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