Tule Ram vs Union Of India (Uoi) And Ors. ...
2006 Latest Caselaw 2165 Del

JUDGMENT

Sanjay Kishan Kaul, J.

1. The lands of the petitioners herein along with certain other people consisting of 26 sets of land were acquired under the provisions of the defense of India Act, 1962 (hereinafter referred to as the said Act). Compensation was offered to the land owners who were not satisfied with the compensation and thus sought arbitration in terms of Sub-section 2 of Section 37 of the said Act. The learned Additional District Judge who was appointed the arbitrator gave the award on 31.10.1969. Twelve sets of affected persons who were not satisfied filed a CM(M) under Article 227 of the Constitution of India challenging the said award. In terms of the judgment of the learned single Judge of this Court dated 05.01.1981 the award was set aside and remanded back for re-consideration on account of certain evidence not being included for consideration while making the award. It is thereafter periodically that the other owners of the land who had not challenged the award dated 31.10.1969 sought to get even their cases re-opened before the learned Additional District Judge which was not permitted and it is in view thereof that these petitions have been filed under Article 227 of the Constitution of India.

2. The question raised in these petitions is limited and arises from the plea of the learned Counsel for the petitioners that the land owners who had not approached this Court earlier by challenging the award dated 31.10.1969 are entitled to the benefit of the cases being re-opened and a fresh determination taking place in view of the fact that the award was common, cases were consolidated, common evidence was led and thus the provisions of Order 41 Rule 4 of the Code of Civil Procedure, 1908 (herein-after referred to as the said Code) would apply.

3. It has to be kept in mind that the procedure prescribed under the said Act is different from the one under the Land Acquisition Act, 1984 (hereinafter referred to as the 'LA Act') and is a complete Code by itself. Section 37 of the said Act which deals with compensation for acquisition reads as under:

Compensation for acquisition of requisitioned property -

1. The compensation payable for the acquisition of any property under Section 36 shall be -

a) the price which the requisitioned property would have fetched in the open market if it had remained in the same condition as it was at the time of requisitioning and been sold on the date of acquisition, or

b) twice the price which the requisitioned property would have fetched in the open market if it had been sold on the date of the requisition, whichever is less.

2) Where any person interested is aggrieved by the amount of compensation determined in accordance with Sub-section (1), he may make an application within the prescribed time to the Central Government or the State Government, as the case may be, for referring the matter to an arbitrator appointed in this behalf by the Central Government or the State Government, and the amount of compensation to be paid shall be such as may be determined by the arbitrator in accordance with Sub-section (1).

3) The provisions of Section 31 and Section 32 shall apply in relation to the acquisition of any property or the determination of compensation for such acquisition as they apply in relation to the requisitioning of any property or the determination of compensation for such requisitioning.

4) Where there is any dispute as to the title to receive the compensation or as to the apportionment of the amount of compensation, it shall be referred to an arbitrator appointed in this behalf by the Central Government or the State Government, as the case may be, for determination, and his decision thereon shall be final.

4. The aforesaid procedure thus prescribes that where a land owner is aggrieved by the compensation offered, an application has to be filed to the Central or the State Government for referring the matter to an arbitrator to be so appointed. There is no reference provided or an appeal thereafter. The remedy which does lie with the aggrieved party is only under Article 227 of the Constitution of India as held by the learned Single Judge of this Court in the judgment dated 05.01.1981.

5. In order to appreciate the plea of the learned Counsel for the petitioner, it is necessary to re-produce the provisions of Order 41 Rule 4 of the said Code, which reads as under:

One of the several plaintiffs or defendants may obtain reversal of whole decree where it proceeds on ground common to all Where there are more plaintiffs or more defendants than one in a suit, and the decree appealed from proceeds on any ground common to all the plaintiffs or to all the defendants, any one of the plaintiffs or of the defendants may appeal from the whole decree, and thereupon the Appellate Court may reverse or vary the decree in favor of all the plaintiffs or defendants, as the case may be.

6. The purport of the aforesaid is that in case of a common decree, the appellate court while considering the variation or reversal of the decree may grant benefit not only to the appellants but also to other parties who may be before the Court. learned Counsel for the petitioner has referred to para 4 of the award dated 31.10.1969 to state that all the cases had been consolidated and the evidence of the cases was recorded in one file. In fact over this factual matrix, there is no dispute. Thus the question is only whether in view of the same, the parties who never sought to challenge the award are entitled to the benefit of re-opening of their cases. It may be added herein that these parties had in fact accepted the enhanced compensation and appropriated the same.

7. Learned Counsel for the petitioner referred to the judgment of Amarsangji Indrasangji v. Desai Umed; AIR 1925 Bombay 290 where it has been observed that an appellate Court might reverse or vary a decree in favor of all the plaintiffs or defendants as the case might be in view of provisions of Order 41 Rule 4 of the said Code. Alternatively, under Order 41 Rule 33, there is also a power for the appellate Court to discharge an Order of the court below in its entirety, notwithstanding that only some of the defendants may have appealed. However, for that purpose cases should have been consolidated. In that case, it was found that no consolidation order was made while in the present case undisputedly consolidation order has been made. learned Counsel also referred to the judgment of the Patna High Court in Thakur Ram Janki and Ors. v. Jago Singh and Ors. AIR 1962 Patna 131 wherein a Division Bench of the Patna High Court has observed that when a decree against the defendants proceeds on ground common to all the defendants, Order 41 Rule 4 of the said Code can be taken advantage of by the non appealing defendant, even where any of the non appealing defendants dies after the passing of the decree appealed from but before the filing of the appeal and his legal representatives are not brought on the record either as appellants or respondents or where any of the non appealing defendants dies after the filing of the appeal and during its pendency.

8. Reference was also made to the judgment of the Rajasthan High Court in Narsingh Das v. Bhairon Dan . The essential ingredients for invocation of provisions of Order 41 Rule 4 of the said Code were set out as the requirement of the decree appealed from proceeding on any ground common to all the plaintiffs or to all the defendants. It was not necessary that all the grounds upon which the lower court proceeds should be common to all the parties. In such a case an appeal by one is virtually treated an an appeal by all though they they may not be parties to the appeal.

9. In Kumaraswami Gounder and Ors. v. D.R.Nanjapa Gounder (dead) and Ors. AIR 1978 Madras 288, it was held that in a second appeal arising out of a title suit, the common ground agitated before the Courts below was whether alienations by certain defendants were sustainable. The appeal was filed by only some of the alienees and it was held that the Appellate Court may vary the decree in favor of all as the appeal was treated as one filed for the benefit of all alienees.

10. In Lal Chand (dead) by LRs and Ors. v. Radha Kishan , there was a joint eviction decree against several defendants. One of the defendants died and the appeal was filed by the remaining defendants against the whole decree. It was held that the appeal would not abate qua the deceased party and the appellate court ought to have applied provisions of Order 41 Rule 4 of the said Code.

11. Learned Counsel for the respondents, on the other hand, has emphasised that the petitioners herein were not imp leaded as respondents before this Court when the judgment was passed on 05.01.1981. It was thus contended that the provisions of Order 41 Rule 4 of the said Code would not apply to the petitioners. Not only that, learned single Judge of this Court while exercising jurisdiction under Article 227 of the Constitution of India in setting aside the award had not passed any order that the award would be set aside qua also such parties like the petitioners who had sought not to challenge the award.

12. Learned Counsel for the respondents seeks to take advantage of the judgment of the Apex Court in Des Raj (deceased) through LRs and Ors. v. Union of India and Anr. which dealt with the LA Act. Lands of certain persons were acquired and the land owners sought a reference under Section 18 of the LA Act. The reference court enhanced the compensation amount. Appeals were filed before the High Court by some of the affected persons which was allowed by a common judgment. One of the appellants before the High Court thereafter approached the Supreme Court which in turn remanded the case back to the High Court with certain observations to re-determine the compensation amount. The other appellants before the High Court who had not challenged the decision of the High Court before the Supreme Court filed an application for review of the judgment of the High Court on the ground that the persons in whose case the Supreme Court had passed the order, owned land which was acquired by the same notification and which was similarly placed as that of the other appellants. Recourse was also sought to the provisions of Section 28A of the LA Act to claim compensation at an equal rate. The High Court dismissed the review application and thereafter the matter went to the Supreme Court. The Supreme Court dismissed the appeals and held that insofar as Section 28A of the LA Act is concerned, the benefit is available only to the parties who had not sought reference under Section 18 of the LA Act for enhancement of compensation. The Supreme Court also refused to exercise jurisdiction under Article 142 of the Constitution of India.

13. Learned Counsel has also referred to the judgment of the Apex Court in Babua Ram and Ors. v. State of UP and Anr. . The relevant discussion is at page 720. The Supreme Court held that persons who had not agitated the matter further in respect of the rate of compensation are governed by the doctrine of res judicata under Section 11 of the said Code which would operate against such persons. These persons have permitted a decree to become final which binds the parties and the States and thus operates as res judicata and such parties cannot fall back upon the rights and remedies under Section 28A(1) of the LA Act as the public policy envisaged that such parties cannot agitate their rights twice over.

14. On consideration of the submissions of the learned Counsel for the parties, I am of the view that the petitioners cannot claim the benefit of the judgment of this High Court dated 05.01.81 when the matter was remanded back for consideration of the learned Additional District Judge on account of certain evidence not being considered.

15. It has to be kept in mind that the provisions of Order 41 Rule 4 of the said Code really enabled the Appellate Court to grant benefits not only to the appellants but also to such of the respondents where the case is common between the appellants and the respondents. In the present case, while passing the judgment dated 05.01.1981 no such benefit was granted. This possibly arose on account of the fact that the other parties were not respondents before the Court. Be that as it may, the fact remains that no such power was exercised.

16. The provisions relating to acquisition under the said Act are different from the provisions under the LA Act. The introduction of Section 28A of the LA Act was a beneficial provision for the persons whose land was acquired. Even there the benefit has been held as admissible only to persons who had not sought a reference. There is no corresponding provision under the said Act. This is apparent from the judgment of the Apex Court in Des Raj (deceased) through LRs and Ors' case (supra).

17. The Apex Court in Babua Ram and Ors. case (supra) has clearly elucidated that even if land acquired is in the same area which is similarly situated, the availability of benefit of higher compensation would depend on how the matter was prosecuted. If a party is satisfied with the amount of compensation it has received and does not want to agitate the matter further and appropriates the compensation, the whole matter cannot be re-agitated after decades merely because some of the other parties deem it appropriate to agitate the matter further and succeed. The principle of res judicata would thus stand against the petitioners in such a case.

18. Insofar as the petitioners herein are concerned, the matter stood settled as far back as 31.10.1969. The matter has been sought to be re-agitated commencing from a period of fifteen years and upwards of the said decision only on the ground that some of the persons had succeeded in their petition in terms of the judgment dated 05.01.1981. The petitioners cannot take benefit of the same.

19. In view of the aforesaid, it cannot be said that the courts below have fallen into a patent or jurisdictional error while declining to entertain the re-opening of the cases on behalf of the parties other than the sets in respect of which the judgment was rendered by the High Court.

20. Petitions are dismissed leaving the parties to bear their own costs.