Full Judgment Text
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CASE NO.:
Appeal (civil) 5101 of 1996
PETITIONER:
Ghaziabad Development Authroity
RESPONDENT:
Anoop Singh and Another
DATE OF JUDGMENT: 23/01/2003
BENCH:
K.G. Balakrishnan & P. Venkatarama Reddi
JUDGMENT:
J U D G M E N T
WITH
Civil Appeal NO. 5102 OF 1996
P. Venkatarama Reddi, J.
In these appeals by Special leave preferred against the judgment
of the Allahabad High Court in a First Appeal, two questions arise for
consideration : (1) whether the respondents land holders could claim
and get compensation under the Land Acquisition Act over and above
what they claimed in an application seeking reference to Civil Court
and (2) whether the respondents are entitled to the statutory benefits
under Sections 23 and 28 as amended by the Land Acquisition
(Amendment) Act of 1984?
An extent of two bighas and 1 biswa equivalent to 6,201 sq. yards
situated in the village of Jatwara Kalan of Ghaziabad District was
acquired under the provisions of the Land Acquisition Act, starting
with the publication of Notification under Section 4(1) on 18.8.1962.
The acquisition was for the purpose of implementation of a scheme for
planned development of Ghaziabad Municipal Area taken up by the
then Improvement Trust, Ghaziabad the appellant, being its
successor. The declaration under Section 6 was made on 27th October,
1964, possession was taken on 22.12.1964 and the award was passed by
the Land Acquisition Special Officer on 26.6.1967. The market value
was fixed by him as low as Rs. 2 per sq. yard, evaluating it as
agricultural land. Being dissatisfied with the same, an application was
filed by the claimants seeking reference under Section 18 of the Land
Acquisition Act. In that application, compensation was claimed at the
rate of Rs. 20 per sq. yard. Though the application is said to be ante
dated in collusion with the then Land Acquisition Officer, there is no
evidence to that effect. After the case was referred to the court of
District Judge at Ghaziabad, the claimants filed a petition for
amendment of the application dated 11.7.1967 seeking fixation of
market value at Rs.100 per sq. yard instead of Rs. 20. The same was
allowed. The Reference Court by its judgment dated 31.5.1984
determined the market value at the rate of Rs. 40 per sq. yard and also
awarded solatium at 15 per cent and interest at 6 per cent on the
amount of compensation from the date of taking possession till the date
of payment. Shortly thereafter, the Land Acquisition (Amendment) Act
(Act 68 of 1984) was enacted by the Parliament which, inter alia,
amended Section 25, Section 23 and Section 28. By the latter two
Sections, the rates of solatium and interest were enhanced and the
benefit of additional amount of 12 per cent was also conferred.
Section 25 was substituted so as to remove the bar against the award of
compensation in excess of what was claimed pursuant to the notice
issued under Section 9. Section 25 of the Act came into force from
24.9.1984. The amendment of two provisions viz., Sections 23 and 28
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were given limited retrospective effect as mentioned in Section 30 of the
amendment Act.
The claimants preferred an appeal in the High Court praying for
further enhancement of compensation. The appellant herein also filed
appeal questioning the enhancement of compensation by the Civil
Court. The High Court by the impugned judgment dated 05.2.1993
allowed the appeal of the claimants partly by enhancing the market
value to Rs. 85 per sq. yard, based on the judgment in a comparable
case. The High Court directed solatium to be awarded at 30 per cent,
and interest at the enhanced rates prescribed by the amended Section
28. The High Court also awarded an additional amount under Section
23 (1-A) at 12 per cent per annum on the market value determined by it
commencing from 25th April, 1962 till the date of taking possession of
the land. It may be stated that the appellant also filed an appeal
questioning enhancement by the Reference Court. The appeal filed by
the appellant was consequentially dismissed. It is against this judgment
that these two appeals are preferred by the Ghaziabad Development
Authority.
For the purpose of resolving the first question, we may refer to
Section 25, before and after its amendment. As per the original Section
25, "when the applicant had made a claim to compensation pursuant to
any notice given under Section 9, the amount awarded to him by the
Court shall not exceed the amount so claimed or be less than the
amount awarded by the Collector under Section 11 (Emphasis
supplied)". We need not refer to the other two sub-Sections. By Act 68
of 1984, Section 25 was substituted by the new Section 25 which reads as
follows:
"The amount of compensation awarded
by the Court shall not be less than the
amount awarded by the Collector under
Section 11."
Construing the new Section 25, this Court in Krishi Utpadan
Mandi Samiti Vs. Kanhaiya Lal, [(2000) 7 SCC Page 756] observed thus:
"Section 25 before its substitution by Act
68 of 1984, mandated the court not to
award compensation exceeding the
amount so claimed by the landowners and
not to be less than the amount awarded
by the Collector. This very clearly limits
awarding of compensation within the
amount claimed. On the facts of the
present case it is not in dispute that the
award itself was given on 27-12-1977 and
even proceeding pursuant to referring
order, was concluded on 28-2-1981, i.e.,
much prior to the aforesaid amending
Act. Thus, on the facts of this case, it is
unamended Section 25 to be applicable
and not the amended section. In view of
this, the peripheral limitation on the court
awarding the compensation, would
equally apply to the High Court
exercising its power as the first appellate
court."
It was then emphasized in paragraph 9 that the enhancement by
the High Court could only be to the extent the landowners claimed.
As in the above case, in the instant case too, the award was passed
by the Land Acquisition Officer and the Reference Court earlier to the
effective date of substitution of Section 25. Hence, the limitation on the
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power of the Court to award compensation as enjoined by the pre-
amended Section would be attracted. However, there is a formidable
impediment for the appellant to take shelter under the pre-existing
Section 25. On a petition filed by the claimant, the application dated
11.7.1967 wherein compensation was claimed at Rs.20 per square yard
was allowed to be amended by an order of the Reference Court passed
in the year 1983. It is to be noted that by virtue of Section 53 of the
Land Acquisition Act, the provisions of the Code of Civil Procedure
shall apply to all proceedings before the Court unless they are
inconsistent with anything contained in the Act. In the light of this
provision, the High Court rightly held that there is no bar under the
Land Acquisition Act to file a petition for amendment of the claim
application in regard to the quantum of compensation claimed as there
is no provision in the Land Acquisition Act which is inconsistent with
the power to allow amendment. The effect of allowing the amendment
is to substitute the figure of Rs.20 by Rs.100 per square yard. When
once this amendment is recognized and taken note of, it is obvious that
the bar under Section 25 does not get attracted. Whether this
amendment could have been permitted in the face of the unamended
Section 25 has not been put in issue before the High Court in specific
terms. Even in the S.L.P. we found, in vain, any ground questioning the
order allowing the amendment. No doubt, a party has right to challenge
a non appealable order in an appeal against the decree as laid down in
Rule 1A of Order 43. But, the fact remains that the legality or propriety
of the order permitting amendment was neither specifically challenged
before the High Court nor a specific ground taken that it was contrary
to Section 25. At this stage, the appellant cannot be permitted to assail
the correctness of the order permitting amendment. If that be so, the
first contention based on the pre-existing Section 25 has to be
necessarily rejected.
The second question is no longer res integra as it is concluded by
authoritative pronouncements of this Court. In Union of India versus
Raghubir Singh, [(1989) 2 SCC 754] the question arose before the
Constitution Bench whether the claimants were entitled to solatium at
30% of the market value irrespective of the date on which the
acquisition proceedings were initiated or the date on which the award
was passed. Interpreting Section 30(2) of the Land Acquisition
(Amendment) Act 68 of 1984, the Constitution Bench observed thus:
" In construing Section 30(2), it is just
as well to be clear that the award made by
the Collector referred to here is the
award made by the Collector under
Section 11 of the parent Act, and the
award made by the Court is the award
made by the Principal Civil Court of
Original Jurisdiction under Section 23 of
the parent Act on a reference made to it
by the Collector under Section 19 of the
parent Act. There can be no doubt that
the benefit of the enhanced solatium is
intended by Section 30(2) in respect of an
award made by the Collector between
April 30, 1982 and September 24, 1984.
Likewise the benefit of the enhanced
solatium is extended by Section 30(2) to
the case of an award made by the Court
between April 30, 1982 and September 24,
1984, even though it be upon reference
from an award made before April 30,
1982."
It was further clarified
"..to our mind it must necessarily
intend that the appeal to the High Court
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or the Supreme Court in which the
benefit of enhanced solatium is to be
given must be confined to an appeal
against an award of the Collector or of
the Court rendered between April 30,
1982 and September 24, 1984".
The intention behind the Section 30(2) was stressed in the
following words:
".Parliament intended that the
benefit of the enhanced solatium should
be made available, albeit to a limited
degree, even in respect of acquisition
proceedings taken before that date. It
sought to effectuate that intention by
enacting Section 30(2) in the Amendment
Act."
In the present case, both the award made by the Collector under
Section 11 as well as the award passed by the Civil Court on reference
fall within the two termini indicated in Section 30(2) as interpreted by
the Constitution Bench of this Court. The award of the Collector was on
26.6.1967 and the award made by the Reference Court was on
31.5.1984. Hence, both these dates fall within the time span specified in
Section 30(2) and reiterated by this Court. The error committed by the
Reference Court in granting solatium and interest at the rates specified
in the old Sections 23 and 28 was rightly set right by the High Court by
awarding solatium and interest at the enhanced rates. Though, in
Raghubir Singh’s case (supra), this Court was concerned with the
percentage of the solatium payable under Section 23; the same principle
would equally apply to the rate of interest payable under Section 28.
Both Section 23(2) as well as Section 28 are referred to in the same sub-
Section which was construed in Raghubir Singh’s case (supra). What
applies to solatium is equally applicable to interest. This position has not
been disputed before us and cannot be disputed in view of the legal
position declared by a three Judge Bench of this Court in 1995 (1) SCC
367.
The next aspect which needs to be considered is whether the
benefit under Section 23(1A) could be extended to the claimants. Sub-
Section (1A) of Section 23, inserted by Act 68 of 1984 and made
effective from 24.9.1984 provides for payment of an amount calculated
at the rate of 12% per annum of the market value for the period
commencing on and from the date of publication of the notification
under Section 4(1) till the date of the award of the Collector or the date
of taking possession of the land whichever is earlier. This amount is in
addition to the market value of the land acquired. The question of
applicability of Section 23(1A) to the pending proceedings came up for
consideration before another Constitution Bench in K.S. Paripoornan
Vs. State of Kerala & Ors. [(1994) 5 SCC 593]. Agarwal, J. speaking for
the majority, observed thus:
" If sub-Section (1-A) of Section 23 is
construed in the light of the provisions
contained in sub-Section (1) of Section 30
of the amending Act there is no escape
from the conclusion that Section 23(1-A),
by itself, has no application to
proceedings which had commenced prior
to the enactment of the amending Act and
the applicability of the said provision to
pending proceedings is governed
exclusively by sub-Section (1) of Section
30 of the amending Act."
In paragraph 75, the legal position was succinctly stated as
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follows:
" Merely because sub-Section (1) of
Section 30 only refers to award made by
the Collector while sub-Section (2) of
Section 30 also refers to an award made
by the Court as well as the order passed
by the High Court or the Supreme Court
in appeal against such award does not
mean that Section 23(1-A) was intended
to have application to all proceedings
which were pending before the civil Court
on the date of the commencement of the
amending Act. The difference in the
phraseology in sub-Sections (1) and (2) of
Section 30 only indicates the limited
nature of the retrospectivity that has been
given to provisions contained in Section
23(1-A) under Section 30(1) as compared
to that given to the provisions of Sections
23(2) and 28 under Section 30(2). The
limited scope of the retrospectivity that
has been conferred in respect of Section
23(1-A) under sub-Section (1) of Section
30 does not lend support to the contention
that the scope of such retrospectivity
should be enlarged by reading such
further retrospectivity into the provisions
of Section 23(1-A). For the reasons
aforementioned we are of the view that in
relation to proceedings which were
initiated prior to the date of the
commencement of the amending Act
Section 23(1-A) would be applicable only
to those cases which fall within the ambit
of clauses (a) and (b) of sub-Section (1) of
Section 30 of the amending Act.
xxx xxx xxx xxx
There is, therefore, no scope for extending
the ambit of retrospective operation of
sub-Section (1-A) of Section 23 beyond
the limits specified in Section 30(1) of the
amending Act so as to apply it to all
proceedings initiated prior to the date of
coming into force of the amending Act
which were pending before the Civil
Court on reference under Section 18 of
the principal Act irrespective of the date
on which the award was made by the
Collector. For the reasons
aforementioned we are unable to
subscribe to the view taken in Union of
India Vs. Zora Singh [(1992) 1 SCC 673]
that sub-Section (1-A) of Section 23 would
apply to all proceedings pending in the
reference Court on the date of
commencement of the amending Act
irrespective of the date on which award
was made by the Collector. In our
opinion, the provisions of Section 23(1-A)
of the principal Act and Section 30(1) of
the amending Act have been correctly
construed in Union of India Vs. Filip
Tiago [(1990) 1 SCC 277] to mean that the
obligation to pay additional amount in
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respect of proceedings initiated before the
date of commencement of the amending
Act is confined to the matters covered by
clauses (a) and (b) of sub-Section (1) of
Section 30 of the amending Act and we
endorse the said view."
In the light of this ruling, the respondents are not entitled to the
benefit of additional amount under Section 23(1-A) as the case does not
fall within the ambit of either Clause (a) or Clause (b) of sub-Section (1)
of Section 30 of the amending Act. To this extent, the judgment of the
High Court which was rendered prior to the decision in Paripoornan’s
case (supra) cannot be sustained.
In the result, the appeals are allowed to the limited extent of
denying the benefit of Section 23(1-A) to the respondents/claimants. In
other respects, the appeals stand dismissed with no order as to costs.
New Delhi,
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