Union of India Vs. Pramod Gupta (D) by LRS. & Ors  Insc 473 (7 September 2005)
Bhan & S.B. Sinha
Nos. 6827-6832/2003, 950, 2661 of 2005, CIVIL APPEAL NOS. 5566-5569 OF 2005
[arising out of SLP(C) Nos. 14383 OF 2004, 17913, 17915, 17916 OF 2005] S.B.
SINHA, J :
granted in the special leave petitions.
appeals are directed against a common judgment and order dated 5.10.2001 passed
by a Division Bench of the High Court of Delhi in R.F.A. No. 85 and 86 of 1987
under Section 54 of the Land Acquisition Act, 1894 (for short "the
Act") whereby and whereunder the amount of compensation in respect of
acquisition of land in village Masoodpur with china clay and without china clay
was fixed @ Rs. 56/- per sq. yard and Rs. 30/- per sq. yard respectively in
relation to the notification dated 24.10.1961 and Rs. 98/- per sq. yard and Rs.
72/- per sq. yard with China Clay and without China Clay respectively in
relation to the notification dated 23.01.1965.
basic fact of the matter is not in dispute. Two notifications dated 24.10.1961
and 23.01.1965 were issued for acquisition of the lands measuring 1105.04 bighas
and 3895.07 bigha respectively situated in village Masoodpur for the public
purpose of planned development of Delhi, i.e., for construction of Jawahar Lal
Nehru University. Declarations under Section 6 of the Act were issued on
6.08.1966 and 6.12.1966. Two awards being award Nos. 2040 and 2225 were made on
2.12.1967 and 8.04.1969. The Land Acquisition Collector for the purpose of
computation of the amount of compensation payable for acquisition of said land
divided the acquired lands in three categories viz. Blocks A, B & C and
awarded compensation @ Rs. 1000/- per bigha for Block A, Rs. 900/- per bigha
for Block B and Rs. 600/- per bigha for Block C in respect of the acquisition
of land under notification dated 24.10.1961 and Rs. 1580/- per bigha for Block
A, Rs. 1175/- per bigha for Block B and Rs. 600/- per bigha for Block C in
respect of the acquisition of land under notification dated 23.01.1965. The
owners of the lands being aggrieved by and dissatisfied with the said awards
filed applications seeking reference in terms of Section 18 of the Act pursuant
whereto and in furtherance whereof the Reference Court by a judgment and award
dated 28.07.1986 awarded compensation @ Rs. 18000/- per bigha for the lands
covered by Award No. 2225 and Rs. 12000/- per bigha for the lands covered by
Award No. 2040. The Reference
Court further granted
compensation @ Rs. 10,000/- per bigha for minor mineral, i.e., China Clay.
about 8.12.1986, the Appellants herein preferred appeals in terms of Section 54
of the Act being aggrieved by and dissatisfied with the said judgment and award
which were marked as R.F.A. No. 85 & 86 of 1987. The Respondents herein
upon service of notice filed cross objections seeking enhancement of
compensation both in respect of land as well as the mineral China Clay.
High Court by reason of the impugned judgment dismissed the appeals filed by
the Appellants herein holding, inter alia, that the judgments and awards
granting compensation for the lands acquired in the neighbouring villages which
were upheld by it in R.F.A. Nos. 567/1990 and 694/1990, would attract the
principle of res judicata and, thus, the appeals filed by the Appellants were
not maintainable. The High Court, however, allowed the cross-objections filed
by the Respondents herein in part.
High Court further refused to entertain an application filed by the Appellants
herein under Order XLI Rule 27 of the Code of Civil Procedure for bringing on
record inter alia a sale deed whereby and whereunder one of the Respondents
herein obtained assignment of 1/8th of the amount of compensation in the year
1980 for a sum of Rs. 30,000/- holding that the same was not relevant for
disposal of the appeals and in any event the same should have been brought on
records by the Appellants before the Reference Court.
Appellants before the High Court, inter alia, had raised a contention that as
the proceeding arising out of reference having remained stayed at the instance
of the Respondents for the period January, 1972 and May, 1980; they were not
entitled to any interest which was rejected opining that the statutory
provisions for grant of interest as contained under Sections 28 and 34 of the
Act being mandatory in nature cannot be waived.
computing the market value of the lands, the High Court proceeded on the basis
that the lowest category of residential developed plots, as in the year 1965,
should be taken to be the base therefor i.e. @ Rs. 150/- per sq. yd. and
directed deduction of 40% therefrom on the premise that some time would have
been necessary for excavating minor minerals and to make the lands fully
developed having regard to their tremendous building potential. The High Court
also directed further deduction of 20% from the wholesale price opining that Rs.
72/- per sq. yard would be a fair market price for the acquired land in the
year1965. However, as regard the lands which were the subject matter of
acquisition in terms of notification dated 24.10.1961, relying on or on the
basis of a decision of the High Court 410], further deductions @ 12% p.a. were
directed to be made therefrom working out the amount of compensation at Rs.
30/- per sq. yard for lands without China Clay and Rs. 56 per sq. yard with
by and dissatisfied with the said judgment and order, the Union of India and
the Delhi Development Authority are before us.
learned Additional Solicitor General appearing for the Appellants raised the
following contentions in support of these appeals:
The nature of the lands being 'Gairmumkin Pahad' and 'Banjar Kadim', as
described in the entries made in the revenue record of rights for the years
1907 and 1908, the Respondents were entitled to such amount of compensation
only payable to a holder of Bhumidari rights in terms of the provisions of the
Delhi Land Reforms Act and no other, wherefor Sections 5, 6, 7, 11, 22, 23 and
154 thereof were required to be read conjointly.
China Clay being a minor mineral, in terms of the provisions of the Mines and
Minerals (Regulation and Development) Act, 1957 as also the Punjab Minor
Mineral Rules, 1934, the same having vested in the Central Government; no
compensation was payable therefor.
Judgments and awards made in favour of other claimants having only evidentiary
value, the principle of res judicata was wholly inapplicable.
event as such judgments and awards were passed by courts having no jurisdiction
therefor; the principle of res judicata was not applicable.
Even if it be found that any amount of compensation was payable to the
Respondents herein, the High Court misdirected itself in passing the impugned
judgment insofar as it failed to take into consideration that the Respondents
having made a claim of Rs. 25/- per sq. yard before the Land Acquisition
Collector were estopped and precluded from claiming any higher amount in view
of Section 25 of the Land Acquisition Act, as it then stood.
view of the fact that the Respondents themselves prayed for stay of the
proceedings before the Reference Court, no interest was payable for the period
between 17th January, 1972 and 27th May, 1980.
The High Court failed to take into consideration the fact that the Respondents
themselves purchased the land at the rate of Rs. 6/- per sq. yard in the year
1960 and 1/8th share of the acquired land for a sum of Rs.36,000/- in the year
1980 and the market value of the acquired lands should have been determined
only on that basis.
In any view of the matter, as the appeal had been held to be not maintainable
by the High Court applying the principles of res judicata, the cross objections
filed by the Respondents were also not maintainable.
Salve, Mr. P.P. Rao, and Mr. Ramamurthy, learned senior counsel appearing on
behalf of the Respondents, on the other hand, would support the impugned
outset we may notice that Mr. Salve conceded that the principles of res judicata
and/ or issue estoppel were not applicable to the fact of the present case. The
learned counsel would, however, point out that the High Court in fact
entertained the appeals preferred by the Appellants as regard :
of China Clay,
of the land and
of Section 25 of the Act.
furthermore submitted :
The Land Acquisition Act being an existing statute on the date of coming into
force of the Constitution of India the right to property was a fundamental
right in terms of Article 19(1)(f) and 31 of the Constitution of India when the
notifications under Section 4 were issued and, thus all the procedural
requirements laid down therein were required to be scrupulously complied with
in fulfillment of the legislative purpose.
Section 25(2) of the Act has no application in the fact of the matter as the
High Court has arrived at a finding that 'admittedly no notice under Sections
9(3) and 10 was served on the Respondents', in which event only the bar
envisaged under Section 25(2) of the Act, would be attracted.
The Respondents having amended their Memo of Appeal as also the Reference in
terms of Order VI Rule 17 of the Code of Civil Procedure, vis- `-vis Section 53
of the Act, the High Court had the requisite jurisdiction to enhance the amount
of compensation in favour of the Respondents.
The notifications issued by the Union of India were admissible in evidence as
no other admissible evidence was available on record.
view of the fact that the Respondents are armed with the four decrees passed in
their favour by courts of competent jurisdiction, it is not open to the
Appellant to contend that Bhumidhars had no right in the minor mineral China
Clay. Distinguishing the judgment of this Court in Gaon 555], the learned
counsel would submit that the Respondents therein were not Bhumidhars and,
thus, the said decision must be held to have been rendered in the fact
situation obtaining therein. In any event, the question as regard title is not
an issue herein as the matters in relation thereto are pending consideration,
if any, before the High Court.
Mineral right contained in the land did not vest in the Government in terms of
Section 41 of the Punjab Land Revenue Act, 1887 and the said right would be
presumed to have vested in the recorded tenants in terms of sub- section (2) of
Section 42 thereof.
Punjab Minor Minerals Rules, 1934 and the Mines and Minerals (Regulation and
Development) Rules, 1957 or the Delhi Land Reforms Act, 1954 do not contain any
provision divesting the right of the proprietor in the minor minerals either
expressly or by necessary implication and in that view of the matter, the
ownership on minor minerals continued to remain vested in the landowners.
fact of the matter has been noticed at some length by a Constitution Bench in Sardar
Amarjit Singh Kalra (Dead) by Lrs. and Others etc. vs. Pramod Gupta (Smt.)
Dead) by Lrs. and Others etc. [(2003) 3 SCC 272], it may not be necessary for
us to traverse the same over again. Suffice it to notice that the Respondents
herein claimed their right, title and interest in the lands in question
measuring 4307 bighas, 17 biswas from one Gulab Sundari who was said to be the
proprietor of M/s Kesri Pottery Works having a non-occupancy tenancy right
therein. It is not in dispute that several proceedings had been initiated
before different forums by Gulab Sundari on the one hand and the Gaon Sabha of
the village and the Union of India, on the other, in respect of the right,
title and interest of the respective parties after coming into force of the
Delhi Land Reforms Act.
aforementioned Gulab Sundari had allegedly been declared Bhumidhar by the
Deputy Commissioner of Delhi.
be noticed that an intervention application has been filed on behalf of Shri Madan
Gopal Gupta and Shri Sudhir Jain contending that there exists an inter se
dispute as regard the ownership of the property in question inasmuch as the
applicants therein are proprietors/owners thereof.
to the said applicants the principal dispute between the parties is as to
whether the said Gulab Sundari had had any right, title or interest as Bhumidhar
or otherwise in the said land and the same is pending determination before the
High Court of Delhi in RFA Nos.309-310 of 1980.
stated the contention raised on behalf of the said applicants is that a lease
was granted by the proprietor in the year 1939 and the lessee in turn granted a
sub-lease in favour of M/s Kesri Pottery Works, a partnership firm, in the year
1942. The period of lease granted in favour of the lessee having expired, Gulab
Sundari ceased to have any interest in the property.
event, a lessee or a sub-lessee could not have been declared Bhumidhar in terms
of Section 7 of the Delhi Land Reforms Act as only the proprietor of the
village was entitled thereto and in that view of the matter the declaration of Bhumidhari
rights in favour of Gulab Sundari was wholly illegal and without jurisdiction.
Appellants, however, contend that Gulab Sundari or for that matter any person
other than the Central Government or the Gaon Sabha in view of the provisions
contained in the Delhi Land Reforms Act, 1954 and other statutes, as referred
to hereinbefore, did not derive any right, title and interest in the minor
minerals. In any event, right over mines and minerals in proprietors being
limited under the provisions of the Punjab Land Revenue Act, Punjab Minor
Minerals Rules, 1934 and the Mines and Minerals (Regulation and Development)
Act, 1957, they did not derive any right to exploit the area for commercial
purposes and in that view of the matter, the Reference Court and the High Court
acted illegally and without jurisdiction in computing the amount of compensation
in respect of mineral rights on the premise that if they were entitled thereto.
BEFORE THE REFERENCE
the claim applications filed before the Reference Court, it appears that there were five claimants, namely, Smt. Promod
Gupta, Shri Rajiv Gupta, Sanjay Gupta, Smt. Sumangli Gupta and Shri LR. Gupta.
in the claim petitions Shri L.R. Gupta did not put his signature.
The Reference Court in the proceedings under Section 18
of the Act framed the following issues :
Whether the petitioners are the Bhumidars of the land in dispute ?
what enhancement in the amount of compensation, if any, are the petitioners entitled
set of claimants in the reference against each award is Smt. Parmod Gupta, Sri
Ram Gupta, Mehar Chand Gupta and Babu Ram Gupta and they jointly have claimed
1/4th share in the land acquired by these awards and the other set of claimants
against each award was Surinder Gupta, who was substituted by Rattan Lall Gupta
in proceedings u/s 30/31 of the Act before Shri P.L. Singla. Now Rattan Chand
Gupta has been substituted by Rajiv Gupta, Sanjay Gupta, Parmod Gupta and Sumangli
Gupta. The first set of claimants, Sri Ram Gupta, Mehar Chand Gupta and Babu
Ram Gupta stand substituted by Rajiv Gupta, Sanjay Gupta, Shri L.R. Gupta, Smt.
Parmod Gupta and Sumangli Gupta being the members of the L.R. Gupta HUF. They
jointly have 1/8th share in the land acquired by both the awards." The
aforementioned five claimants, viz., Smt. Promod Gupta, Shri Rajiv Gupta,
Sanjay Gupta, Smt. Sumangli Gupta and Shri LR. Gupta have also been arrayed as
Respondents in the appeals filed before the High Court by the appellants
principle of res judicata has been applied by the High Court in relation to two
issues, viz., determination of market value and title of the Respondents in
have noticed hereinbefore that Shri Salve conceded that the High Court has
committed an error in applying the principle of res judicata.
regard to the said concession, although it may not be necessary for us to delve
deep into the said question but in view of the order proposed to be passed by
us, we think it fit and proper to deal briefly therewith.
perusal of the judgments and awards passed by the Reference Court would
indicate that the amount of compensation was fixed on the basis of some
judgments passed by the High Courts in matters which were said to be involving
OF MARKET VALUE:
determining the amount of compensation payable in respect of the lands acquired
by the State, indisputably the market value therefor has to be ascertained.
There exist different modes therefor.
best method, as is well-known, would be the amount which a willing purchaser
would pay to the owner of the land. In absence of any direct evidence, the
court, however, may take recourse to various other known methods. Evidences
admissible therefor inter alia would be judgments and awards passed in respect of
acquisitions of lands made in the same village and / or neighbouring villages.
Such a judgment and award in absence of any other evidence like deed of sale,
report of expert and other relevant evidence would have only evidentiary value.
the contention that as the Union of India was a party to the said awards would
not by itself be a ground to invoke the principles of res judicata and/ or estoppel.
Despite such awards it may be open to the Union of India to question the
entitlement of the claimants Respondents to the amount of compensation and/ or
the statutory limitations in respect thereof.
would also be open to it to raise other contentions relying on or on the basis
of other materials brought on the records. It was also open to the Appellant to
contend that the lands under acquisition are not similar to the lands in
respect whereof judgments have been delivered. The area of the land, the nature
thereof, advantages and disadvantages occurring therein amongst others would be
relevant factors for determining the actual market value of the property
although such judgments/ awards, if duly brought on records, as stated
hereinbefore, would be admissible in evidence.
if the Union of India had not preferred any appeal against the said judgment
and award; it would not be estopped and precluded from raising the said
question in a different proceeding as in a given case it is permissible in law
to do the same keeping in view larger public interest.
Government of West Bengal vs. Tarun K. Roy [(2004) 1 SCC 347] repelling the
contention that the State is estopped from maintaining an appeal while from a
similar matter which has been implemented no appeal was filed, it was observed
In the aforementioned situation, the Division Bench of the Calcutta High Court
manifestly erred in refusing to consider the contentions of the appellants on
their own merit, particularly, when the question as regards difference in the
grant of scale of pay on the ground of different educational qualification stands
concluded by a judgment of this Court in Debdas Kumar1. If the judgment of Debdas
Kumar is to be followed, a finding of fact was required to be arrived at that
they are similarly situated to the case of Debdas Kumar which in turn would
mean that they are also holders of diploma in Engineering. They admittedly
being not, the contention of the appellants could not be rejected. Non-filing
of an appeal, in any event, would not be a ground for refusing to consider a
matter on its own merits. (See State of Maharashtra v. Digambar.)
State of Bihar v. Ramdeo Yadav wherein this Court noticed Debdas Kumar by
holding: (SCC p. 494, para 4) "4. Shri B.B. Singh, the learned counsel for
the appellants, contended that though an appeal against the earlier order of
the High Court has not been filed, since larger public interest is involved in
the interpretation given by the High Court following its earlier judgment, the
matter requires consideration by this Court. We find force in this contention.
In the similar circumstances, this Court in State of Maharashtra v. Digambar
and in State of W.B. v. Debdas Kumar had held that though an appeal was not
filed against an earlier order, when public interest is involved in
interpretation of law, the Court is entitled to go into the
question."" The principle of res judicata would apply only when the lis
was inter- parties and had attained finality in respect of the issues involved.
The said principle will, however, have no application inter alia in a case
where the judgment and/ or order had been passed by a court having no
jurisdiction therefor and / or in a case involving pure question of law. It
will also have no application in a case where the judgment is not a speaking
courts while determining the amount of compensation for acquisition of land
would be bound to take into consideration only the materials brought on
records. However, factors which would be relevant for determining the amount of
compensation would vary from case to case and no hard and fast rule can be laid
down therefor. The principle of res judicata will, therefore, have no
application in the fact of the present matter.
OVER MINES & MINERALS:
be true that the principles of res judicata may be applicable in respect of the
question of title but even for the said purpose it was obligatory on the part
of the High Court to refer to the previous judgments whereupon reliance had
been placed by the Respondents for the purpose of arriving at a decision as to
whether they have been rendered by a competent court or not.
question as to whether a civil court will have jurisdiction in respect of
declaration and / or cancellation of bhumidhari right was not adverted to by
the High Court. We may notice that this Court in Nathi (supra) held that in
terms of the provisions of the Delhi Land Reforms Act, 1954 a person can either
be a Bhumidhar or Asami and there is no other class of proprietors or
tenure-holder after coming into force of the said Act. It was further opined:
Therefore, the legal position is absolutely clear that a person can be either a
bhumidhar or an asami of the agricultural land in a village. He can also be an
owner of the property of the type which is enumerated in Section 8 of the Act,
like private wells, tanks, groves, abadis, trees and buildings. Except for
these, all other kinds of lands and property would vest in the Gaon Sabha. The
proprietors and the concept of proprietors of land stands totally abolished
with the enforcement of the Act. The respondents neither claimed to be bhumidhar
nor asami of the land which has been acquired. The acquired land does not come
within the purview of Section 8 of the Act. In such circumstances the only
inference possible is that the land stood vested with the Gaon Sabha on the
date of the commencement of the Act and it was the Gaon Sabha which was the
owner thereof and was entitled to receive the entire amount of
compensation." From the impugned judgment of the High Court, it does not
appear that it had taken into consideration the relevant factors, viz.,
of the provisions of the Delhi Land Reforms Act vis-a-vis the nature of the
land and/ or the source of title; and
statutory effect as regard the claim of the Respondent on the sub-soil mineral
right in the light of several existing statutes.
if the proprietors and consequently the bhumidhars were entitled to mineral
right, independently, the statutory interdicts limit the user of such mineral.
The question would have relevance not only for the purpose of determination of
the claim of ownership over such land and/ or mineral embedded therein but also
the nature and extent thereof. Ordinarily, the zamindar of the tauzi is the
owner of the sub-soil mineral. Such zamindars must be holders of revenue paying
estate. If the zamindars had granted a lease, the extent of right of lessee
would depend upon the terms of the lease and in absence of an express grant the
lessee would have no right to work quarries or mines other than those which
were open when he entered.
F.F. Christian vs. Tekaitni Narbada Koeri and Others [(1914) CLJ (20) 527]
where a maintenance grant was made for life, it was held that thereby no right
of mines and minerals had been conveyed, observing :
it is contended, shows that the grantor Moharaj Singh was aware of the
existence of mica mines when he made the maintenance grant in 1894. Let such
knowledge in his part be assumed for purposes of argument; the fact is really
inconclusive. The view may well be maintained that if he intended to vest all
the subsoil rights on the grantee, he would have explicitly stated so, as he
did in the mortgage instrument of the 2nd December, 1889" In Bageswari Charan
Singh vs. Kumar Kamakhya Narain Singh [(1931) ILR (X) PC 296 : AIR 1931 PC 30],
referring to the statutory presumption as between zamindar and jagirdar, it was
held that the former must be regarded as the owner of the minerals. It was
further observed :
from the statutory presumption arising in this case, there is a general presumption
that the land in a zamindari is the property of the zamindar, and held under
him" Yet again in Ras Behari Mandal and Others vs. Raja Jagadish Chandra Deo
Dhaubal Deb, [1936 IC (160) 114], the Patna High Court reiterated the
presumption that the lessor retains all rights in mines and quarries. It also
noticed the decision of House of Lords in Great Western Railway Co. vs. Carpalla
United China Clay Co. Ltd. [(1910) AC 83], wherein a grant reserving minerals
was held to exclude a deposit of China clay despite the fact that the same was
found near the surface.
Mohan Nath Sah Deo vs. Pratap Udai Nath Sah Deo and Others [AIR 1931 PC 302],
the Privy Council affirmed its earlier decision in Gobinda Narayan Singh vs.
Sham Lal Singh [AIR 1931 PC 89] stating:
long series of recent decision by the Board has established that if a claimant
to subsoil rights holds under the zamindar or by a grant emanating from him,
even though his powers may be permanent, heritable and transferable, he must
still prove the express inclusion of the subsoil rights." [See also H.V.
Low and Company Ltd. vs. Raja Bahadur Jyoti Prosad Singh Deo AIR 1931 PC 299; Onkarmal
Agarwalla and Others vs. Bireswar Hazra and others, AIR 1959 Calcutta 195; and Bageswari
Charan Singh (supra)] Yet again in Bejoy Singh Dudhoria vs. Surendra Narayan
Singh [1929 ILR (56) Cal. 1], it was held that in absence of any reference to
minerals or to the subsoil; or to the right to excavate for making bricks or to
anything in the deed of lease, even the patni tenure-holder did not derive any
right in the mines and minerals.
provisions of Punjab Land Revenue Act govern the rights of the tenants. Before
us, the original deeds under which the right of proprietorship, if any, said to
be created in favour of Smt. Gulab Sundari, in terms whereof she became
occupancy tenant as also the deeds of sale/ grants made in favour of her
predecessors have not been produced, in absence whereof it will not be prudent
for this Court to venture to arrive at a conclusion as regard the nature of the
right of the proprietor or the lessee as the case may be. Even the judgments
and decrees passed by the civil courts and the revenue courts are not before us
and, thus, this Court may only briefly indicate the legal position, the
application whereof would depend on a finding of a court of competent
jurisdiction as regard the nature and extent of right.
41, 42(2), 60-C of the Punjab Land Revenue Act, 1887 read as under:
Right of the Government in mines and minerals. All mines of metal and coal,
and all earth-oil and gold washings shall be deemed to be the property of the
Government for the purpose of the State and the State Government shall have all
powers necessary for the proper enjoyment of the Government's rights thereto.
Presumption as to ownership of forests, quarries and waste land
When in any record-of-rights completed before the eighteenth day of November,
1871, it is not expressly provided that any forest, quarry, unclaimed,
unoccupied, deserted or waste-land, spontaneous produce or other accessory interest
in land belong to the landowners, it shall be presumed to belong to the
When in any record-of-rights completed after that date it is not expressly
provided that any forest or quarry or any such land or interest belongs to the
Government, it shall be presumed to belong to the landowners.
The presumption created by sub-section (1) may be rebutted by showing:-
the records or report made by the assessing officer at the time of assessment;
the record or report, is silent, then from a comparison between the assessment
of villages in which there existed, and the assessment of villages of similar
character in which there did not exist, any forest or quarry, or any such land
the forest, quarry, land or interest was taken into account in the assessment
of the land-revenue.
Until the presumption is so rebutted, the forest, quarry, land or interest
shall be held to belong to the Government.
Power to issue instructions.
State Government or the Financial Commissioner with the approval of the State
Government may, for the guidance of Revenue-officers, from time to time issue
executive instructions relating to all matters to which the provisions of this
chapter apply, provided that such instructions shall be consistent with the
provisions of this Act and the rules made thereunder." Section 60-C of the
Punjab Land Revenue Act, 1887 empowers the State to issue general instructions
which are binding on the tenure-holders.
to or in furtherance of the said power, the State of Punjab made rules known as
Punjab Minor Minerals Rules, 1934, Rules 3, 5 and 7 whereof read, thus:
(1) No person shall quarry any minerals belonging to Government from land,
whether privately owned or otherwise included within any revenue estate, or
situated in land the property of Government not included within the limits of a
revenue estate, unless he has first obtained a permit in the manner hereinafter
person, not being a permit-holder, who is found in possession of any recently
quarried mineral, shall be deemed to have quarried the said mineral without a
permit, unless he furnishes proof to the satisfaction of the Collector, that
the said mineral was quarried by a permit- holder.
person being an owner or occupancy tenant of agricultural land desiring to
quarry in the revenue estate within which his land is situated for use within
such revenue estate any mineral (a) for his own personal, agricultural or
domestic purposes, and not for alienation by sale or otherwise, nor for
contract work; or (b) for construction, otherwise than by contract, a hospital,
school, dharamsala, well, piao, tank, mosque, temple, or any other work of
public utility or religious worship, within the said estate, shall make an
application in form M. 1 to the Collector either directly or through the patwari
of revenue estate.
land from which the mineral is to be quarried is not in the applicant's
possession the application shall also be signed by the owner or occupancy
tenant thereof as a token of consent.
A person who desires to quarry minerals in circumstances other than those
related in paragraph 5 shall make his application to the Collector.
Every application by a contractor for quarrying minerals on behalf of a
Government Department or a local body shall be made to the Collector in form M.
2, through the Executive Engineer or other official of corresponding authority
concerned, or through the Secretary of the local body concerned, as the case
Application in cases other than those provided for in the rule 5 and in
sub-rule (ii) of the rule, shall be made in form M. 3." Validity of the
said Rules has not been questioned by the Respondents in an appropriate
is not applicable in the instant case. But in terms of Rule 5 even if a mineral
is found in the agricultural land, the same could be extracted only for
personal, agricultural or domestic purposes and not for any commercial one
including carrying out any contract. Even for the permissible purposes, an
application for grant of permit was necessary.
that the Bhumidhars were entitled to the mineral right in the lands in
question, minor minerals could have been extracted therefrom only for their
personal use and that too after obtaining a requisite permit in terms of the
of India Act came into force in the year 1935. Entry 36 of List I of the
Seventh Schedule contained in the Government of India Act empowered the
Governor General in Council to make laws relating to regulation of mine and
mineral development. Pursuant to or in furtherance of the said power, Mines and
Minerals (Development and Regulation) Act, 1948 was enacted; in terms of
Section 4 whereof mining operation could be carried out only under a licence or
lease to be granted in the manner prescribed under the rules framed thereunder.
Parliament thereafter enacted Mines and Minerals (Development and Regulation)
Act, 1957; section 4 whereof reads as under:
Prospecting or mining operations to be under licence or lease.—
person shall undertake any reconnaissance, prospecting or mining operations in
any area, except under and in accordance with the terms and conditions of a
reconnaissance permit or of a prospecting licence or, as the case may be, of a
mining lease, granted under this Act and the rules made thereunder:
that nothing in this sub-section shall affect any prospecting or mining operations
undertaken in any area in accordance with the terms and conditions of a
prospecting licence or mining lease granted before the commencement of this Act
which is in force at such commencement:
further that nothing in this sub-section shall apply to any prospecting
operations undertaken by the Geological Survey of India, the Indian Bureau of
Mines, the Atomic Minerals Directorate for Exploration and Research of the
Department of Atomic Energy of the Central Government, the Directorates of Mining
and Geology of any State Government (by whatever name called), and the Mineral
Exploration Corporation Limited, a Government company within the meaning of
section 617 of the Companies Act, 1956:
also that nothing in this sub-section shall apply to any mining lease (whether
called mining lease, mining concession or by any other name) in force
immediately before the commencement of this Act in the Union Territory of Goa,
Daman and Diu.
No person shall transport or store or cause to be transported or stored any
mineral otherwise than in accordance with the provisions of this Act and the
rules made thereunder.
reconnaissance permit, prospecting licence or mining lease shall be granted
otherwise than in accordance with the provisions of this Act and the rules made
Any State Government may, after prior consultation with the Central Government
and in accordance with the rules made under section 18, undertake
reconnaissance, prospecting or mining operations with respect to any mineral
specified in the First Schedule in any area within that State which is not
already held under any reconnaissance permit, prospecting licence or mining
lease" In terms of Section 14 of the said Act, Sections 5 to 13 will have
no application in relation to minor minerals. Section 15 of the said Act
empowers the respective State Governments to make rules in respect of minor
minerals. Sub-section (2) of Section 15 provides that so long as no rules are
framed by the State in terms of sub-section (1) of Section 15 the old rules
would continue to govern the field. Pursuant to or in furtherance of the said
power, the State of Punjab framed rules known as Punjab Minor Mineral Rules,
1964 in terms whereof the Punjab Minor Mineral Rules, 1934 were repealed. In
terms of Rule 2 of the 1934 Rules China Clay was declared to be a minor
mineral. The State of Delhi, however, made rules only in the year 1969. Prior
thereto, presumably the rules made by the State of Punjab were governing the
attention of the High Court and the Reference Court was not drawn to the
aforementioned statutes and the statutory rules. The application of the said
rules will go a long way in not only determining the question of res judicata
but also the question as regard to the limited nature of right the Respondents
under the aforementioned statutes, if any.
on the said issues would be relevant for the purpose of computing the amount of
in respect of an immovable property would mean a bundle of rights. Only a
proprietor of a surface land will have the sub-soil right. But such rights may
also have certain limitations. Tenure holder or sub-tenure holder and / or an
agricultural tenant created for carrying out agricultural operation per se would
not become the owner of the sub-soil right. The right granted in favour of such
sub-tenure holder, tenure holder or the agricultural tenant would, thus, depend
upon the concerned statute and/ or the relevant covenants contained in the
three-Judge Bench of this Court in the State of Punjab vs. M/s Vishkarma and
Co. etc. [JT 1993 (1) SC 448], construing the provisions of Sections 31, 41 and
42 of the Punjab Land Revenue Act, 1887, held :
with which we are concerned in the present appeals, is a minor mineral was not
disputed, although it is not any of the mines or minerals covered by Section 41
of the Revenue Act as would make it become the property of the State. If the
owner of such brick-earth is the State of Punjab, liability to pay royalty for removal of such brick-earth and to obtain
permit or licence for such removal, necessarily arises because of the operation
of the Act and the Rules. But the courts below have concurrently found that the
brick-earth concerned in the suits out of which the present appeals have arisen
was in lands which formed the estates of the private owners and as such the
same belonged to such landowners. It is so found on their reading of the
entries in Wajib-ul-arz pertaining to the concerned estates. That Wajib-ul-arz
is a document included in the record-of-rights cannot be disputed since it
contains the statements on matters envisaged under clauses (a) and (b) of
sub-section (2) of Section 31 of the Act. According to the courts below Wajib-ul-arz
document being record-of-rights of estates completed after November 18, 1871,
and there being nothing expressly stated in them that the forest or quarry or
land or interest in the estates belong to the Government, the lands in such
estates including brick- earth in them shall be presumed to belong to the
concerned landowners as is declared in sub-section (2) of Section 42 of the
Revenue Act." From the aforementioned passage it is evident that the
brick-earth was the subject matter of transfer in favour of the land owners
which was apparent from the entries in Wazib-ul-arz pertaining to the concerned
entry in the Wazib-ul-arz in the instant case reads as under:
Section Detail Subject 10 Ownership of the Nazul land or Forest or without
ownership or unpossessed or untitled or non-residential land or Mines or Ruins
or old buildings or self-fertile and no other land which give natural fertility
is situated within the revenue estate village Masood Pur.
the 29 bighas land of road not any other land of Forest, Mines, buildings, Nazal,
self- fertile, Marbal, metals, stones, coal, sand is under the ownership of the
Government. But within the boundires of this village mountain is stated to be
Government wants to take the stone then the Govt. will not liable to pay the
price of that stone. If any mine is found then the same will be property of the
evidentiary value of wazib-ul-arz is no longer res integra in view of the
decisions cited at the bar including Prem Chand vs. State of Haryana [AIR 1972
(P&H) 50 (DB)]; Man Chand vs. State of Haryana [74 (1972) PLR 508], Chunni Lal
vs. State of Haryana [73 (1971) PLR 159], Gram Panchayat vs. State of Himachal
Pradesh [AIR 1973 HP 7].
said decisions lay down the principle that in absence of any entry made in favour
of the Government, with respect to mines and minerals a presumption shall be
drawn that the same belongs to the landowner being a tenure-holder.
have noticed hereinbefore a large number of decisions of the Judicial Committee
and different High Courts which lay down the principle that only the landowners
have subsoil rights but so far as the sub- tenureholders and others are
concerned no such presumption shall be raised unless it is proved from the
express covenants made in the grant and/or the deed of assignment or sale that
such right has expressly been conveyed.
42(2) of the Punjab Land Revenue Act merely states that in absence of any entry
made in the record-of-rights after 18.11.1971, it shall be presumed that the
right in any forests, quarries or any such land or interest would be in the
landowners. 'Wazib-ul-arz' also indicates the custom prevailing in the village.
The entry in the Wazib-ul-arz is categorical about the fact that the Government
is not the owner of any forest, mines, buildings nazul, self-fertile, marble,
metals, stones, coal or sand. It, however, categorically states that there are
mountains in the village and the Government can extract stones without paying
any price therefor. It further categorically states that if any mine (in
future) is found, the same would be the property of the Government. The entry
ex facie does not show that china clay as a minor mineral was available in the
land in question. Existence of the said mineral having not been expressly
recorded in the record of rights, no presumption can be raised that the grantor
had an intention to pass on title of the subsoil in relation to china clay in favour
of the grantee. It is one thing to say that the Government or the State did not
have any right over the minor minerals per se but it is another thing to say
that the Government did not have any right in respect of the minerals or metals
which had been mentioned therein but in the event a new mine is found, the same
would vest in the Government. The presumption envisaged under sub-section (2)
of Section 42, therefore, in our considered opinion may not be raised in favour
of the grantee as it is not shown that mines of china clay were existing at the
relevant time. The expression 'Mine' having regard to its definition contained
in Section 2(j) of the Mines Act, 1952 is of wide import. In the village in
question there may exist one mine for extracting one mineral at one point of
time but other mines containing either the same or different minerals might not
be existing in other parts of the same village at the relevant time and may be
found in other part of the village at the later part of time. The expression
'mine', thus, may have to be given its natural meaning having regard to the
purpose for which such entries are made. It is true that the legislature used
two different phraseologies 'shall be presumed' and 'may be presumed' in
Section 42 of the Punjab Land Revenue Act and furthermore although provided for
the mode and manner of rebuttal of such presumption as regards right to mines
and minerals said to be vested in the Government vis-`-vis absence thereof in
relation to the lands presumed to be retained by the landowners but the same
would not mean that the words 'shall presume' would be conclusive. The meaning
of expressions 'may presume' and 'shall presume' have been explained in Section
4 of the Indian Evidence Act, 1872, from a perusal whereof it would be evident
that whenever it is directed that the court shall presume a fact it shall
regard such fact as proved unless disproved. In terms of the said provision,
thus, the expression 'shall presume' cannot be held to be synonymous with
'conclusive proof'. It is interesting to note that this Court in Raja Rajinder Chand
vs. Mst. Sukhi and Others [AIR 1957 SC 286] whereupon Mr. Rao has placed strong
reliance observed :
the statutory presumption attaching to an entry in the Wajib-ul-arz has been
properly displaced or not must depend on the facts of each case. In cases under
our consideration, we hold, for the reasons already given by us, that the
entries in the Wazib-ul-arz with regard to the right of the Raja in respect of chil
trees standing on cultivated and proprietary lands of the adna-maliks, do not
and cannot show any existing custom of the village, the right being a sovereign
right; nor do they show in unambiguous terms that the sovereign right was
surrendered or relinquished in favour of the Raja. In our view, it would be an
unwarranted stretching of the presumption to hold that the entries in the Wajib-ul-arz
make out a grant of a sovereign right in favour of the Raja: to do so would be
to hold that the Wajib-ul-arz creates a title in favour of the Raja which it
said decision, therefore, is an authority for the proposition that no title can
be claimed on the basis of an entry made in the revenue records as it is for
the grantee to show that such title has been conveyed to him by the owner
may, however, point out that in M/s Vishkarma and Co. (supra), the effect of
the provisions of the Punjab Minor Minerals Rules, 1934 or the provisions of
the Mines and Minerals (Regulation & Development) Act, 1957 did not fall
and others [2002 (1) ALT 159] the Division Bench of the Andhra Pradesh High
Court, wherein one of us was a member, while analyzing the provisions of the
A.P. (A.A.) Estates (Abolition and Conversion into Ryotwari) Act, 1948 vis-`-vis
Mines and Minerals (Regulation and Development) Act, 1957 and A.P. Minor
Mineral Concession Rules, 1966, held that the agriculturists could not have had
any right over minor mineral stating:
terms of Entry 54 of List I of the VII Schedule of the Constitution of India,
by enacting the said Act, the Parliament has taken over control over mines and
minerals. Keeping in view the declaration made in that regard under Sections 18
and 20 thereof, as envisaged in Entry 54 of List I of the VII Schedule of the
Constitution of India, the State has no legislative competence even to make any
law in this regard, far less grant any settlement except in terms of the
provisions of the said Act, for the rules framed therein." Court referring
to various decisions of this Court including Mathura Prasad [JT 2005 (2) SC
481] observed :
From the above principles laid down by this Court, it is clear that if the
earlier judgment which is sought to be made the basis of res judicata is
delivered by a court without jurisdiction or is contrary to the existing law at
the time the issue comes up for reconsideration such earlier judgment cannot be
held to be res judicata in the subsequent case unless, of course, protected by
any special enactment." Madhvani [(2004) 1 SCC 497], in which one of us
(S.B. Sinha, J.) was a member, it was observed:
of res judicata is a procedural provision. The same has no application where
there is inherent lack of jurisdiction." The question of application of
principle of res judicata, thus, is required to be considered afresh in the
light of the discussions made hereinbefore.
the views we have taken, it is axiomatic, the principles of res judicata shall
have no application in respect of the cross-objections filed by the
Respondents. In that view of the matter, the decision of this Court in Intelligence
Agency Ltd. [(2004) 3 SCC 250], relied upon by the Additional Solicitor
General, is not applicable.
PUNJAB LAND REVENUE ACT AND DELHI LAND REFORMS ACT:
lands in question indisputably were governed by the Punjab Land Revenue Act,
1887 and the Punjab Tenants (Security of Tenure) Act, 1950.
Punjab Land Revenue Act 1887 is still applicable save and except those
provisions which are inconsistent with the provisions of the Delhi Land Reforms
Act. The claim of the Respondents is stated in their counter- affidavit filed
in this Court. The Respondents claimed themselves to be occupancy tenants.
Land Revenue Act, 1887 was enacted to amend and declare the law in force in the
State of Punjab with respect to "making and maintenance of record-of-rights
in land, the assessment and collection of land-revenue and other matters
relating to land and the liabilities incident thereto". The said Act
provides for preparation of record of rights of different types of land held by
the owners or tenure holders. For our purpose the definitions of
"estate", "land-owner" and "holding" may be noticed
"estate" means any area
which a separate record-of-rights has been made; or
has been separately assessed to land revenue, or would have been so assessed if
the land- revenue had not been released, compounded for or redeemed; or
the State Government may, by general rule or special order, declare to be an
"land-owner" does not include a tenant or an assignee of land-revenue,
but does include a person to whom a holding has been transferred or an estate
or holding has been let in farm, under this Act for the recovery of an arrear
of land-revenue or a sum recoverable as such an arrear and every other person
not hereinbefore in this clause mentioned who is in possession of an estate or
any share or portion thereof, or in the enjoyment of any part of the profits of
"holding" means a share or portion of an estate held by one
land-owner or jointly by two or more land- owners;" Section 61 of the Land
Revenue Act provided for security for payment of land revenue. In terms of the
provisions thereof, the land owners need not necessarily be the owners of the
land. The term "land- owner" is a wider term and it does not include
a tenant as specifically mentioned in the definition.
was the actual status of Smt. Gulab Sundari vis-`-vis her predecessors is not
31 of the Punjab Land Revenue Act, 1887 provides for preparation of record of
rights and other documents in respect of an estate including the nature and
extent of the interest of the land owners and the conditions and liabilities
attached thereto. Section 32 provides for special provision for record of
rights in the situations specified therein. Section 41 provides that minerals
mentioned therein shall vest in the Government.
42, however, provides that when such right has not been stated to be vested in
the land owners, the same would be presumed to be belonging to the Government
although such presumption is not absolute. Sub-section (2) of Section 42,
however, states that when in any record of rights it is expressly provided that
any forest or quarry or any such land or interest does not belong to the
Government, the same shall be presumed to be belonging to the land owner.
aforementioned backdrop, the provisions of the Delhi Land Reforms Act are
required to be interpreted considered.
Delhi Land Reforms Act, 1954 was enacted to provide for modification of zamindari
system so as to create an uniform body of peasant proprietors without
intermediaries for the unification of the Punjab and Agra systems of tenancy laws in force in
the State of Delhi and to make provision for other matters connected therewith.
terms of Section 2 of the said Act, the Punjab Tenancy Act, 1887 as also the
Punjab Land Revenue Act, 1887 are repealed insofar as they are inconsistent
with the said Act, the effect whereof would be that the right of the land
owners, proprietors, zamindars or other superior landlords which were conferred
upon them under the provisions of the said two Acts would no longer exist. The
Delhi Land Reforms Act contemplates creation of a new right in two classes of
the land owners, viz., only one class of tenure holder, that is to say, Bhumidhar
and one class of sub-tenure holder, that is to say, Asami.
this case are concerned with bhumidhari rights. A bhumidhar would be a person
who is liable to pay land revenue directly to the State.
5 provides that every person belonging to any of the following classes shall be
a bhumidhar and shall have all the rights and be subject to all the liabilities
conferred or imposed upon a bhumidhar by or thereunder:
a proprietor holding sir or khudkasht land a proprietor's grove holder, an
occupancy tenant under section 5 of the Punjab Tenancy Act, 1887, paying rent
at revenue rates or a person holding land under Patta Dawami or Istamrari with
rights of transfer by sale, who are declared Bhumidhars on the commencement of
every class of tenants other than those referred to in clause (a) and
sub-tenants who are declared Bhumidhars on the commencement of this Act; or
person who, after the commencement of this Act, is admitted to land as Bhumidhar
or who acquires Bhumidhari rights under any provisions of this Act."
Section 7 provides for termination of rights of individual proprietors as
specified therein. Such rights vest in Gaon Sabha. Section 11 provides for
declaration of bhumidhari rights by the Deputy Commissioner. Such declaration
is said to have been made in case of the aforementioned Smt. Gulab Sundari but
it is not on record of the case. The effect of such declaration is also
required to be considered for the purpose of determining the questions arising
in these matters. Section 22 confers a right upon a bhumidhar in exclusive
possession of all land comprised in his respective holding so as to enable him
to use the land for any purpose connected with agriculture, horticulture or
animal husbandry which includes pisciculture and poultry farming and to make
any improvement thereupon. Section 23 provides use of holding for industrial
purposes. Section 154 provides for vesting of certain lands in Gaon Sabha.
Section 185 a hierarchy of courts has been created for the purpose of
determination of the question relating to rights and liabilities regarding such
lands in terms whereof the jurisdiction of the Civil Court is ousted for certain purposes.
of the provisions of the Delhi Land Reforms Act came up for consideration
before this Court in Nathi (supra). It opined that the Act contemplates only bhumidhari
or asami right of an agricultural land in a village subject of course to the
right conferred upon them in terms of Section 8 of the Act. It was held that Gair
mumkin pahar land is not a khudkasht land.
be true that as submitted by the learned counsel for the Respondents that in
that case the Respondent was not favoured with any declaration of the bhumidhari
right in terms of Section 11 of the Act nor the question of the effect of the
provisions thereof as regard the right of the land owner in relation to mines
and minerals was raised, but there cannot be doubt that therein the law as
regard extent of right of a Bhumidhar has been delineated.
Act maintains a silence about the right of the land owners in respect of mines
and minerals. In absence of the documents which would throw a light on the
right of Smt. Gulab Sundari, we think that it would not be proper for us to
determine the question finally and we must leave the matter at the hands of the
High Court for the said purpose. We may, however, observe that such a question
may have to be determined having regard to the provisions contained in Article
31A of the Constitution of India vis-`-vis the repeal of the Punjab Land Tenure
Act on one hand and the Delhi Land Reforms Act, on the other. It is possible to
hold that as by reason of the said provision only limited rights were conferred
upon them, all other rights stood excluded. We, however, would clarify that as
the said question has not been raised specifically before us and keeping in
view of the fact that Smt. Gulab Sundari might not have any proprietary rights
over mines and minerals, as had been claimed, having regard to the provisions
of the Punjab Tenants (Security of Tenure) Act, we would refrain ourselves from
determining the question at this stage.
may, however, notice a few decisions cited at the bar. considered the conflict
of opinion between two Full Benches of the High that the view taken by the
earlier Full Bench was correct. It was stated::
The judgment of the Full Bench on this part of the case is based entirely upon
the definition of an estate, as contained in the Punjab Land Revenue Act, set
out above. It has not stopped to consider the further question why a holding,
which is a share or a portion of an estate, as defined in the Punjab Act,
should not partake of the characteristics of an estate. Keeping in view the
background of the legislative history and the objective of the legislation, is
there any rational reason for holding that the makers of the Constitution
thought of abolishing only intermediaries in respect of an area constituting
one entire estate but not of a portion thereof? On the other hand, as indicated
above, they have used the expression "estate" in an all-inclusive
sense. They have not stopped at that; they have also added the words "or
any rights therein". The expression "rights" in relation to an
estate again has been used in a very comprehensive sense of including not only
the interests of proprietors or sub- proprietors but also of lower grade
tenants, like raiyats or under-raiyats, and then they added, by way of further
emphasizing their intention, the expression "other intermediary", thus,
clearly showing that the enumeration of intermediaries was only illustrative
and not exhaustive. If the makers of the Constitution have, thus, shown their
intention of saving all laws of agrarian reform, dealing with the rights of
intermediaries, whatever their denomination may be, in our opinion, no good
reasons have been adduced in support of the view that portions or shares in an
estate are not within the sweep of the expression "or any rights
therein". A recent decision of this Court in the case of Ram Narain Medhi
v. State of Bombay dealt with the constitutionality of the Bombay Tenancy and
Agricultural Lands (Amendment) Act, 1956, which contains similar provisions
with a view to doing away with intermediaries, and establishing direct
relationship between the State and tillers of the soil. In that case also, the
contention had been raised that the expression "estate" had reference
to only alienated lands and not to unalienated lands, and this Court was
invited to limit the meaning of the expression in the narrower sense." We
are not suggesting, as at present advised, that mineral rights or rights over
minerals can in no situation remain in the hands of the private individuals.
There may be cases where having regard to the statutory provisions, the mineral
rights may continue to remain in the hands of the private owners. But while
examining the question of computing the quantum of compensation, the Courts are
required to bear in mind the extent of such rights and in particular the
statutory provisions which prohibit carrying out mining operations without
obtaining appropriate mining lease, prospective licence or permits. The Courts
must also bear in mind that even in a case where owners are entitled to the
minerals having regard to the provisions contained in the Punjab Minor Mineral
Rules, 1934, the amount of compensation would be much less and with the
acquisition of land the right to use the minerals would come to an end.
Compensation for such minerals may not be computed on the basis of the profits earned
by a mining lessee having a valid mining lease therefor. Furthermore, a person
having a right to use mines and minerals for his personal use and not for sale
will still have to obtain an appropriate permit in terms of the statutory
provisions. It may not be out of place to notice that right to receive royalty
is a mineral right as has been held by Wanchoo, J. in Hingir Rampur Coal Co.
Ltd. vs. State of Orissa [1961 (2) SCR 537] [See also India Cement Ltd.
may be found in the mineral-bearing land. Mineral-bearing land may, thus,
contain mineral as the product of nature.
in a case it may be theoretically possible for the State to grant a mining
lease of quarry or permit, in favour of an applicant in respect of an area over
which a mineral right is also held by a private owner but in that event the
private owner would be only entitled to royalty. The legislative intent
contained in the 1957 Act envisages that even in certain cases the Central
Government or the State Government, as the case may be, in the event of their
undertaking of mining operations from the land belonging to the private owners
may have to pay royalty to them. The rate of royalty, however, will be limited
to the amount prescribed in the 1957 Act or the rules framed thereunder The
amount of compensation, therefore, in view of the statutory provisions will
depend upon several factors, as noticed hereinbefore. In any event, the profit
earned by illegal mining i.e. carrying on mining operations contrary the 1957
Act or the rules framed thereunder, would by no means be a safe criteria for
determining the amount of compensation.
have earlier noticed that one of the modes of computing the market value may be
based on a judgment or award in respect of acquisition of similar land, subject
of course to such increase or decrease thereupon as may be applicable having
regard to the accepted principles laid down therefor and as may be found
notice some precedents in this behalf:
Delhi Development Authority vs. Bali Ram Sharma and Others [(2004) 6 SCC 533],
5% increase in the market value was granted having regard to the fact that the
notification in question was issued about five years after the notification
involved in the earlier judgment.
Land Acquisition Officer, Kammarapally Village, Nizamabad District, A.P. vs. Nookala
Rajamallu and Others [(2003) 12 SCC 334], it was observed :
large area is the subject-matter of acquisition, rate at which small plots are
sold cannot be said to be a safe criterion" It was further observed:
determining the market value of the land acquired it has to be correctly
determined and paid so that there is neither unjust enrichment on the part of
the acquirer nor undue deprivation on the part of the owner.
an accepted principle as laid down in the case of Vyricherla Narayana Gajapatiraju
v. Revenue Divisional Officer that the compensation must be determined by
reference to the price which a willing vendor might reasonably expect to
receive from the willing purchaser..." In Lila Ghosh (Smt.) (Dead) Through
LR Tapas Chandra Roy vs. State of W.B. [(2004) 9 SCC 337], a Division Bench of
this Court has observed that if a plot is large, then there must be
depreciation for largeness, as large plots always fetch less than small plots.
[See also Viluben Jhalejar Contractor (Dead) By Lrs. vs. State of Gujarat,
(2005) 4 SCC 789] In V. Hanumantha Reddy (Dead) by Lrs. vs. Land Acquisition
Officer & Mandal R. Officer [(2003) 12 SCC 642], the law is stated in the
following terms :
is now a well-established principle of law that the land abutting the national
highway will fetch far more higher price than the land lying interior" It
is also well-settled that for the purpose of determining the market value of
the acquired lands, the comparable sales method i.e. the lands sought to be
compared must be similar in potentiality and nature may be adopted. [See Panna Lal
Ghosh and Others vs. Land Acquisition Collector and Others (2004) 1 SCC 467].
also trite to state that the market value of agricultural land is lower than
that of land suitable for commercial purposes [See Om Prakash (Dead) By LRs.
and Others vs. Union of India and Another (2004) 10 SCC 627] .
Reference Court, it is trite, has to apply the comparable sales method as also
the situation of the land which is to be appreciated keeping in view the fact
as to whether acquired land is similar to any land sold in the vicinity.
7 SCC 650], this court observed:
It is no doubt true that courts adopt comparable sales method of valuation of
land while fixing the market value of the acquired land. While fixing the
market value of the acquired land, comparable sales method of valuation is
preferred than other methods of valuation of land such as capitalisation of net
income method or expert opinion method. Comparable sales method of valuation is
preferred because it furnishes the evidence for determination of the market
value of the acquired land at which a willing purchaser would pay for the
acquired land if it had been sold in the open market at the time of issue of
notification under Section 4 of the Act. However, comparable sales method of
valuation of land for fixing the market value of the acquired land is not
always conclusive. There are certain factors which are required to be fulfilled
and on fulfilment of those factors the compensation can be awarded, according
to the value of the land reflected in the sales. The factors laid down inter alia
sale must be a genuine transaction,
the sale deed must have been executed at the time proximate to the date of
issue of notification under Section 4 of the Act,
the land covered by the sale must be in the vicinity of the acquired land,
the land covered by the sales must be similar to the acquired land, and
the size of plot of the land covered by the sales be comparable to the land
these factors are satisfied, then there is no reason why the sale value of the
land covered by the sales be not given for the acquired land. However, if there
is a dissimilarity in regard to locality, shape, site or nature of land between
land covered by sales and land acquired, it is open to the court to
proportionately reduce the compensation for acquired land than what is
reflected in the sales depending upon the disadvantages attached with the
acquired land." Hyderabad Urban Development Authority, Hyderabad and
Others, (1995) 2 SCC 305] The Courts will also have to take into consideration
the enormity of the financial implication of enhancement in view of the size of
the land acquired for a particular project.
Jhalejar Contractor (supra), this Court held :
One of the principles for determination of the amount of compensation for
acquisition of land would be the willingness of an informed buyer to offer the
price therefor. It is beyond any cavil that the price of the land which a
willing and informed buyer would offer would be different in the cases where
the owner is in possession and enjoyment of the property and in the cases where
he is not.
Market value is ordinarily the price the property may fetch in the open market
if sold by a willing seller unaffected by the special needs of a particular
definite material is not forthcoming either in the shape of sales of similar
lands in the neighbourhood at or about the date of notification under Section
4(1) or otherwise, other sale instances as well as other evidences have to be
The amount of compensation cannot be ascertained with mathematical accuracy. A
comparable instance has to be identified having regard to the proximity from
time angle as well as proximity from situation angle. For determining the
market value of the land under acquisition, suitable adjustment has to be made
having regard to various positive and negative factors vis-`-vis the land under
acquisition by placing the two in juxtaposition. The positive and negative
factors are as under:
factors Negative factors
of size (i) largeness of area
to a road (ii) situation in the interior at a distance from the road
on a road (iii) narrow strip of land with very small frontage compared to depth
(iv) nearness to developed area
level requiring the depressed portion to be filled up
shape (v) remoteness from developed locality
vis-`-vis land under acquisition (vi) some special disadvantageous factors
which would deter a purchaser
value for an owner of an adjoining property to whom it may have some very
Whereas a smaller plot may be within the reach of many, a large block of land
will have to be developed preparing a layout plan, carving out roads, leaving
open spaces, plotting out smaller plots, waiting for purchasers and the hazards
of an entrepreneur. Such development charges may range between 20% and 50% of
the total price." It was further observed :
The purpose for which acquisition is made is also a relevant factor for
determining the market value. In Basavva v. Spl. Land Acquisition Officer7
deduction to the extent of 65% was made towards development charges." The
Court noticed a large number of decisions wherein deductions had been made at
different rates varying from 20% to 53%. The Court also noticed an earlier
decision of this Court in K.S. Shivadevamma vs. Assistant Commissioner and Land
Acquisition Officer [(1996) 2 SCC 62], wherein it was opined :
is then contended that 53% is not automatic but depends upon the nature of the
development and the stage of development. We are inclined to agree with the
learned counsel that the extent of deduction depends upon development need in
each case. Under the Building Rules 53% of land is required to be left out.
This Court has laid as a general rule that for laying the roads and other
amenities 33-1/3% is required to be deducted.
the development has already taken place, appropriate deduction needs to be
made. In this case, we do not find any development had taken place as on that
date. When we are determining compensation under Section 23(1), as on the date
of notification under Section 4(1), we have to consider the situation of the
land development, if already made, and other relevant facts as on that date. No
doubt, the land possessed potential value, but no development had taken place
as on the date.
view of the obligation on the part of the owner to hand over the land to the
City Improvement Trust for roads and for other amenities and his requirement to
expend money for laying the roads, water supply mains, electricity etc., the
deduction of 53% and further deduction towards development charges @ 33-1/3%,
as ordered by the High Court, was not illegal." [See also Basavva (Smt.)
and Others vs. Spl. Land Acquisition Officer and Others - [(1996) 9 SCC 640]
The High Court, as has been noticed hereinbefore, without assigning any reason
discarded the method of valuation adopted by the reference court.
the reference court, the Respondents herein only relied upon the judgments and
awards granting compensation for acquisition of similar lands. The High Court
while allowing an application for adduction of additional evidence referred
only to certain notifications issued by the Union of India in the year 1965
which were meant for the residential plots whereby allegedly the market value
was stated to be 150 per sq. yd. for lands situated at Vasant Vihar wherefor
certain deductions were made @ 12% p.a. therefrom in respect of the lands
acquired under the notification dated 24.10.1961.
fail to understand as to how or on what basis, the High Court took recourse to
the said method wholly ignoring the other materials on records.
also observe that the High Court failed to take into consideration that
recourse to such circulars may be impermissible and particularly in the facts
and circumstances of the present case.
Nagnatham vs. Revenue Divisional Officer, Adilabad, A.P. and Others [(1994) 4
SCC 595], this Court observed :
market value of the land for proper stamp duty has to be determined as per the
law under Section 47-A itself. That view was followed by another learned Single
Judge in P. Sasidar v. Sub-Registrar It is, therefore, clear that the Basic
Valuation Register prepared and maintained for the purpose of collecting stamp
duty has no statutory base or force. It cannot form a foundation to determine
the market value mentioned thereunder in instrument brought for registration.
Equally it would not be a basis to determine the market value under Section 23
of the Act, of the lands acquired in that area or town or the locality or the taluk
etc. Evidence of bona fide sales between willing prudent vendor and prudent
vendee of the lands acquired or situated near about that land possessing same
or similar advantageous features would furnish basis to determine market
value." See also in Krishi Utpadan Mandi Samiti, Sahaswan, District Badaun
through its Secretary vs. Bipin Kumar and Another [(2004) 2 SCC 283].
at this juncture notice a decision of this Bench relied upon by Mr. Harish
Salve being DDA and Others vs. Joginder S. Monga and Others [(2004) 2 SCC 296].
Therein this Court was not concerned with valuation of land under the Land
Acquisition Act. In that case DDA granted lease in favour of a cooperative
society in terms of the Delhi Development Act, 1957 and the rules framed thereunder,
known as the Delhi Development Authority (Disposal of Developed Nazul Land)
Rules, 1981. Some members of the cooperative society intended to sell the land wherefor
the DDA was entitled to recover a portion of unearned increase in value i.e.
difference between the premium paid and market value of plot at the time of
sale. The Government of India, however without enforcing any increase in the
sale price of the land extended the validity of the land rates in force till
31.3.1996 by a circular dated 11.11.1994. A case of discrimination was raised
by Monga vis-`-vis one Rajiv Gupta. Although the latter received the benefit of
priority under the policy of conversion from leasehold to freehold, the
respondent therein was denied the same. The said decision, therefore, will have
no application to the fact of the present matter, as therein 50% of the
unearned increase was to be paid to the DDA in terms of the covenant contained
in the deed of lease; and while determining the amount DDA was required to take
into account the amount of consideration specified in the agreement and/or
clearance certificate issued by the Income Tax Officer, which was not done.
(Smt.) and Others vs. State of Maharashtra [(1996) 2 SCC 152], this Court
categorically held that if the owner himself has purchased some lands, the same
should be taken into consideration having regard to the admission on market
value of the land made by him stating :
It is seen that the reference court blissfully overlooked the admission of the
owner on the surmise that it is an estimate made by the claimant and the
evidence of the sale deeds under Exs. 38 and 44 being prevailing prices, it
acted thereon and determined the compensation. The approach of the reference
court is clearly illegal and that of the High Court is quite correct and it was
the only way in which the market value could be determined on the face of the
evidence on record. The reference court committed manifest error in determining
the compensation on the basis of sq. ft. When lands of an extent of 20 acres
are offered for sale in an open market, no willing and prudent purchaser would
come forward to purchase that vast extent of land on sq. ft. basis.
the reference court has to consider the valuation sitting on the armchair of a
willing prudent hypothetical vendee and to put a question to itself whether in
given circumstances, he would agree to purchase the land on sq. ft. basis. No
feat of imagination is necessary to reach the conclusion. The answer is
obviously no. This aspect of the matter was totally ignored by the reference
court and mechanically accepted the two sale deeds to enhance the compensation
at a value of nearly Rs 35,000 per acre. In State of M.P. v. Shantabhai and V.M. Salgoacar & Brother Ltd.
v. Union of India, this Court had accepted the principle that when the owner
himself has purchased the land under acquisition, the consideration mentioned
in the sale deed would form the basis to determine the market value.
the High Court has relied on the sale deeds under Exs. 65 and 66 relating to
the lands in Nityanand Nagar Colony, it is also necessary to go into that
aspect of the matter in the view we have stated above." Having noticed the
legal principles, we are of the opinion that this case merited a different
treatment at the hands of the High Court. The land in question was acquired for
a University. The University was constructed in a large area. By reason of the
two notifications in question alone, about 5000 bighas of lands were acquired.
Out of the said 5000 bighas, the lands needed for actual construction of the
building may be a few bighas only. A large portion of the land must have been
kept vacant for future development as also for other purposes e.g. sport and
other activities. The area consisting of stones might not have been utilized
for the purpose of raising any construction. A portion of land admittedly
contained minerals. A number of minerals were said to be deposited in the land
in question, namely, mica, berill quards and china clay. The Respondents,
however, having regard to the materials on records confined their claim only to
China clay. 19% of the total minerals bearing land is said to have been
exploited. How far these minerals bearing land were suitable for raising
construction is a matter of guess. As per the evidence on record the minerals
can be found upto a depth of 60 ft. It is not necessary for us to go into this question
in details as the High Court did not advert thereto. But suffice it to say that
for the purpose of carrying out mining operation, the Respondents were required
to comply with the safety provisions contained in the Mines Act, 1952 and the
rules and regulations framed thereunder.
Reference Court and the High Court unfortunately did not consider the question
as to what amount was required to be expended for bringing the said area back
to the normal so as to enable the University authorities to raise construction
thereon. Minerals were evidently taken out by taking recourse to the quarry
method, but there is no evidence adduced by the Respondents to show that the
pits caused by such mining activities have already been filled up.
have been taken through the evidence adduced on behalf of the Respondents. The
witnesses examined on behalf of the Respondents did not state as to when the
pits had been filled up or what was the costs incurred therefor. It is also
difficult to rely on the said evidence as witnesses examined on behalf of the
Respondents were not expert witnesses. No document has also been filed in
support of the case of the Respondents. Mr. Ramamurthi when confronted with
this question, conceded that there does not exist any satisfactory evidence on
the said issue.
fact the Reference Court or the High Court did not address themselves on the
question that the market value of the acquired lands was required to be
determined having regard to the largeness of area and the purpose for which
they are required, namely, for the University and not for the development of
the township or the residential colony wherefor different standards may have to
be adopted. The Reference
Court and the High
Court should have also taken into consideration the fact that the lands in
question being of different categories would fetch different prices and same
price might not have been available for all types of lands. Recourse taken by
the High Court to the circulars issued for the lands acquired for residential purpose
only therefore will have no application in the facts and circumstances of the
OF INTEREST DURING THE PERIOD 17TH JANUARY, 1972 TO 27TH MAY, 1980 It is not in
dispute that the proceedings between 17th January, 1972 to 27th May, 1980
remained stayed on the representation of the Respondents that they would not be
claiming interest at the enhanced amount of compensation, if any, during the
period of stay. By an order dated 17th January, 1972, the Reference Court recorded:
Gupta learned Counsel for the petitioners states that the petition may be
stayed sine die and that the petitioner would not be claiming any interest on
the enhanced amount of compensation money, if any, for the period of stay.
Counsel for UOI has no objection to the proposed stay on the terms stated. I
would accordingly stay the proceedings in this case sine die on the condition
that no interest will be awarded to the petitioners on the enhanced
compensation which may be eventually granted to him, for the period of
stay." Similar orders were passed on 25th February, 1981 and 5th March, 1923 in Land Acquisition Case Nos. 189/81 and 188/81
appears that in the reference arising out of the award No. 2225 Smt.
suo moto by the court, presumably having regard to the orders passed in other
contention of the Appellant was negatived on the ground that Sections 28 and 34
being imperative in character the purported undertaking /representation made on
behalf of the Respondents would not amount to estoppel or waiver.
28 and 34 of the Act read as under:
Collector may be directed to pay interest on excess compensation.--If the sum
which, in the opinion of the court, the Collector ought to have a awarded as
compensation is in excess of the sum which the Collector did award as
compensation, the award of the Court may direct that the Collector shall pay
interest on such excess at the rate of nine per centum per annum from the date
on which he took possession of the land to the date of payment of such excess
that the award of the Court may also direct that where such excess or any part
thereof is paid into Court after the date of expiry of a period of one year
from the date on which possession is taken, interest at the rate of fifteen per
centum per annum shall be payable from the date of expiry of the said period of
one year on the amount of such excess or part thereof which has not been paid
into Court before the date of such expiry.
Payment of interest.--When the amount of such compensation is not paid or
deposited on or before taking possession of the land, the Collector shall pay
the amount awarded with interest thereon at the rate of nine per centum per
annum from the time of so taking possession until it shall have been so paid or
that if such compensation or any part thereof is not paid or deposited within a
period of one year from the date on which possession is taken, interest at the
rate of fifteen per centum per annum shall be payable from the date of expiry
of the said period of one year on the amount of compensation or part thereof
which has not been paid or deposited before the date of such
expiry"." It may not, thus, be correct to contend that the said
provisions are so imperative in character that waiver thereof is impermissible
in law or would be against public interest. Grant of interest in terms of
Section 28 of the Land Acquisition Act is discretionary. Only rate of interest
specified therein is mandatory. Section 34 of the Act ex facie, however,
appears to be imperative in character as the word 'shall' has been used. A
discretion vested in the court, it is trite, may not be exercised where the
right to claim interest has been waived expressly by the parties and/or their
counsel. Even a mandatory provision of a statute can be waived.
effect of Section 28 of the Act came up for consideration before through
Collector of Bijnor [AIR 1967 SC 465] wherein this Court held the said
provision to be discretionary in character observing that it is for the court
to consider whether in the facts and circumstances of the case, such interest
should be directed to be paid at all. It is now trite that the court having
regard to the facts and circumstances of a particular case as, for example,
where there is a short interval between the award and the payment, may not
direct grant of any interest.
question came up directly for consideration before a Division Senapati and
others [AIR 1981 SC 969 : (1981) 2 SCC 221] wherein the claimants agreed to the
amount awarded to them subject to Government making payment within the 31st
March, 1969 stating:
further agree that we will make no further claim in regard to compensation for
the same land provided actual payment is received within the above period of
31st March, 1969" In that case, before the High Court a plea was raised
that the representation of the claimants was confined to the amount of
compensation but the High Court negatived the same stating:
it is true that in the agreement dated February 24, 1969 which the respondents
signed and sent to the government along with their letter of that date they
stated that they would not make any further claim in regard to
"compensation", but that expression, in our opinion, was clearly used
by them not in the sense in which it is used in Sections 23 and 34 of the Act
but more comprehensively, meaning reimbursement in full satisfaction of their
claim in respect of the acquisition.
this was so was made clear in the letter addressed to them by the
Under-Secretary in which he expressly stated that "you and your
co-sharers will make no further claim for the land thus acquired by the
Under-Secretary did not use the word "compensation" in his letter nor
did the respondents use it in their reply in which, on the other hand, they
made a grouse of the hardship which the delay in payment had caused to them and
brought it to the pointed attention of the Under-Secretary that immediate
payment was an essential part of the bargain. In the agreement signed by them
(as pointed out above) they no doubt used the word "compensation" but
they added that they would make no further claim in regard to it if actual
payment was received by them before March 31, 1969. The condition thus attached
by them to the agreement would show that by the acceptance of the quantified
sum of Rs 4,41,202.45 they condoned the delay in payment and also relinquished
all future claims to interest. If it were otherwise, there is no reason why the
respondents would not have expressly reserved their right to claim interest
under Section 34 of the Act. The tenor of the two letters coupled with the
agreement leads to no other conclusion." It is not in dispute that if a
person alters its position pursuant to the representation made by the other
side, the principles of estoppel would be applicable and by reason thereof, the
person making the representation Purna Theatre and Others [(2004) 8 SCC 229]
this Court held:
The principle of waiver although is akin to the principle of estoppel; the
difference between the two, however, is that whereas estoppel is not a cause of
a rule of evidence; waiver is contractual and may constitute a cause of action;
it is an agreement between the parties and a party fully knowing of its rights
has agreed not to assert a right for a consideration.
right can be waived by the party for whose benefit certain requirements or
conditions had been provided for by a statute subject to the condition that no
public interest is involved therein. Whenever waiver is pleaded it is for the
party pleading the same to show that an agreement waiving the right in
consideration of some compromise came into being. Statutory right, however, may
also be waived by his conduct." 1969 (2) SCR 60 at 63].
Biradar and Others [(2005) 4 SCC 264], the principles of estoppel was applied
in relation to a consent award holding that once a consent award had been
passed, the claimants were precluded from applying for a reference under Section
18 of the Act.
High Court has relied upon a decision of this Court in Suptd. Of 2065 : (1976)
1 SCC 766]. In that case the proceedings were not stayed pursuant to any
undertaking or representation made by the claimant. The order of interim injunction
was passed whereunder the claimants enjoyed certain benefits and in that fact
situation the plea of waiver was raised. The Constitution Bench observed:
The third contention of the Solicitor-General is that the respondents waived
service of a notice within two years of the expiry of the return period by
reason of the order of injunction obtained by them. Waiver is either a form of estoppel
or an election. The doctrine of estoppel by conduct means that where one by
words or conduct wilfully causes another to believe in the existence of certain
state of things and induces him to act on that belief, or to alter his own
previous position, the former is concluded from averring against the latter a
different state of things as existing at that time. The fundamental requirement
as to estoppel by conduct is that the estoppel must concern an existing state
of facts. There is no common law estoppel founded on a statement of future
intention. The doctrine of promissory estoppel is applied to cases where a promiser
has been estopped from acting inconsistently with a promise not to enforce an
existing legal obligation. This doctrine differs from estoppel properly so
called in that the presentation relied upon need not be one of present fact.
The second requirement of an estoppel by conduct is that it should be
unambiguous. Finally, an estoppel cannot be relied on if the result of giving
effect to it would be something that is prohibited by law. Estoppel is only a
rule of evidence.
cannot found an action upon estoppel. Estoppel is important as a step towards
relief on the hypothesis that the defendant is estopped from denying the truth
of something which he has said." The ratio of the said decision,
therefore, runs counter to the opinion of the High Court. In that case a
question as regard the jurisdiction of the court was raised as is explicit from
the following observations:
In the present case, the respondent cannot be said to have waived the
provisions of the statute. There cannot be any waiver of a statutory
requirement or provision which goes to the jurisdiction of assessment. The
origin of the assessment is either an assessee filing a return as contemplated
in the Act or an assessee being called upon to file a return as contemplated in
the Act. The respondents challenged the Act. The order of injunction does not
amount to a waiver of the statutory provisions.
issue of a notice under the provisions of the Act relates to the exercise of
jurisdiction under the Act in all cases. Revenue statutes are based on public
statutes protect the public on the one hand and confer power on the State on
the other." It is, therefore, not correct to contend that there cannot be
any waiver of the right to claim interest. Statutory provisions are made for
payment of interest with a view to compensate a party who had suffered damages
owing to a positive action or inaction of the other resulting in blockade of
money which he would otherwise have received. A party who himself represents
before the court of law that he would not claim interest with a view to obtain
an order of stay which would be for his own benefit, in our opinion, could not
be permitted to take advantage of his own wrong. [See Sushil Kumar Even
otherwise it is now well-settled that a person cannot be made to suffer owing
to an action by the Court. (Actus curiae neminem gravabit) and Others [(2005) 4
SCC 741] We, therefore, are of the view that the High Court committed a
manifest error in allowing interest for the said period. In fact, Mr. Ramamoorthy,
learned senior counsel appearing for the Respondents frankly conceded that
interest for the said period shall not be payable..
not oblivious of various decisions of different High Courts taking one view or
the other as regard the mandatory or directory character of Sections 28 and 34
but in view of our findings aforementioned, it may not be necessary to advert
OF SECTION 25 OF THE ACT
not in dispute that in the proceeding giving rise to Award No. 2040 dated
2.12.1967 a claim was made by the Respondent Smt. Pramod Gupta claiming
compensation to the extent of 1/4th share in the entire land.
also not been disputed before us that Section 25 contains a substantive
provision of law and not a procedural one and, thus, the statutory provision as
it existed prior to its amendment in the year 1984 shall apply. [See Land
(2000) 7 SCC 756] Section 25 of the Act, as it stood prior to its amendment
Rules as to amount of compensation.
When the applicant has 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
When the applicant has refused to make such claim or has omitted without
sufficient reason (to be allowed by the Judge) to make such claim, the amount
awarded by the court shall in no case exceed the amount awarded by the
When the applicant has omitted for a sufficient reason (to be allowed by the
Judge) to make such claim, the amount awarded to him by the court shall not be
less than, and may exceed, the amount awarded by the Collector."
High Court negatived the contention of the Appellant in regard to the bar under
sub-section (2) of Section 25 of the Act opining :
For attracting the said provision service of notice upon the occupier or the
person interested as envisaged under Section 9(3) is mandatory and admittedly
no notice under Sections 9 and 10 had been served by the Collector upon the
Having regard to the Parliamentary amendment carried out by reason of Land
Acquisition Act, 1984, the bar ceases to exist.
of Chandigarh [AIR 1985 SC 1576] and Union of India and Anr.
obligatory upon the State to pay compensation on the basis of the market value
of the land acquired and in particular having regard to the judgments of the
courts operating in the field.
not necessary for us to dilate on the second and third reasonings of the High
Court in view of the authoritative pronouncement of the court in B.V. Reddy
(supra) wherein the applicability of unamended provision of Section 25 in a
case arising prior to amendment has been upheld.
as non-service of notice under Sub-section (3) of Section 9 is concerned, we
may, however, notice that in the awards of the Collector, it was categorically
stated that the notice under Sections 9 and 10 of the Act had been issued.
Before the High Court only the records of the Reference Court were available. The learned counsel appearing on behalf of
the Respondents stated before us that the fact as to whether such notices had
been served or not could only be ascertained from the records of the Collector.
the question as regard service of notice is a pure question of fact, we may
observe that the said question may have to be answered keeping in view certain
legal principles, viz.,
object for which Section 9 has been enacted;
the situation in which the Respondent had filed a claim having knowledge of the
proceedings under the Land Acquisition Act as also service of notice in terms
of Sub-section (1) of Section 9 thereof;
of notice under Sub-section (1) of Section 9 together with service upon those
persons may substantially serve the purpose; and (iv) the prejudice doctrine.
report submitted before the Reference Court,
the Land Acquisition Collector stated that such notices had been served.
thus, may be raised as regard their proper service.
Sen Kashyap vs. Union of India & Ors. [1973) 9 DLT
59], the Delhi High Court held that if the petitioner has taken part in a
proceedings although the claimant has not been served with any notice, he
cannot raise any grievance in this behalf. In a situation of this nature, even
the doctrine of prejudice may be invoked [See State of Punjab vs. Sawaran Singh
[2005 (5) SCALE 601]. of Karnataka and Others [1994 Supp (2) SCC 511], this
Court held that service of notice upon the recorded persons whose names appear
in the revenue records only would subserve the purpose for which notice is
required to be served.
case where the Calcutta High Court distinguished the said decision arising out
of the West Bengal Land (Requisition and Acquisition) Act, 1948 stating that
the said decision was not applicable having regard to the statutory provisions
contained in Section 17(5) of the Bangalore Development Authority Act, 1976,
this Court in W.B. Housing Board and with the view of the Calcutta High Court
The Calcutta High Court in the impugned judgment
distinguished this judgment of the Supreme Court in Sureshchandra C. Mehta case
on the ground that in that case the law itself prescribed notice to be served
on a person whose name was entered in the revenue record. But the observations
of the Supreme Court in that case that "the authority is not required to
make a roving inquiry as to who is the person entitled to a notice" is
quite apt and has to be given due weight and consideration." Although the
question is to be considered by the High Court afresh, we may point that in the
event it is found that the unamended provision of Section 25 of the Act is held
to be applicable, the High Court could not have awarded compensation at the
rate of Rs. 98/- per sq. yard whereas the claim was made only for Rs. 25/- or Rs.
50/- per sq. yard by the claimants.
this juncture, it would also be relevant to note that before the Reference Court the Respondents made their claim
only on the basis of certain awards/ judgments made by the Reference Court/ High Court.
the Reference Court in relation to the notification
dated 24.10.1961 it was contended that the compensation at the rate of Rs.
12,000/- per bigha should have been awarded by the Land Acquisition Collector.
It is true that a faint argument was advanced before the Reference Court that the lands under acquisition
were superior to those situated in Munirka and Ber Sarai.
for the purpose of determination as regard superior quality of land under
acquisition vis-`-vis the lands situated in the villages which were the subject
matter of the other acquisition cases, it was obligatory on the part of the
High Court to consider the contra plea raised by the Appellants herein.
it was also obligatory on the part of the High Court to consider the question
that a part of the lands consisted of hills and furthermore pits have been dug
up while extracting minerals; the same may not be equated with the land, which
had potential for building purposes. The High Court in its impugned judgment
has not adverted to this aspect of the matter at all.
relevant to notice the following observations of the Reference Court:
even if we take that the land in dispute is superior to the land acquired in
village Ber Sarai because of the factors pointed out above by the ld. Counsel
for the claimants, the claimants cannot be given compensation at a rate higher
than Rs. 12,000/- per bigha because the claimants have not been able to produce
any evidence on record with regard to higher compensation having been given in
respect of any other superior land in village Munirka or Ber Sarai nor is there
any measure to increase the compensation over and above Rs. 12,000/- per bigha
because of the superiority of this land over the land in village Munirka and Ber
Sarai." Nothing has been shown before the High Court that the said
findings of the Reference
Court were unfounded.
The High Court in its judgment has proceeded computing the amount of compensation
on the basis of the circle rates without considering this aspect of the matter.
OF REFERENCE AND ADDITIONAL EVIDENCE:
not been disputed before us that the claimant Smt. Pramod Gupta purchased 1/4th
share of the land in question by a deed dated 14.4.1960. The Appellants filed
an application under Order 41, Rule 27 of the Code of Civil Procedure for
bringing Xerox copy of the said sale deed on records but the same was rejected
inter alia on the ground that prior thereto no effort was made to rely upon the
said sale deed.
now well-settled that if an owner himself has purchased the land, the same
would be the best evidence for determining the amount of compensation. [See Shakuntalabai
(supra)] The High Court furthermore committed a serious error in coming to the
conclusion that the said deed was executed prior to the date of acquisition
inasmuch as the notification under Section 4 was issued on 24.10.1961.
further appears that Shri Rajiv Gupta purchased 1/8th share of the amount of
compensation payable to his predecessors-in-interest for a sum of Rs. 30,000/-
by a deed of sale dated 23.1.1980, a copy whereof has been annexed with I.A. 8
have noticed hereinbefore that before the Land Acquisition Collector the Respondents
had claimed only a sum of Rs. 12,000/- per bigha.
the same the Respondents filed an application purported to be under Order 6,
Rule 17 of the Code of Civil Procedure praying for amendment of Memo of Appeal
and the Reference claiming higher compensation. The Respondents appear to have
further filed applications under Order 41, Rule 27 of the Code for adduction of
additional evidence in support of their amended claim. The High Court while
rejecting the claim application filed by the Appellants allowed the application
for amendment as also the application for adduction of additional evidence
filed by the Respondents.
Salve submitted that the bar under Section 25 of the Act must be considered
having regard to Section 53 thereof which provides for applicability of the
provisions of the Code of Civil Procedure. The learned counsel urged that the
Respondents had already filed an application for amendment of Memo of Appeal in
terms of Order 41, Rule 3 of the Code of Civil Procedure, which having been
allowed, would amount to amendment of the claim application in the reference
case itself. Strong reliance in this [(2003) 2 SCC 484].
not agree. The pleadings before the Trial Court are the basis for adduction of
evidence either before the Trial Court or before the Appellate Court. By
amending the memo of appeal the original pleadings cannot be amended. The
claimants Respondents made their claim before the Reference Court claiming compensation for the lands
acquired under two different references at a certain rate. They are bound by
the said pleadings.
53 merely provides for applicability of the provisions of the Code of Civil
Procedure including the one containing Order 6, Rule 17 thereof.
6, Rule 17 of the Code of Civil Procedure postulates amendment of pleadings at
any stage of the proceedings. Before an amendment can be carried out in terms
of Order 6, Rule 17 of the Code of Civil Procedure the court is required to
apply its mind on several factors including, viz., whether by reason of such
amendment the claimant intends to resile from an express admission made by him.
In such an event the application for amendment may not be allowed. [See. M/s. Modi
Spinning & Weaving Mills Co. Ltd. Kalyan Mal and Others [(1998) 1 SCC 278]
and Sangramsinh P. Gaekwad 581] Delay and laches on the part of the parties to
the proceedings would also be a relevant factor for allowing or disallowing an
application for amendment of the pleadings. The High Court neither assigned
sufficient or cogent reasons nor applied its mind as regard the relevant
factors while allowing the said application for amendment. It has also not been
taken into consideration that the application for amendment of pleading might
not have been maintainable in view of statutory interdict contained in
Sub-section (2) of Section 25 of the Act, if the same was applicable.
Anoop Singh (supra), whereupon reliance has been placed by Mr. Salve, the
Division Bench of this Court did not have any occasion to Kanhaiya Lal and
Others [(2000) 7 SCC 756] and B.V. Reddy (supra), which, it will bear
repetition to state, are authorities for the proposition that once it is held
that Section 25(2) of the Act would be attracted in a given case, the parties
are estopped and precluded from claiming any amount higher than that claimed in
their claim petition before the Collector. An observation made to the effect
that an application under Order 6, Rule 17 would be maintainable having regard
to Section 53 of the Act, with utmost respect, does not constitute a binding
precedent. No ratio has been laid down therein and the observations made
therein are without any discussion.
no reason has been assigned in support of the said proposition of law.
(supra) also this Court did not address the question as to whether Order 6,
Rule 17 would be applicable in relation to the original claim petition or memo
be true that not only the memorandum of appeal but also the reference was
amended. Mr. Rao pointed out that the necessary amendments have been carried
out in the application for reference or memorandum of appeal. In terms of Order
VI Rule 18 of the Code of Civil Procedure, such amendments are required to be
carried out in the pleadings by a party who has obtained leave to amend his
pleadings within the time granted therefor and if no time was specified then
within fourteen days from the date of passing of the order. The consequence of
failure to amend the pleadings within the period specified therein as laid down
in Order VI Rule 18 of the Code is that the party shall not be permitted to
amend his pleadings thereafter unless the time is extended by the court. It is
not in dispute that such an order extending the time specified in Order VI Rule
18 has not been passed.
however, would contend that in any event, three Respondents claimed
compensation @ Rs.50/- per sq. yd and one @ Rs.25/- per sq. yd. and in that
view of the matter having regard to the cross- objections filed by them, the
High Court could have exercised its jurisdiction while allowing the
cross-objections to enhance the amount of compensation to the extent of Rs.50/-
per sq. yd. The said argument was advanced on the premise that the Respondents
had, as noticed hereinbefore, raised a specific contention before the Reference Court that the land situated in Village Masoodpur
was better than the land situated at Munirka or Ber Sarai. We are not
persuaded. The finding of fact arrived at by the Reference Court to the effect
that the Appellants had not been able to show that the land situated at the
aforementioned village are not only inferior to the land situated at village Masoodpur
and which finding having not been reversed by the High Court, any consideration
other than those which found favour with the Reference Court could not have
been entertained. The High Court in its judgment has referred to various
decisions showing that the rates specified in the notification issued by the
Union of India would be admissible in evidence.
is nothing to show that the said judgments were brought on record in accordance
with law. There is also nothing to show that any application under Order VI
Rule 17 of the CPC was filed and allowed by the High Court permitting the
Respondents to bring the said judgment on records. In fact, several reported
judgments have been referred to by the High Court not for the purpose of
applying the ratio therein as precedent that such notifications are admissible
in evidence but for the purpose of computing the amount of compensation on the
basis of the rates at which the market price was fixed therein. The High Court
had referred to the judgments whereby the market value of the land had been
calculated on the basis of the rates specified in such notification in respect
of Vasant Vihar, Defence Enclave and several other areas, without arriving at
any finding that the said judgments are admissible in evidence or otherwise
have relevance for determination of the market value of the land in question.
The rights of the parties, it is well- settled, must be determined on the basis
of the case pleaded and proved by leading proper evidence and just not on the
basis of other reported Officer, M.P. and Others, (2004) 10 SCC 126 and Sanjay Gera
vs. Haryana Urban Development Authority and Another (2005) 3 SCC 207].
have noticed hereinbefore that the amendments have not been carried out in the
pleadings in terms of Order VI, Rule 18 of the Code of Civil Procedure. The
said provision being mandatory, if not complied with the consequences flowing therefrom
purported amendments of the Memo of Appeal and the Reference applications,
therefore, could not have been the basis for allowing adduction of additional
evidence as has been done by the High Court.
submission of Mr. Rao that all the procedural requirements contained in the
Land Acquisition Act were required to be strictly complied with having regard
to the fact that at the relevant point of time, the right to property was a
fundamental right, is misconceived. We are not, in these appeals, concerned
with the action of the State in acquiring the properties but only concerned
with determination of the market value thereof.
NOS.7-8 OF 2004 :
the claimants Shri Rajiv Gupta s/o Shri L.R. Gupta filed an application marked
as I.A. Nos.7-8 of 2004 wherein the following prayers were made :
Stay the operation of the judgment and order dated October 5, 2001 passed by the Hon'ble High Court of Delhi in RFA Nos.83/87,
84/87, 85/87 and 86/87.
aside the judgment and order dated October 5, 2001 and to remand the case back to the
High Court of Delhi for fresh disposal.
stay the payment to L.R. Gupta HUF decree holder in Execution Petitions No.
117/2002, 119/2002 titled Rajiv Gupta & Others vs. U.O.I. and Ex. No. 114/2002
& 118/2002 entitled Pramod Gupta & Ors. vs. U.O.I. before the Court of Shri
A.K. Pahak, A.D.J. Tis Hazari Courts, Delhi.
pass any other order which this Hon'ble Court deems just, fit and proper in the circumstances of the
case." The contention of the applicant is that the High Court committed a
serious error in issuing a direction to the effect that the amount of
compensation deposited by the Appellants should be disbursed in favour of Shri
L.R. Gupta HUF as in relation thereto a lis is pending in a partition suit
between the parties in a competent court of civil jurisdiction.
not in dispute that the inter se disputes between the parties are pending
decision in several first appeals before the High Court in terms of Sections 30
and 31 of the Land Acquisition Act. The Respondents herein as also the
interveners are persons interested but the question as regard their entitlement
to the amount of compensation determined by the High Court is yet to be
determined. The Division Bench of the High Court, however, despite noticing
that the first appeals are pending wherein the inter se dispute/claims between
the parties are to be adjudicated upon, without any application made by Shri
L.R. Gupta HUF has authorized it to collect the entire amount of compensation
amount of compensation has thus to be realized, received and withdrawn only by
the Karta of L.R. Gupta HUF, through Shri L.R. Gupta. The amount of
compensation, therefore, deserves to be paid to L.R. Gupta, HUF through its Karta
Shri L.R. Gupta. Ordered accordingly." It is interesting to note that the
said direction had been passed on an application filed by Shri Rajiv Gupta for
deletion of the three names of Shri Sanjay Gupta, Smt. Sumangli Gupta and Shri
L.R. Gupta and for continuing with the proceedings in his name and in the name
of Smt. Pramod Gupta, inter alia, on the ground that the bhumidhari rights
continued to remain in his name and in the name of Smt. Pramod Gupta only and
not on any application filed by any party to the said proceeding in this
behalf. We fail to appreciate as to how the aforementioned directions had been
made by the High Court on the application made by Shri Rajiv Gupta. We may also
notice that Shri L.R. Gupta had already withdrawn a sum of money as awarded by
the Reference Court, the details whereof are as under :
Compensation Amount Interest Received upto 31.03.91 Interest refundable upto
31.03.91 At the rate of 15% p.a. in case of restitution as per terms of order
dated 23.03.87 passed by this Hon'ble Court Deficit
L.R. Gupta 2,87,72,757.60 68,09,404/- 1,54,66,355/- 86,55,951
Mrs. Pramod Gupta 10,07,04,651.23 2,87,05,730/- 5,41,28,748/- 2,54,23,018/-
Rajiv Gupta 5,27,50,055.56 1,25,11,387/- 2,83,53,153/- 1,58,41,766/-
Sanjay Gupta 5,27,50,055.56 1,15,22,534/- 2,83,53,153/- 1,68,30,619/-
Sumangli Gupta 5,27,50,055.60 1,47,26,420/- 2,83,53,153/- 1,36,26,733/-
28,27,27,575.55 7,42,75,475/- 15,46,53,562/- 8,03,78,087/- "
aforementioned direction, as has been rightly submitted by the learned counsel
Mr. Bhat, is wholly unjustified and unwarranted. The said direction is,
therefore, set aside.
will also be relevant to notice the third proviso appended to sub- section (2)
of Section 31 of the Land Acquisition Act which reads as under :
also that nothing herein contained shall affect the liability of any person,
who may receive the whole or any part of any compensation awarded under this
Act, to pay the same to the person lawfully entitled thereto." In view of
the aforementioned provision there cannot be any doubt whatsoever that if and
when an occasion arises either on the basis of an application filed by the
interested parties or otherwise and/or upon disposal of the pending appeals, in
the event Shri L.R. Gupta, HUF is found to have no title over the land in
question, it would be bound to refund the entire amount of compensation
received by it together with such interest thereon, as may be determined
applying the doctrine of 'restitution'.
NOS. 17-18 OF 2005 :
have hereinbefore noticed the claim of Shri Madan Gopal Gupta and Shri Sudhir
Jain. The contention of the interveners in the aforementioned application, is
that no Bhumidhari right could be granted in favour of Gulab Sundari and in
that view of the matter any finding on Issue No.1 as framed by the Reference Court and affirmed by the High Court,
should be set aside by this Court. In these appeals, this Court is concerned
only with the determination of the question raised before us and not the inter
se dispute of title between the parties. Such a question as and when
adjudicated upon by the competent courts in appropriate proceedings will be
binding on the parties thereto inasmuch as only who succeeds in the said
proceedings will be entitled to the amount of compensation. Keeping in view the
fact that neither the Reference Court nor the High Court had any opportunity to
examine the said question as has been contended by the applicants herein, we
would observe that this Court had not determined the question that the
Respondents herein being successors of Gulab Sundari were entitled to the Bhumidhari
rights by reason of the alleged deed of sale executed in their favour, but we
only have proceeded on the basis that assuming they are Bhumidhars; in what
manner their claim for awarding compensation should be dealt with. Any
observation made herein by us should not be taken to mean that we have
determined the question of entitlement of the Respondents herein as Bhumidhar
under the Delhi Land Reforms Act finally or otherwise. Such a finding has to be
arrived at by the courts determining the said question in the pending
may, however, notice that in the appeal arising out of SLP (Civil) CC No.5724
of 2004 an award was made @ Rs. 1.74 per sq. yard, although the claim of
Rs.30/- per sq. yard was made and the High Court despite the fact that neither
application for amendment nor adduction of additional grounds was filed,
blindly followed its decision in other appeals filed by the Union of India. No
finding therein has also been arrived as to how the judgment and award of the Reference Court was unsustainable.
true that Union of India did not question the orders disallowing the
application for amendment filed by the Appellants and allowing the application
for amendment as also adduction of additional evidence by the Respondents
herein but having regard to the peculiar facts and circumstances of this case
and in particular the fact that a large amount of public money is involved, we
are of the opinion that it is a fit case where our jurisdiction of this Court
under Article 142 of the Constitution should be invoked for the purpose of
setting aside the said orders with a view to do complete justice between the
case where the lis was mishandled by the State and different courts passed
different orders, this Court relying upon a decision of this [(2005) 2 SCC 286]
invoked its inherent jurisdiction under Article 142 of the Constitution stating:
Therefore, in order to do complete justice to the parties, it is a fit case
where we need to invoke our inherent power under Article 142 of the
Senior Counsel appearing for the State of West Bengal has made a categorical submission
that all the Amins irrespective of their qualifications will be entitled to Pay
Scale 6 and no money which has been drawn by the Amins in the 36 writ petitions
will be recovered from them prior to 1-10-2001 as directed by the Division
Bench of the High Court. Therefore, we direct that all the Amins irrespective
of their qualification in the minimum scale of pay will be given Scale 6 and
they will be entitled to promotion as per rules in Scales 7 and 8 as the case
may be. Though the Division Bench has directed that no recovery shall be made
from the Amins drawing higher pay scale for the period prior to 1-10-2001 but
since the law has now been declared by this Court, we extend that period till
this date i.e. no recovery shall be effected from all these Amins in 36 writ
petitions and they shall be properly fixed in the pay scale provided for Amins
in the ROPA Rules and their pay should be protected in the respective pay
scales. This is being done because of the fact that the State Government is
responsible for creating such anomalous situation. Had the State Government
contested the matter and consequently pursued the remedies available under law,
then this anomalous situation would not have been created. Though the Division
Bench has given the benefit of the pay scales up to 1-10-2001, the said cut-off date is extended till this date because
we are invoking the inherent jurisdiction under Article 142 of the
Constitution." CIVIL APPEAL NOS. 6825- 6832 OF 2003 For the reasons
aforementioned, the impugned judgments are set aside and the matters are
remitted to the High Court for fresh consideration, in the light of the
observations made hereinbefore. The appeals are disposed of accordingly. No
APPEAL NOS. 950, 2661 OF 2005, CIVIL APPEAL NOS5566-5569OF 2005 [Arising out of
SLP (Civil) No. 14383 of 2004, CC Nos. 5724, 9371, 11751 of 2004] These appeals
were disposed of by the High Court on the basis of the judgment rendered by a
Division Bench of the Delhi High Court in Bhooria & Ors. vs. Union of India [95
(2002) DLT 100 (DB)].
view of the fact that in Civil Appeal Nos.6825-26 of 2003 etc., the impugned
judgments are being set aside and the matter is remitted to the High Court, the
judgments and awards passed in these appeals must also be set aside on the same
lines. The Appeals are disposed of accordingly. No costs.