Pralhad & Ors. Vs.
State of Maharashtra & ANR.  INSC 746 (15 September 2010)
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.1745-1753 OF 2004 Pralhad
& Ors. ...Appellant(s) - Versus - State of Maharashtra and another
relevant facts common in these appeals are that a preliminary notification
dated 5.03.1983 was issued under Section 4 of the Land Acquisition Act, 1894 (hereinafter
referred to as, `the Principal Act') in respect of the land at Ghonga Tank in
village Ghonga, Taluk Barshitakli, Akola, Nagpur. It was followed by a
notification 1 under Section 6 of the Principal Act on 28.07.1983.
Land Acquisition Collector passed his award on 1.03.1984, awarding Rs.3600/-
per acre for the acquired lands. Landowners, being aggrieved, filed a Reference
application under Section 18 of Act on 5.04.1984, for enhancement of
the Land Acquisition (Amendment) Act, 1984, being Act 68 of 1984 (hereinafter
`the Amendment Act') received the assent of the President on 24.09.1984 for
amending the Principal Act. The amendment was made applicable to every pending
proceeding for acquisition of any land under the Principal Act and which were
pending on 30.04.1982.
25.04.1985, the Additional District Judge, Akola, in the Reference Proceeding
2 enhanced the compensation to Rs.13,000/- per acre, with solatium at the rate
of 30% as per the amendment and interest at the rate of 9% p.a. from the date
State of Maharashtra challenged the award of the Reference Court in the High
Court of Bombay (Nagpur Bench), Nagpur. The landowners did not file any appeal
or cross-objections against the judgment of the Reference Court, but filed
applications under Order 41, Rule 33 of the Civil Procedure Code (for short
"CPC") claiming additional compensation at the rate of 12% p.a. on
the market value for the period commencing from the date of publication of the
award and interest at 9% p.a. on enhanced compensation from the date of taking
possession for a period of one year and at the rate of 15% for the further 3
period, in view of the amendment to the Principal Act.
High Court, by judgment and order dated 9.02.1999, dismissed the appeals of the
State of Maharashtra as well as the applications filed by the landowners under
Order 41, Rule 33 of CPC. The High Court relied on various judgments of this
Court and held that it had no jurisdiction to award additional benefits under
Section 23 (1A) of the Land Acquisition Act, 1894, while confirming the award
of the Reference Court.
present appeals are filed by the landowners before this Court, challenging the
dismissal of their application under Order 41, Rule 33 of the CPC by the High
basic issue before the High Court was whether in absence of an appeal or cross-
objection from the claimants, is it permissible to grant additional benefits to
the appellants as provided in Section 23 (1A) of the Amendment Act?
benefit which is given to the landowners under the amendment provision, which
came by virtue of Section 15 of Act 68 of 1984, is now Section 23 (1A) of the
Principal Act. Section 23 (1A) of the Principal Act runs as under:
addition to the market value of the land, as above provided, the Court shall in
every case award an amount calculated at the rate of twelve per centum per
annum on such market value for the period commencing on and from the date of
the publication of the notification under section 4, sub-section (1), in
respect of such land to the date of the award of the Collector or the date of
taking possession of the land, whichever is earlier.
computing the period referred to in this sub-section, any period or periods
during which the 5 proceedings for the acquisition of the land were held up on
account of any stay or injunction by the order of any Court shall be excluded.]
(2) In addition to the market-value of the land as above provided, the Court
shall in every case award a sum of [thirty per centum] on such market-value, in
consideration of the compulsory nature of the acquisition.
benefit of the aforesaid amended provision to the landowners was provided by
Section 30 (1) of Act 68 of 1984. The said Section 30, which was known as
transitional provision, read as under:
Provisions- (1) The provisions of sub-section (1-A) of section 23 of the
Principal Act, as inserted by clause (a) of section 15 of this Act, shall
apply, and shall be deemed to have applied, also to, and in relation to,- (a)
every proceeding for the acquisition of any land under the Principal Act
pending on the 30th day of April, 1982 [the date of introduction of the Land
Acquisition (Amendment) Bill, 1982 in the House of the People], in which no
award has been made by the Collector before that date;
6 (b) every
proceeding for the acquisition of any land under the Principal Act commenced
after that date, whether or not an award has been made by the Collector before
the date of commencement of this Act.
(2) The provisions of
sub-section (2) of section 23 and section 28 of the Principal Act, as amended
by clause (b) of section 15 and section 18 of this Act respectively, shall
apply, and shall be deemed to have applied, also to, and in relation to, any
award made by the Collector or Court or to any order passed by the High Court
or Supreme Court in appeal against any such award under the provisions of the
Principal Act after the 30th day of April, 1982 [the date of introduction of
the Land Acquisition (Amendment) Bill, 1982, in the House of the People] and
before the commencement of this Act."
said transitional provision came up for consideration before this Court in
several judgments and there was some divergence of judicial opinion which was
ultimately settled by the Constitution Bench Judgment of this Court in the case
of K.S. Paripoornan vs. State of Kerala and others, (1994) 5 SCC 593.
the case of Paripoornan (supra) the majority judgment was rendered by Justice
S.C. Agrawal. In rendering the majority judgment their Lordship held that the
decision of this Court in Union of India vs. Zora Singh, (1992) 1 SCC 673, is
not correct and in paragraph 70 of the judgment the learned Judges held that
the Parliament has given a clear indication of its intention in Section 30 (1),
which was a transitional provision. The learned Judges held that since a clear
intention has been given in Section 30(1), there is no scope for any speculation
about the parliamentary intention by reading Section 23(1A) in isolation from
Section 30(1) of the Act.
(See para 70)
learned Judges also noted the purpose of a transitional provision in the
statute 8 and referred to Francis Bennion on Statutory Interpretation and also
to Thornton on Legislative Drafting. Relying on those treaties on
interpretation, this Court held that Section 23 (1A) and Section 30 are
interconnected (See para 73, page 639).
paragraph 74 at page 639 and 640 of the report this Court, on a conjoint
reading of Section 23(1A) with Section 30(1), held as follows:
"...A perusal of
sub-section (1) of Section 30 of the amending Act shows that it divides the
proceedings for acquisition of land which had commenced prior to the date of
the commencement of the amending Act into two categories, proceedings which had
commenced prior to 30-4-1982 and proceedings which had commenced after
30-4-1982. While clause (a) of Section 30(1) deals with proceedings which had
commenced prior to 30-4-1982, clause (b) deals with proceedings which commenced
after 30-4-1982. By virtue of clause (a), Section 23(1-A) has been made
applicable to proceedings which had commenced prior to 30-4-1982 if no award
had been made by the Collector in those proceedings before 30-4-1982. It covers
(i) proceedings which 9 were pending before the Collector on 30-4-1982 wherein
award was made after 30-4-1982 but before the date of the commencement of the
amending Act, and (ii) such proceedings wherein award was made by the Collector
after the date of the commencement of the amending Act.
30(1)(b) covers (i) proceedings which had commenced after 30-4-1982 wherein
award was made prior to the commencement of the amending Act..."
subsequent judgment, in Prem Chand and others vs. Union of India, AIR 2010 SC
1308, following the ratio in Paripoornan (supra) this Court granted relief to
the claimants in accordance with the provision of Section 23(1A) of the Act. In
that case the land acquisition commenced on 22nd of March 1978 and the award
was passed on 25th February 1983.
in mind the aforesaid declaration of law, this Court holds that in the instant
case the acquisition proceeding commenced with notification under Section 4 10
which is dated 5.3.1983 and the award was passed on 1.3.1984. Therefore, the
landowners who were affected by the instant acquisition proceeding were
entitled to the benefit of the amending provision under Section 23(1A) in view
of the ratio in Paripoornan (supra).
the only question which remains is whether the landowners, without filing an
appeal before the High Court from the order of the Reference Court, are
entitled to the aforesaid benefit on the basis of their application under Order
41 Rule 33 of CPC.
provision of Order 41, Rule 33 of CPC is clearly an enabling provision, whereby
the Appellate Court is empowered to pass any decree or make any order which
ought to have been passed or made, and to pass or make such further or other
decree or order 11 as the case may require. Therefore, the power is very wide
and in this enabling provision, the crucial words are that the Appellate Court
is empowered to pass any Order which ought to have been made as the case may
require. The expression `Order ought to have been made' would obviously mean an
Order which justice of the case requires to be made. This is made clear from
the expression used in the said Rule by saying `the court may pass such further
or other Order as the case may require.' This expression `case' would mean the
justice of the case. Of course, this power cannot be exercised ignoring a legal
interdict or a prohibition clamped by law.
fact, the ambit of this provision has come up for consideration in several
decisions of this Court. Commenting on this power, Mulla (CPC, 15th Edition,
pg. 2647) 12 observed that this Rule is modelled on Order 59, Rule 10(4) of
the Supreme Court of Judicature of England, and Mulla further opined that the
purpose of this rule is to do complete justice between the parties.
Vanarsi vs. Ramphal, AIR 2004 SC 1989, this Court construing the provisions of
Order 41 Rule 33 of CPC held that this provision confers powers of the widest
amplitude on the appellate court so as to do complete justice between the
This Court further
held that such power is unfettered by considerations as to what is the subject
matter of appeal or who has filed the appeal or whether the appeal is being
dismissed, allowed or disposed of while modifying the judgments appealed
against. The learned Judges held that one of the objects in conferring such
power is to avoid inconsistency, inequity and inequality in granting reliefs
and the overriding consideration is achieving the ends of justice. The learned
Judges also held that the power can be exercised subject to three limitations:
firstly, this power cannot be exercised to the prejudice of a person who is not
a party before the Court; secondly, this power cannot be exercised in favour of
a claim which has been given up or lost; and thirdly, the power cannot be
exercised when such part of the decree which the party has been permitted to
become final by a party is reversed to the advantage of that party.
(See para 15 at pg.
1997). It has also been held by this Court in Samundra Devi and others vs.
Narendra Kaur and others, (2008) 9 SCC 100 (para 21) that this power under
Order 41, Rule 33 of CPC cannot be exercised ignoring a legal interdict.
the instant case, the right of the landowner to receive the benefit under
section 23(1A) of the Principal Act is legally permissible in view of the
majority decision in Paripoornan (supra). Therefore, the law declared by this
Court in Paripoornan (supra) is binding on the High Court under Article 141 of
the Constitution and High Court is bound to follow the same, especially when an
application has been made by the landowner under Order 41 Rule 33 of CPC.
view of the aforesaid interpretation given to Order 41 Rule 33 of CPC by this
Court, we are of the opinion that the High Court denied the relief to the
appellants to which they are entitled in view of the Constitution Bench
decision in Paripoornan (supra), by taking a rather restricted and narrow view
of the scope of Order 41 Rule 15 33 of CPC and also on a misconstruction of
the ratio in Paripoornan (supra).
the reasons aforesaid, this Court holds that the appellants are entitled to the
benefit of the amended provision of Section 23 (1A) of the Principal Act in
view of the clear law laid down by this Court in Paripoornan (supra). The
appeals are allowed to the extent indicated above. No order as to costs.