1993. By reason of the
impugned judgment, a Division Bench of the High Court while upholding the
amount of compensation payable to the Appellant herein for acquisition of
the land set aside that part of the award, purported to be relying on or on
the basis of the decision of this Court in State of Himachal Pradesh and
Ors v. Dharam Das, AIR (1996) SC 127, complying the payment of interest
only with effect from 7.5.1989 or with effect from the date of publication
of the notification under Section 4(1) of the Act and not from 18.12.1968.
In Dharam Das, (supra) the State of Himachal Pradesh had filed an appeal
against the judgment rendered in C.W.P. No.125 of 1986, [State of Himachal
Pradesh and Ors. v. Dharam Das], in which a direction similar to the one
which had been given by the High Court in C.W.P. No.510 of 1985, [Chander
Kant Sharma and Ors. v. The State of Himachal Pradesh through the Secretary
and Anr.] was given. This Court did not approve of the view taken by the
High Court and a contra view was taken by holding that the amount other
than the one envisaged either under Section 23 (1-A) of the Act or under
any of the provisions of the Act could not be granted on equitable grounds.
SUBMISSIONS :
The learned counsel appearing on behalf of the Appellant submitted that
having regard to the fact that the appeal preferred by the Respondents
herein was confined to the quantum of compensation and as they did not
question the order of the High Court dated 9.9.1985 passed in C.W.P. 510 of
1985, the impugned judgment cannot be sustained.
The learned counsel would contend that in any view of the matter the
decision of this Court in Dharam Das, (supra) could not have been relied
upon as the principles of res judicata would be attracted to the fact of
the present case and furthermore in view of the fact that the said order
has been acted upon.
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The learned counsel appearing on behalf of the Respondent, however,
supported the judgment and submitted that no interest can be granted on the
date of possession. Reliance in this behalf has been placed on R.L. Jain
(D) By LRs. v. DDA and Ors., [2004] 4 SCC 79.
FINDINGS :
It is not in dispute that the High Court issued a writ of mandamus. It is
also not in dispute that the direction of the High Court was acted upon.
The principle of res judicata, as is well-known, would apply in different
proceedings arising out of the same course of action but would also apply
in different stages of the same proceedings. As the judgment and order
passed in C.W.P. No. 510 of 1985 attained finality, we are of the opinion
that the Respondents herein could not have raised any contention contrary
thereto or inconsistent therewith in any subsequent proceedings. In fact
the Land Acquisition Officer while passing the award on 31.1.1991 took into
consideration the said direction and awarded 12% additional compensation at
the market value. The said order of the Land Acquisition Officer never came
to be questioned and, thus, attained finality.
Section 18 of the Act provides that any person who has not accepted the
award may file an application for referring the dispute for determination
of the court inter alia as regard the amount of compensation.
The State could have filed such an application under Section 18. It did not
choose to do so. Only the Appellant herein took recourse to the said
provision culminating in passing of the impugned judgment of the High
Court.
Thus, the award of the Land Acquisition Officer directing payment of
additional interest has also attained finality.
In the Reference Court or for that matter the High Court exercising its
appellate jurisdiction under Section 54 of the Act could not have dealt
with the said question. The principle of res judicata is species of the
principle of estoppel. When a proceeding based on a particular cause of
action has attained finality, the principle of res judicata shall fully
apply.
Reference in this regard may be made to Wade and Forsyth on Administrative
Law, 9th Ed., pg. 243, wherein it is stated:
"One special variety of estoppel is res judicata. This results from the
rule which prevents the parties to a judicial determination from litigating
the same question over again even though the determination is demonstrably
wrong. Except in proceedings by way of appeal, the parties bound by the
judgment are estopped from questioning it. As between one another they may
neither pursue the same cause of action again, nor may they again litigate
any issue which was an essential element in the decision. These two aspects
are sometimes distinguished as ‘cause of action estoppel’ and ‘issue
estoppel.’
In Hope Plantations Ltd. v. Taluk Land Board, Peermade and Anr., [1999] 5
SCC 590, this Court observed :
"Law on res judicata and estoppel is well understood in India and there are
ample authoritative pronouncements by various courts on these subjects. As
noted above, the plea of res judicata, though technical, is based on public
policy in order to put an end to litigation. It is, however, different if
an issue which had been decided in an earlier litigation again arises for
determination between the same parties in a suit based on a fresh cause of
action or where there is continuous cause of action. The parties then may
not be bound by the determination made earlier if in the meanwhile, law has
changed or has been interpreted differently by a higher forum..."
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In ‘The Doctrine of Res Judicata’ 2nd Edition by George Spencer Bower and
Turner, it is stated :
"A judicial decision is deemed final, when it leaves nothing to be
judicially determined or ascertained thereafter, in order to render it
effective and capable of execution, and is absolute, complete, and certain,
and when it is not lawfully subject to subsequent rescission, review, or
modification by the tribunal which pronounced it...."
Reference, in this connection, may also be made to Ram Chandra Singh v.
Savitri Devi and Ors., JT (2005) 11 SC 439.
Yet recently in Swamy Atmananda and Ors. v. Sri Ramakrishna Tapovanam and
Ors., JT (2005) 4 SC 472 in which one of us was a party, this Court
observed:
"The object and purport of principle of res judicata as contained in
Section 11 of the Code of Civil Procedure is to uphold the rule of
conclusiveness of judgment, as to the points decided earlier of fact, or of
law, or of fact and law, in every subsequent suit between the same parties.
Once the matter which was the subject-matter of lis stood determined by a
competent court, no party thereafter can be permitted to reopen it in a
subsequent litigation. Such a rule was brought into the statute book with a
view to bring the litigation to an end so that the other side may not be
put to harassment.
The principle of res judicata envisages that a judgment of a court
of concurrent jurisdiction directly upon a point would create a bar
as regards a plea, between the same parties in some other matter in
another court, where the said plea seeks to raise afresh the very
point that was determined in the earlier judgment."
It was further noticed:
"In Ishwardas v. the State of Madhya Pradesh and Ors., AIR (1979) SC 551,
this Court held:
"...In order to sustain the plea of res judicata it is not necessary that
all the parties to the two litigations must be common. All that is
necessary is that the issue should be between the same parties or between
parties under whom they or any of them claim..."
Yet again in Arnold v. National Westminster Bank Plc., [1991] 3 ALL ER 41,
the House of Lords noticed the distinction between cause of action estoppel
and issue estoppel. Cause of action estoppel arises where the cause of
action in the later proceedings is identical to that in the earlier
proceedings, the latter having been between the same parties or their
privies and having involved the same subject-matter. In such a case, the
bar is absolute in relation to all points decided unless fraud or collusion
is alleged, such as to justify setting aside the earlier judgment. The
discovery of new factual matter which could not have been found out by
reasonable diligence for use in the earlier proceedings does not, according
to the law of England, permit the latter to be reopened. Issue estoppel may
arise where a particular issue forming a necessary ingredient in a cause of
action has been litigated and decided and in subsequent proceedings between
the same parties involving a different cause of action to which the same
issue is relevant, one of the parties seeks to reopen that issue. Here also
bar is complete to relitigation but its operation can be thwarted under
certain circumstances. The House then finally observed: but there is room
for the view that the underlying principles upon which estoppel is based,
public policy and justice have greater force in cause of action estoppel,
the subject-matter of the two proceedings being identical, than they do in
issue estoppel, where the subject-matter is different. Once it is accepted
that different considerations apply to issue estoppel, it is hard to
perceive any logical distinction between a point which was previously
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raised and decided and one which might have been but was not. Given that
the further material which would have put an entirely different complexion
on the point was at the earlier stage unknown to the party and could not by
reasonable diligence have been discovered by him, it is hard to see why
there should be a different result according to whether he decided not to
take the point, thinking it hopeless, or argue it faintly without any real
hope of success.
In Gulabchand Chhotalal Parikh v. State of Gujarat, AIR (1965) SC 1153 the
Constitution Bench held that the principle of res judicata is also
applicable to subsequent suits where the same issues between the same
parties had been decided in an earlier proceeding under Article 226 of the
Constitution.
It is trite that the principle of res judicata is also applicable to the
writ proceedings. [See Himachal Pradesh Road Transport Corporation v.
Balwant Singh, [1993] Supp 1 SCC 552].
In Bhanu Kumar Jain v. Archana Kumar and Anr., [2005] 1 SCC 787, it was
held:
"It is now well-settled that principles of res judicata applies in
different stages of the same proceedings. [See Satyadhyan Ghosal and Ors.
v. Smt. Deorajin Debi and Anr., AIR (1960) SC 941 and Prahlad Singh v. Col.
Sukhdev Singh, [1987] 1 SCC 727].
In Y.B. Patil (supra) it was held:
"4... It is well settled that principles of res judicata can be invoked not
only in separate subsequent proceedings, they also get attracted in
subsequent stage of the same proceedings. Once an order made in the course
of a proceeding becomes final, it would be binding at the subsequent state
of that proceeding..."
It was further observed:
"In a case of this nature, however, the doctrine of ‘issue estoppel’ as
also ‘cause of action estoppel’ may arise. In Thoday (supra) Lord Diplock
held :
"...cause of action estoppel" is that which prevents a party to an action
from asserting or denying, as against the other party, the existence of a
particular cause of action, the non-existence or existence of which has
been determined by a court of competent jurisdiction in previous litigation
between the same parties. If the cause of action was determined to exist,
i.e., judgment was given on it, it is said to be merged in the
judgment....If it was determined not to exist, the unsuccessful plaintiff
can no longer assert that it does; he is estopped per rem judicatam."
The said dicta was followed in Barber v. Staffordshire Country Council,
[1996] 2 All ER 748. A cause of action estoppel arises where in two
different proceedings identical issues are raised, in which event, the
latter proceedings between the same parties shall be dealt with similarly
as was done in the previous proceedings. In such an event the bar is
absolute in relation to all points decided save and except allegation of
fraud and collusion. [See C. (a minor) v. Hackney London Borough Council,
[1996] 1 All ER 973].
[See ‘The Doctrine of Res judicata’, 2nd Edn. by Spencer Bower and Turner
p. 149]
In this view of the matter, the High Court, in our opinion, had no
jurisdiction to go into the aforementioned question.
Furthermore, a writ of mandamus is required to be obeyed unless a judgment
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is overruled or a legislation by way of validating statute is brought into
force.
In Madan Mohan Pathak and Anr v. Union of India and Ors., [1978] 2 SCC 50 :
AIR (1978) SC 803], the Constitution Bench observed:
"Here, the judgment given by the Calcutta High Court, which is relied upon
by the petitioners, is not a mere declaratory judgment holding an impost or
tax to be invalid, so that a validation statute can remove the defect
pointed out by the judgment amending the law with retrospective effect and
validate such impost or tax. But it is a judgment giving effect to the
right of the petitioners to annual cash bonus under the Settlement by
issuing a writ of mandamus directing the Life Insurance Corporation to pay
the amount of such bonus. If by reason of retrospective alteration of the
factual or legal situation, the judgment is rendered erroneous, the remedy
may be by way of appeal or review, but so long as the judgment stands, it
cannot be disregarded or ignored and it must be obeyed by the Life
Insurance Corporation. We are, therefore, of the view that, in any event,
irrespective of whether the impugned Act is constitutionally valid or not,
the Life Insurance Corporation is bound to obey the writ of mandamus issued
by the Calcutta High Court and to pay annual cash bonus for the year April
1, 1975 to March 31, 1976 to Class III and Class IV employees."
In any event, the directions issued by the court stood complied with.
Having regard to Section 18 of the Act or otherwise the wheel cannot be
turned back.
We must also note that the question raised by the learned Judges of the
High Court was not raised by the Respondents although having regard to the
decision of this Court in Dharam Das (supra) it was available.
The High Court, in our opinion, although has a wide power in terms of
Section 107 of the Code of Civil Procedure but it could not have gone
outside the pleadings and make out a new case.
In Siddu Venkappa Devadiga v. Smt. Rangu S. Devadiga and Ors., [1977] 3 SCC
532, it was held:
"8...As has been stated, the defendant traversed that claim in his written
statement and pleaded that the business always belonged to him as owner.
There was thus no plea that the business was "benami" for Shivanna. We also
find that the parties did not join issue on the question that the business
was "benami". On the other hand, the point at issue was whether Shivanna
was the owner of the business and the tenancy rights of the premises where
it was being carried on. It is well-settled, having been laid down by this
Court in Trojan and Co. Ltd. v. RM. N.N. Nagappa Chettiar and Raruha Singh
v. Achal Singh that the decision of a case cannot be based on grounds
outside the plea of the parties, and that it is the case pleaded which has
to be found. The High Court therefore went wrong in ignoring this basic
principle of law, and in making out an entirely new case which was not
pleaded and was not the subject-matter of the trial."
For the reasons stated above, the appeals are accepted, the impugned
judgments under appeals are set aside and that of the Reference Court are
affirmed. No costs.