Full Judgment Text
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PETITIONER:
JAIPUR DEVELOPMENT AUTHORITY
Vs.
RESPONDENT:
MAHAVIR HOUSING CO-OP. SOCIETY,JAIPUR ETC
DATE OF JUDGMENT: 18/09/1996
BENCH:
K. RAMASWAMY, FAIZAN UDDIN, G.B.PATTANAIK
ACT:
HEADNOTE:
JUDGMENT:
WITH
CIVIL APPEAL NO. 12653 OF 1996
(Arising out of SLP (C) No.14811 of 1994)
O R D E R
Leave granted.
Notification under Section 4(1) of the Rajasthan Land
Acquisition Act, 1953 was published on August 21, 1969
acquiring a large extent of 484 bighas 11 biswas of land for
Jaipur Urban Development Scheme by different notifications.
An extent of 4 acres 5 biswas (9845 sq.yds.) relates to the
acquisition in appeal arising out of SLP (C) No.14811/94. In
respect of the appeal arising out of SLP (C) No.6519/94, an
extent of 10 bighas 7 biswas was acquired. The Land
Acquisition Officer determined the compensation by his award
Dated July 16, 1981 and October 12, 1981 respectively
determining the Compensation at the rate of Rs. 5,000/- per
bigha to the respondent - Jai Ambe Co-op. Housing Society
and Rs.7,500/- per bigha to the respondent - Mahavir
Housing to-op. Society. On reference, the civil Judge
enhanced the compensation at the rate of Rs.40,000/- per
bigha. As regards the award of the Civil Judge, an appeal
was filed against the respondent - Jai Ambe Co-op. Society
Ltd. The learned single Judge in appeal No.142/92 has
confirmed the same by judgment dated May 2, 1994. As regards
the award in favour of Mahavir Housing Co-operative Society,
no appeal was filed. But in execution an objection has been
raised regarding additional amount awarded under Section
23(1-A) which was negatived. On revision, the High Court in
Revision No.1059/93 dated December 20, 1993 confirmed the
same. Thus, these appeals by special leave.
When the matter relating to Mahavir Housing Co
operative Society initially came up, notice was confined in
respect of section 23(1-A) but later when it was brought to
our notice of the fraud and collusion between the officers
entrusted with the prosecution on behalf of the appellant
and the claimants, we have indicated to the counsel that we
would go into the question of determination of the
compensation Thus these cases are heard together. It is seen
that from the evidence adduced before the reference Court in
respect of jai ambe Co-operative Housing Society except one
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claimant Mr.Garg no documentary evidence has been adduced in
support of the claimant for enhancement. Two awards under
Section 26 came to be filed in which one award relating to
the Mahavir Housing Co-operative society and another award
relating to the same notification but an amount of Rs.
24,000/-per bighas was awarded. As regards the claim in
Mahavir housing co-operative Society is concerned, they
relied upon a judgment of the High Court in which the High
Court has granted of some lands at the rate of Rs.12/-per
sq.yd. which related to the acquisition of 1994 and also a
certificate issued by Tehsildar relating to some other
village, which worked out at the rate of Rs 44,000/- per
acre and the sale deeds in support thereof. One curious fact
in both the cases that cannot be lost sight of is that the
claimants have purchased these properties after the
notification under Section 4(1) was published and a
reference came to be made at their instance to the civil
Court. Though an opportunity was given to the appellant,
for well over 11 years, no counter affidavit has been
filed. As a result, they were set ex-parte. Yet another
curious aspect that we cannot lose sight of is that the
reference Judge has merely with parrot-like t consideration
swallowed what with witnesses had stated that the market
value is Rs.50/- per sq.yd. without subjecting to any
scrutiny as per the tests laid down by this Court. It is
also to be noted that the same aspect was repeated by the
learned Judge of the High Court in to-any scrutiny as per
the tests laid down by this court. It is also to be noted be
that the same aspect was repeated by the learned judge of
the High court in jai Ambe Co-operative Housing society’s
case.
The question, therefore, is what would be the
reasonable compensation to which the claimants are capable
to get? In view of the settled legal position that the
claimants being the subsequent purchasers cannot have a
higher right than that the original owner himself had. They
cannot set up any title to the property on the basis of sale
deeds and consideration but may be entitled to the
compensation obviously getting into the shoes of the
claimant. We need not go into the question of correctness
whether or not the reference is valid in this case, though
open to doubt since that question was not raised at any
stage much less in this Court. We proceed on the premise
that the reference under Section 18 was valid.
As stated earlier, the entire process has gone on in
collusion. When we have issued notice to the appellants as
to what steps they have taken against the officers who are
responsible even for not filing the appeals or not
contesting the matter, an affidavit has been filed in which
it was stated that disciplinary action against the Land
Acquisition Officer was taken and even the counsel who
appeared for the Jaipur Development Authority was in
collusion and steps were taken by laying a complaint before
the Bar Counsel for professional misconduct. We need not
further dwell up on that fact but suffice it to state that
the acquisition proceedings have proceeded in collusion and,
therefore, they were not reflected the correct market value
as is available in this case. As seen in jai Ambe Co
operative Housing Society’s case. even their own sale deeds
under which they have purchased from one Bhagwan Singh, who
was said to be the original owner, were not even filed.
Under these circumstances. We thought over the matter as to
what would be the appropriate course to be adopted in this
case. We are of the view that instead of relegating the
matter again, we can ourselves decide the matter ON the
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basis of the evidence on record. Accordingly, we have
considered the case on merits.
It is seen that the Land Acquisition Officer has
awarded compensation at the rate of Rs.7,500/- per bigha to
the lands purchased by Mahavir Co-operative Housing Society
and Rs.5,000/- per bigha to the lands purchased by Jai Ambe
Co-operative Housing Society Ltd. Having regard to the facts
and circumstances, we are of the considered view that two
times more than what was granted by the Land Acquisition
Officer would be the just compensation in the given
circumstances of the case. Accordingly, we determine the
compensation to Jai Ambe Co-operative Housing Society Ltd.
at the rate of Rs 15 000/- per bigha and to the lands of
Mahavir Housing per Co-operative Society Rs.22,000/- per
bigha.
As regards the State of Rajasthan the Land Acquisition
(Amendment) Act, 68 of 1984 was extended w.e.f. April 30
94. But the State Legislature had amended the Act by
Amendment Act 28 of 1987 w.e.f. August 1.1987. In Umed
Industries & Land Development Co. & Ors.V. state of
Rajasthan & Ors. [(1995)2 SCC 563], a Bench of two Judges
had held that the Central Amendment Act 68 of 1984 would
apply from August 1,1987 to the acquisition in State of
Rajasthan. It is seen that in Mahavir Housing Co-operative
Society’s case, possession was delivered on May 24, 1984
after the stay was vacated by the civil Court since the
civil Court granted stay of dispossession on October 23,
1983. Therefore, the respondent-Society is not entitled to
the interest prior to May 25, 1984. Therefore, the decree as
regards payment of interest from the date of the
notification till May 24, 1984 is clearly illegal. It is
seen that since the award, if the reference Court is dated--
June 15, 1990 claimants will be entitled to interest from
25, 1984 at the rate of 6% per annum till August 1, 1987 and
thereafter 15% per annum on the enhanced compensation till
date of deposit in the Court. As regards the solatium is
concerned, they are entitled to 30% solatium on the enhanced
compensation. As regards the additional amount under Section
23 A) is concerned, the claimants are not entitled to the
additional amount since the awards name to be passed by
the reference Court on October 12, 1981 and July 16,
1981 in Mahavir Housing Co-operative Society and Jai Ambe
Co-operative Housing Society Ltd. respectively.
In Prem Nath Kapur and Anr. V. National Fertilizers
Corpn. of India Ltd. and Ors. [(1996) 2 SCC 711, considered
the entire case law by a bench of three Judges in paragraph
17 had held that the power to grant additional amount under
section 23(1-A) and enhanced interest under the proviso to
Section 28 and solatium at 30 per cent was due to amendments
brought under Act 68 of 1984. Prior thereto the court has no
power or jurisdiction to grant them. Therefore, the
additional amount, the excess rate of interest or solatium
at 30 per cent granted were without jurisdiction are a
nullity. The courts cannot correct the award or the decree
in exercise of the power under Sections 151 and 152 C.P.C.
This Court has relied upon the Constitution Bench decision
in Union of India v. Raghubir Singh [(19863 ) 3 SCR 3161.
This Court has reiterated the same principle in another
recent judgment in Baj Shakriben v. spl. L.A.O. [1996 (4)
SCALE 636]. Therefore, objection would be raised in
execution under section 47. The award of the additional
amount was one of without jurisdiction and so a nullity.
It is contended for the respondent in Mahavir Housing
Co-operative Society’s case, that since the award was
allowed to become final including grant of additional amount
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under Section 23(1-A), it is not open to the review at a
later date since it is not one of initial lack of
jurisdiction but an illegality has been committed in
awarding the additional amount. In support. thereof, learned
counsel relied upon a judgment of this Court in State of
Punjab & Ors.vs. Mohinder Singh Randhawa & Anr. [1993
supp.(1) SCC 49, paragraph 3} It is true that in a case
where the proceedings were properly conducted and the order
was allowed to become final, the matter may be construed to
be an order of illegality. When it is one of jurisdiction,
this Court has repeatedly, in plethora of precedents, had
held that the courts have no jurisdiction to award
additional amount under Section 23(1-A) since the Collector
had already passed the award under Section 11 and the
benefit of additional amount would be confined to the period
between the date of the notification under Section 4(1) and
the award under Section 11 when the proceedings were pending
before him. In this case, since we have already recorded the
finding that the award became final due to collusion by the
officers and the claimants, the principle of illegality in
the award does not apply since fraud unravels the entire
procedure and makes the award a nullity.
The appeals are accordingly allowed as indicated above,
but in the circumstances, Without costs. As regards
structures awarded by the reference Court, they stand
upheld.