Jaipur
Development Authority Vs. Mahavir Housing Co-Op. Society, Jaipur [1996] INSC 1158
(18 September 1996)
K. Ramaswamy,
Faizan Uddin, G.B.Pattanaik
ACT:
HEAD NOTE:
WITH CIVIL
APPEAL NO. 12653 OF 1996 (Arising out of SLP (C) No.14811 of 1994)
O R D
E R
Leave
granted.
Notification
under Section 4(1) of the Rajasthan Land Acquisition Act, 1953 was published on
August 21, 1969 acquiring a large extent of 484 bighas
11 biswas of land for Jaipur Urban Development Scheme by different
notifications.
An
extent of 4 acres 5 biswas (9845 sq.yds.) relates to the acquisition in appeal
arising out of SLP (C) No.14811/94. In respect of the appeal arising out of SLP
(C) No.6519/94, an extent of 10 bighas 7 biswas was acquired. The Land
Acquisition Officer determined the compensation by his award Dated July 16,
1981 and October 12, 1981 respectively determining the Compensation at the rate
of Rs. 5,000/- per bigha to the respondent - Jai Ambe Co-op. Housing Society
and Rs.7,500/- per bigha to the respondent - Mahavir Housing to-op. Society. On
reference, the civil Judge enhanced the compensation at the rate of Rs.40,000/-
per bigha. As regards the award of the Civil Judge, an appeal was filed against
the respondent - Jai Ambe Co-op. Society Ltd. The learned single Judge in
appeal No.142/92 has confirmed the same by judgment dated May 2, 1994. As regards the award in favour of Mahavir Housing
Co-operative Society, no appeal was filed. But in execution an objection has
been raised regarding additional amount awarded under Section 23(1-A) which was
negatived. On revision, the High Court in Revision No.1059/93 dated December 20, 1993 confirmed the same. Thus, these
appeals by special leave.
When
the matter relating to Mahavir Housing Co operative Society initially came up,
notice was confined in respect of section 23(1-A) but later when it was brought
to our notice of the fraud and collusion between the officers entrusted with
the prosecution on behalf of the appellant and the claimants, we have indicated
to the counsel that we would go into the question of determination of the
compensation Thus these cases are heard together. It is seen that from the
evidence adduced before the reference Court in respect of jai ambe Co-operative
Housing Society except one claimant Mr.Garg no documentary evidence has been
adduced in support of the claimant for enhancement. Two awards under Section 26
came to be filed in which one award relating to the Mahavir Housing
Co-operative society and another award relating to the same notification but an
amount of Rs.24,000/-per bighas was awarded. As regards the claim in Mahavir
housing co-operative Society is concerned, they relied upon a judgment of the
High Court in which the High Court has granted of some lands at the rate of
Rs.12/-per sq.yd. which related to the acquisition of 1994 and also a
certificate issued by Tehsildar relating to some other village, which worked
out at the rate of Rs 44,000/- per acre and the sale deeds in support thereof.
One curious fact in both the cases that cannot be lost sight of is that the
claimants have purchased these properties after the notification under Section
4(1) was published and a reference came to be made at their instance to the
civil Court. Though an opportunity was given to the appellant, for well over 11
years, no counter affidavit has been filed. As a result, they were set ex-parte.
Yet another curious aspect that we cannot lose sight of is that the reference
Judge has merely with parrot-like t consideration swallowed what with witnesses
had stated that the market value is Rs.50/- per sq.yd. without subjecting to
any scrutiny as per the tests laid down by this Court. It is also to be noted
that the same aspect was repeated by the learned Judge of the High Court in
to-any scrutiny as per the tests laid down by this court. It is also to be
noted be that the same aspect was repeated by the learned judge of the High
court in jai Ambe Co-operative Housing society's case.
The
question, therefore, is what would be the reasonable compensation to which the
claimants are capable to get? In view of the settled legal position that the
claimants being the subsequent purchasers cannot have a higher right than that
the original owner himself had. They cannot set up any title to the property on
the basis of sale deeds and consideration but may be entitled to the
compensation obviously getting into the shoes of the claimant. We need not go
into the question of correctness whether or not the reference is valid in this
case, though open to doubt since that question was not raised at any stage much
less in this Court. We proceed on the premise that the reference under Section
18 was valid.
As
stated earlier, the entire process has gone on in collusion. When we have
issued notice to the appellants as to what steps they have taken against the
officers who are responsible even for not filing the appeals or not contesting
the matter, an affidavit has been filed in which it was stated that
disciplinary action against the Land Acquisition Officer was taken and even the
counsel who appeared for the Jaipur Development Authority was in collusion and
steps were taken by laying a complaint before the Bar Counsel for professional
misconduct. We need not further dwell up on that fact but suffice it to state
that the acquisition proceedings have proceeded in collusion and, therefore,
they were not reflected the correct market value as is available in this case.
As seen in jai Ambe Co operative Housing Society's case. even their own sale
deeds under which they have purchased from one Bhagwan Singh, who was said to
be the original owner, were not even filed.
Under
these circumstances. We thought over the matter as to what would be the
appropriate course to be adopted in this case. We are of the view that instead
of relegating the matter again, we can ourselves decide the matter ON the basis
of the evidence on record. Accordingly, we have considered the case on merits.
It is
seen that the Land Acquisition Officer has awarded compensation at the rate of
Rs.7,500/- per bigha to the lands purchased by Mahavir Co-operative Housing
Society and Rs.5,000/- per bigha to the lands purchased by Jai Ambe
Co-operative Housing Society Ltd. Having regard to the facts and circumstances,
we are of the considered view that two times more than what was granted by the
Land Acquisition Officer would be the just compensation in the given
circumstances of the case. Accordingly, we determine the compensation to Jai Ambe
Co-operative Housing Society Ltd. at the rate of Rs 15 000/- per bigha and to
the lands of Mahavir Housing per Co-operative Society Rs.22,000/- per bigha.
As
regards the State of Rajasthan the Land Acquisition (Amendment) Act, 68 of 1984
was extended w.e.f. April 30 94. But the State Legislature had amended the Act
by Amendment Act 28 of 1987 w.e.f. August 1.1987. In Umed Industries & Land
Development Co. & Ors.V. state of Rajasthan & Ors. [(1995)2 SCC 563], a
Bench of two Judges had held that the Central Amendment Act 68 of 1984 would
apply from August 1,1987 to the acquisition in State of Rajasthan. It is seen
that in Mahavir Housing Co-operative Society's case, possession was delivered
on May 24, 1984 after the stay was vacated by the civil Court since the civil
Court granted stay of dispossession on October 23, 1983. Therefore, the
respondent-Society is not entitled to the interest prior to May 25, 1984.
Therefore, the decree as regards payment of interest from the date of the
notification till May 24, 1984 is clearly illegal. It is seen that since the
award, if the reference Court is dated-- June 15, 1990 claimants will be
entitled to interest from 25, 1984 at the rate of 6% per annum till August 1,
1987 and thereafter 15% per annum on the enhanced compensation till date of
deposit in the Court. As regards the solatium is concerned, they are entitled
to 30% solatium on the enhanced compensation. As regards the additional amount
under Section 23 A) is concerned, the claimants are not entitled to the
additional amount since the awards name to be passed by the reference Court on
October 12, 1981 and July 16, 1981 in Mahavir Housing Co-operative Society and
Jai Ambe Co-operative Housing Society Ltd. respectively.
In Prem
Nath Kapur and Anr. V. National Fertilizers Corpn. of India Ltd. and Ors.
[(1996) 2 SCC 711, considered the entire case law by a bench of three Judges in
paragraph 17 had held that the power to grant additional amount under section
23(1-A) and enhanced interest under the proviso to Section 28 and solatium at
30 per cent was due to amendments brought under Act 68 of 1984. Prior thereto
the court has no power or jurisdiction to grant them. Therefore, the additional
amount, the excess rate of interest or solatium at 30 per cent granted were
without jurisdiction are a nullity. The courts cannot correct the award or the
decree in exercise of the power under Sections 151 and 152 C.P.C.
This
Court has relied upon the Constitution Bench decision in Union of India v. Raghubir
Singh [(19863 ) 3 SCR 3161.
This
Court has reiterated the same principle in another recent judgment in Baj Shakriben
v. spl. L.A.O. [1996 (4) SCALE 636]. Therefore, objection would be raised in
execution under section 47. The award of the additional amount was one of
without jurisdiction and so a nullity.
It is
contended for the respondent in Mahavir Housing Co-operative Society's case, that
since the award was allowed to become final including grant of additional
amount under Section 23(1-A), it is not open to the review at a later date
since it is not one of initial lack of jurisdiction but an illegality has been
committed in awarding the additional amount. In support. thereof, learned
counsel relied upon a judgment of this Court in State of Punjab & Ors.vs. Mohinder
Singh Randhawa & Anr. [1993 supp.(1) SCC 49, paragraph 3} It is true that
in a case where the proceedings were properly conducted and the order was
allowed to become final, the matter may be construed to be an order of
illegality. When it is one of jurisdiction, this Court has repeatedly, in
plethora of precedents, had held that the courts have no jurisdiction to award
additional amount under Section 23(1-A) since the Collector had already passed
the award under Section 11 and the benefit of additional amount would be
confined to the period between the date of the notification under Section 4(1)
and the award under Section 11 when the proceedings were pending before him. In
this case, since we have already recorded the finding that the award became
final due to collusion by the officers and the claimants, the principle of
illegality in the award does not apply since fraud unravels the entire
procedure and makes the award a nullity.
The
appeals are accordingly allowed as indicated above, but in the circumstances, Without
costs. As regards structures awarded by the reference Court, they stand upheld.
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