Shri Khushia (Deceased) Through ... vs Union Of India (Uoi)
2004 Latest Caselaw 1259 Del

JUDGMENT

Badar Durrez Ahmed, J.

1. This is an application under Order 6 Rule 17 of the CPC read with Section 151 of CPC for amendment of Memorandum of Appeal. By this application, the appellant seeks to amend the Memorandum and to claim higher compensation @ Rs.50/- per Sq. Yds. We have heard the learned counsel for the parties. It is also stated in paragraph No.4 of the application that inadvertently the appellants undervalued their land at the time of filing of the appeal "for want of funds and due to ignorance". These reasons are vague. We see no reason to allow this amendment at this stage. Accordingly, the amendment application is rejected.

1. This appeal has been preferred against the judgments and/or orders passed by different Additional District Judges on 30.07.1970 and 18.07.1985 respectively. The lands of the appellants which are situated in village Mohammadpur Munirka, New Delhi, were sought to be acquired by a notification under Section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as 'the Act') issued on 13.11.1959. The declaration under Section 6 of the Act was made on 16.12.1965 and the award in respect of these lands was made on 30.12.1966 by the Land Acquisition Collector. According to the appellants, there were four separate field numbers belonging to the appellants which had been acquired. The numbers given in the award and the compensation awarded were as under:-

   S.No. Khasra No.   Area       Block        Rate per bigha
1     1136/855/2   7 bighas   16 biswas C   1600/- 
2     859         17 biswas   C             1500/-
3    719/2         3 bighas   15 biswas B   3000/-
4    1200/862      2 bighas   17 biswas B   3000/-
  
 

2. The appellants being dissatisfied with the award moved an application under Section 18 of the Act. In the said application, they specifically mentioned the Khasra numbers in respect of which they were aggrieved. Paragraph 3 of the application reads as under:-

"3. That the petitioners are owners of Khasra No.1136/805/2 (7 bigha 16 biswas), placed in Block 'C' , Khasra No.859 (17 Biswas), placed in Block 'B' and Khasra No.719/2 (3 bighas 15 biswas), placed in Block 'B', total 12 bigha 8 biswas, with equal shares, in Khasra No.109/410, items 162 and 163 respectively of the Naqsha Mutziman."

3. From a reading of the aforesaid paragraph, it is clear that, in the application itself, the Khasra No. 1136/855/2 was incorrectly mentioned as 1136/805/2. Furthermore, Khasra No. 1200/862 comprising 2 bighas 17 biswas was not mentioned in the application. Accordingly, in the reference forwarded by the Collector, this Khasra Number (ie., 1200/862) was also not mentioned. The field numbers that were mentioned were the first three referred to above. Thereafter, the Reference Court by an order dated 30.07.1970 assessed the market value of the lands in the following manner:-

   S.No.   Khasra No.  Area      Block        Rate per bigha
1      1136/805/2   7 bighas  16 biswas C  4500/-
2      859         17 biswas  C             8000/-
3      719/2        3 bighas  15 biswas B   4875/-
 
 

4. The appellants were also allowed 15% solarium and interest under Section 4(3) of the Land Acquisition (Amendment and Validation) Act, 1967 w.e.f. 13.11.1962 till the date of payment of the compensation by the Land Acquisition Collector. According to the appellants, as the field number 1136/805/2 was inadvertently mentioned in place of the correct field number, which was 1136/855/2, the same was required to be corrected. The area was the same. Accordingly, after the aforesaid judgment and/or order was pronounced, the appellants moved an application in 1971 before the District Judge for correction of the said Khasra Number. The same was allowed by the Additional District Judge by an order dated 31.07.1971. However, according to the appellants, as the rates assessed by the learned ADJ were as per rates of the land mentioned in the incorrect Khasra No., the appellants had asked the ADJ to re-assess the market value of the land relating to the correct field number. By an order dated 16.07.1973, the learned ADJ declined the request and, therefore, the appellants filed an application being CM (M) 341/1973 before this Court which was ultimately allowed by an order dated 10.09.1984 and the matter was remanded to the learned ADJ to assess the correct market value of field No.1136/855/2. Thereafter, the appellants appeared before the Additional District Judge and by an order dated 18.07.1985, which is the second of the orders impugned herein, the market value of the remaining field was re-assessed at Rs.10,000/- per bigha and interest was allowed @ 6% from the date of dispossession till the date of payment. solarium was allowed @ 15% and interest under Section 4(3) of the Land Acquisition (Amendment and Validation) Act, 1967 was also allowed from 13.11.1962.

5. It is the grievance of the appellants before us that while reassessing the market value for the field number which was corrected, the Reference Court ought to have also enhanced the market value for the two other field numbers which had already been assessed. In effect, he submitted that the market values of those field numbers also ought to have been reassessed. It is to be noted at this stage that this Court, when it passed the order dated 10.09.1984, remanded the matter to the learned Additional District Judge in respect of the field No. 1136/855/2 only. Therefore, the Court below was not required to reassess the market values of the other field numbers which had already been assessed and the same judge was not entitled to sit in appeal over his own decision.

6. Before this Court, the learned counsel for the appellant also submitted that there was another field number being 1200/862 admeasuring 2 bigha 17 biswas which had been left out by the Reference Court and that also ought to be included in this appeal. The learned counsel for the respondent contended that this field No. 1200/862 was not referred to at all in the application under Section 18 moved by the appellants. In support of his contention, the learned counsel for the appellants relied upon the decision of the Supreme Court in the case of the Ram Kumar and Ors. v. Union of India and Ors. : 43 (1991) DLT 540. We have examined that decision in detail and we find that the facts are entirely different. In that case, the application under Section 18 moved by the appellants specifically mentioned certain field Nos. and a reference was made to the lands as indicated in the decision of the Supreme Court in paragraph 5 of the said decision in the following words:-

"That apart in the schedule also some Khasra Nos. were mentioned specifically but in the end the words used were 'etc. etc.'."

It was also mentioned in the very same paragraph as under:-

"In ground No.9 the compensation to which the claimants/petitioners had mentioned that they were claiming compensation for the whole of their land @ Rs.20,000/- per bigha."

7. Thus, on the basis of the facts on record in that case, the Supreme Court was of the view as under:-

"Thus, from the perusal of the application under Section 18 of the Act Along with the schedule we are fully satisfied that the appellants were claiming an enhancement in the compensation in respect of the entire land acquired and there was no question of asking for a reference for a limited portion of land measuring 34 bighas and 2 biswas only."

8. In the present case, however, we find that the appellants had specifically asked for a reference for a limited portion of the land as indicated in paragraph 3 of the application which we have quoted hereinabove. To recapitulate, it was specifically mentioned in the application "that the petitioners are owners of Khasra No.1136/805/2 (7 bigha 16 biswas), placed in Block 'C' , Khasra No.859 (17 Biswas), placed in Block 'B' and Khasra No.719/2 (3 bighas 15 biswas), placed in Block 'B', total 12 bigha 8 biswas..." In fact, the total extent of the land in question was also specifically mentioned as being "12 bigha 8 biswas", which, is the total of the areas of the said three field numbers. Clearly, the fourth field number was excluded from the application filed under section 18 of the Act. We could have found some connection between the present case and the case before the Supreme Court, had an application for including the lands which were allegedly left out been made before the learned ADJ. No such application has been made and this ground is being taken for the first time in this appeal before us. We feel that the decision of the Supreme Court would not have any application to the facts and circumstances of this case.

9. Furthermore, in this case, we find that not only had the appellants not moved the Reference Court, but even before this Court when they approached this court in the CM (M) referred to above, they did not disclose or agitate this matter at all. In this view of the matter, we feel that that insofar as field No.1200/862 is concerned, the appellants are not entitled to raise any issue with regard thereto.

10. In this appeal, now, the only issue that remains is with regard to the compensation in respect of the three field Nos. which are before us. The correction in respect of field No.1136/855/2 has been made and enhancement has been done @ Rs.10,000/-. Insofar as the other two field Nos. are concerned, the rates prescribed are Rs.1500/- per bigha and and Rs.3000/- per bigha. All these lands belong to the appellants and they are situated in the same village and are adjoining. Accordingly, we see no reason as to why the rate of Rs.10,000/- per bigha should not be uniformally allowed in respect of the other two parcels of lands also. We fix the market value of the lands @ Rs.10,000/- per bigha in respect of all the three field Nos. The appellants will be entitled to this enhanced compensation Along with solarium @ 15% and interest @ 6% as indicated by the learned ADJ. The appeal is accordingly partly allowed with proportionate costs.