Delhi High Court

Union Of India vs Shaukat Rai(D) Through Lrs & Anr. on 13 October, 2009

Author: P.K.Bhasin

*             IN THE HIGH COURT OF DELHI AT NEW DELHI


%                     L.A. APPEAL NO. 738 OF 2008


+                                     Date of Decision: 13th October, 2009


#      UNION OF INDIA                                        ...Appellant
!                                 Through:   Mr. Sanjay Poddar, Advocate

                                  Versus
$      SHAUKAT RAI (D) THROUGH LRS & ANR.           ...Respondents
^                          Through: Ms. Ritu Singh Mann, Advocate


      CORAM:
*     HON'BLE MR. JUSTICE P.K.BHASIN
1.   Whether Reporters of local papers may be allowed to see the
     judgment?
2.   To be referred to the Reporter or not?
3.   Whether the judgment should be reported in the digest?
                              JUDGMENT

P.K.BHASIN, J:

The present appeal has been filed by the Union of India against the

order dated 19/10/2006 passed by the Additional District Judge in a

Reference under Section 18 of the Land Acquisition Act, 1894 in respect of

the Award no. 883 pertaining to the revenue estate of the village Mohd.

Pur Munirka, Delhi.

2. The relevant facts for the purpose of the present appeal may be

noted. The land of the respondents was acquired by the Government and

an award was passed in pursuance thereof and compensation was

awarded. Feeling dissatisfied by the quantum of compensation awarded, a

Reference under section 18 of the Land Acquisition Act was sought by the

claimants and the Land Acquisition Collector made the Reference to the

District Judge.

3. The Reference was however dismissed in default on 27/05/1976

due to non-appearance on behalf of the claimants. Upon an application

dated 4/8/1980 made by the respondents herein the reference petition

was restored on 6/8/87. (Copy of the order dated 6/8/87 was shown to

me by the counsel for the respondent during the course of hearing of this

appeal). While restoring the Reference, the Reference court also ordered

that no interest under Section 28 of the Land Acquisition Act would be

awarded to the claimants, in the event of their succeeding finally in

getting enhanced compensation and becoming entitled to get interest, for

the period from 27/05/1976 till 29/04/1986 during which the Reference

had remained dismissed. While deciding the Reference finally and

enhancing the compensation the learned Additional District Judge,

however, passed directions for payment of interest also as provided under

Sections 28 and 34 of the Land Acquisition Act even for the aforesaid

period of non-pendency of the Reference proceedings relying upon the

judgement of Supreme Court in "Khazan Singh (Dead) by LRs v. UOI", AIR

2002 SC 726, wherein the Supreme Court had held that a Reference made

by the Land Acquisition Collector cannot be dismissed in default and it is

the duty of the Court to answer the Reference even in the absence of

parties.

4. Feeling aggrieved with the Award of the Reference Court only to the

extent that it granted interest to the claimants even for the period when

the Reference was not pending because of its dismissal-in-default, the

Union of India has come up in appeal. Mr. Sanjay Poddar, learned counsel

for the appellant, submitted that the Reference Court had while restoring

the Reference, which was earlier dismissed in default due to non-

appearance in the matter on behalf of the claimants seeking enhancement

in compensation, specifically put a condition for restoration that the

claimants in the event of succeeding finally in getting enhancement in

compensation would not be entitled to get interest on the enhanced

amount for the period during which the proceedings were not pending

and that order was not challenged by the claimants and so the successor

Judge could not have ignored that order and awarded interest for the

period the Reference was not pending. Mr. Poddar submitted that the

direction for payment of interest in the impugned order could not have

been passed on the principles of res-judicata. It was also contended that

the claimants having not challenged the earlier order of the Court

disentitling them to get interest were estopped from claiming the same

subsequently in the same proceedings since in fact it was impliedly on

their representation to the Court that they would not claim interest if

their Reference was restored, that the Reference was restored by the

Court. It was also contended that even if the Reference could not have

been dismissed in default, as observed in the impugned order and the

Court could not have passed an order at the time of restoration of the

proceedings that the claimants seeking enhancement in compensation

would not be entitled to claim interest for the delayed payment even in

the event of their succeeding finally, the claimants having not challenged

that order can be said to have waived their right to get interest. In support

of these submissions Mr. Poddar also cited some judgments of the

Supreme Court which are reported as 2005 (7) SCALE 187, "Union of

India v. Pramod Gupta (D) by LRs and Ors."; AIR 1964 Supreme Court

993, "Arjun Singh v. Mohindra Kumar and others"; AIR 1960 Supreme

Court 941, "Satyadhyan Ghosal and ors. v. Smt. Deorajin Debi and

another". One judgment of this Court reported as 122 (2005) DLT 517,

"Chander v. Union of India" was also cited in addition to some unreported

decisions of this Court. Those decisions were given in RFA No.

517/1998(decided on 17/09/2007); RFA No. 623/1988, "Jagmohan and

others v. UOI and others" (decided on 25/07/2006); and in WP(C)

No.1282/1978, "The Radha Soami Satsang Beas and Anr. v. The Delhi

Administration and Anr." (decided on 15/10/2004).

5. On the other hand, learned counsel for the respondents supported

the impugned decision of the Reference Court awarding interest to the

respondents even for the period during which the Reference had

remained dismissed and reliance was placed on the decision of the

Supreme Court in "Khazan Singh (dead) by LRs. V. Union of India", AIR

2002 Supreme Court 726, which has been relied upon by the Reference

Court also while holding that the Reference could not have been

dismissed in default and so for the fault of the Court the claimants could

not be allowed to suffer by denying them the benefit of interest. Counsel

also cited another judgment of the Supreme Court in "Jet Ply Wood

Private Ltd. & Anr. v. Madhukar Nowlakha & Ors.", reported as JT 2006

(3) SC 60, wherein it was held that the Courts can act ex debito justitiae for

doing real and substantial justice.

6. After giving my thoughtful consideration to the rival submissions

and having gone through the judgments cited from both the sides I do not

find any merit in this appeal filed by the Union of India. The grant of

interest for the period during which the Reference had remained

dismissed by the Reference Court in the final award has been impugned

on the ground that the earlier order of the Reference Court passed while

restoring the Reference had attained finality and subsequently while

disposing of the Reference the learned Additional District Judge could not

have recalled that order of the predecessor Judge since the principles of

res-judicata get attracted in this fact situation. However, I do not find any

merit in this contention. At the time when the Reference came to be

restored by the Reference Court the question of grant or rejection of

interest to the claimants was not the point in dispute between the parties

and so there can be no question of applicability of the principles of res-

judicata. The two judgments of the Supreme Court cited by Mr. Poddar in

support of his contention regarding applicability of the principle of res-

judicata (AIR 1964 SC 993 and AIR 1960 SC 941) do not help the appellant

in any way since in those cases the question was not as to whether the

Court can or cannot rectify its own mistake to prevent injustice being

caused to one of the parties before it by invoking the maxim Actus curiae

neminem gravabit. The Reference Court has in the impugned judgment

relied upon the decision of the Supreme Court in Khazan Singh's case

(supra) wherein it has been observed that a Reference cannot be rejected

because of non-appearance of the parties and the Reference Court is

supposed to give its award one way or the other whether the parties

chose to appear in the matter or not. So, no fault can be found with the

decision of the Reference Court in following the said judgment of the

Supreme Court and preventing injustice being caused to the claimants

because of the fault of the Court itself by denying them the benefit of

interest on the enhanced compensation which invariably is awarded to

the successful claimants seeking enhancement in compensation awarded

by the Land Acquisition Collector. The following observations made in a

Full Bench decision of this Court in the case of Chander Vs. Union of

India(supra) which was cited by the learned counsel for the appellant

himself also supports the view taken by me:

"25. One has to bear in mind the distinction between inviting an order of the Court and the Court making an order of its own. In a case where the Court has made an order of its own of staying the proceedings, then the claimant should not be asked to suffer. In such a situation it was open to

the other side to move the higher forum with the request to proceed with the matter so as to avoid the payment of amount of interest for the interregnum. In the case of M/s. Lekh Raj and Co. v. Union of India and Others, Civil Appeal No. 5690 of 1985 decided on 24.3.1992, the Apex Court in a somewhat similar situation, where the Court had stayed proceedings of its own and refused to grant interest during the interregnum for the period 17.11.1968 to 23.7.1974 as there was a stay order, pointed out that, "Though the grant of interest under Section 28 of the Land Acquisition Act is discretionary with the Court but in the facts and circumstances of this case, we are of the view that the discretion has wrongly been exercised by the High Court. A dispute of apportion of compensation under Section 30 of the Act is the progeny of the Act and since the Court thought to stay the proceedings for enhancement of compensation, the act of the Court in these circumstances could not go to prejudice the accrual of interest on compensation which was kept retained by the State in the interval". It is in view of this the Apex Court allowed interest for the period for which it was declined. On behalf of the Union of India it was submitted that in the instant case it is not an act of the Court, but the claimant being not certain about his entitlement made an application to the Court, inter alia, requesting to stay the proceedings, with a further condition that he would not claim the amount of interest and under these circumstances the interest was denied and, therefore, the claimant is not entitled to claim any interest."

7. There is also no force in the argument of the learned counsel for the

appellant that the claimants were estopped from claiming interest for the

period during which Reference had remained dismissed because of their

having not challenged the order passed by the Reference Court at the

time of restoration of the Reference denying them the benefit of interest

in advance. Learned counsel for the appellant had not stated before me

that it was on the representation of the claimants that they would not

claim interest in future even if they succeed that Reference Court passed

the direction to that effect while restoring the Reference. So, there was no

question of principle of estoppel also coming in the way of the claimants

in claiming interest from the Reference Court when the stage to claim the

same reached.