Himachal Pradesh High Court
Shri Pratap Singh vs Illa Chowdhary And Others 1 on 20 November, 2023
Bench: Mamidanna Satya Rao, Ajay Mohan Goel
In the High Court of Himachal Pradesh at Shimla
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R.F.A.No.58 of 2018 a/w connected mattes
judgment reserved on 13.10.2023
Pronounced on 20.11.2023
.
______________________________________________________
Between:
Shri Pratap Singh ... Appellant
And
State of H.P. through District Collector,
Sirmaur at Nahan and others ... Respondents
Between:
r to
---------------------------------------------------------------------------------
R.F.A.No. 9 of 2019
State of H.P. through District Collector,
Sirmaur at Nahan and others ... Appellants
And
Smt.Neerja , daughter of Shri Kanti Swaroop
and others ... Respondents
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C.M.P.M.O No.482 of 2018
Between:
Shri Pratap Singh ... Petitioner
And
District Collector, Solan and others ... Respondents
----------------------------------------------------------------------------------
C.W.P.NO.1359 of 2018
Between:
Shri Pratap Singh ... Petitioner
And
Union of India and others ...Respondents
Coram:
Hon'ble Mr. Justice M.S. Ramachandra Rao, Chief Justice.
Hon'ble Ms. Justice Ajay Mohan Goel, Judge.
Whether approved for reporting? Yes
For the applicant/petitioner: Mr. Amar Vivek Aggarwal, Mr.
Kulwant Singh Katoch, Mr. Mehta
Raghuvindra Singh and Mr. Sai
Anukaran, Advocates, for the
applicant/appellant/petitioner.
For the respondents : Mr. Anup Rattan, Advocate General
.
with Mr. Rakesh Dhaulta Mr. Pranay
Pratap Singh, Additional Advocate
Generals, Mr. Arsh Rattan and Mr.
Sidharth Jalta, Deputy Advocate
General, for the respondents-State.
Mr. Sudhir Thakur, Sr. Advocate with
Mr. Karun Negi and Mr. Somesh
Sharma, Advocates, for respondents
No. 4 to 9 in RFA No. 58 of 2018 and
r for respondents No. 1 to 6 in RFA
No. 9/2019.
Mr. R.L. Sood, Senior Advocate with
Mr. Arjun Lall and Ms. Sanjeevani
Sood, Advocates, for respondent no.
10 in RFA no. 58 of 2018 and for
respondents no. 9 in CWP No. 1359
of 2018 and for respondents no.8 in
RFA no. 9 of 2019.
Mr. Kulwant Singh Katoch,
Advocate, for respondent No. 7 in
RFA No. 9 of 2019
Mr. Rakesh Thakur, Advocate, for
respondent no. 4 in CWP no. 1359 of
2018.
M.S. Ramachandra Rao, Chief Justice.
Brief introduction
The subject matter of the acquisition and the persons interested
therein
The land comprised in Khata/Khatauni No.35/36 min, Khasra
No.33/1,34/1,35/1,35/3, 36/1,36/3, 381/39/1, 40/1, 41/1, 42/1,
107/1,114/1, 115/1,89/1, 90/1,92/1, Kitta 16 measuring 7-3 bighas
( for short 'the subject property') in Mauja Shamti, Tehsil and
District Solan is the subject matter of this litigation.
2) This land was acquired by the State of Himachal Pradesh for
.
construction of "Solan-Rajgarh Road Bye-Pass Road" by issuing a
notification dt.17.12.2010 under Section 4(1) of the Land
Acquisition Act,1894 ( for short "the Act") along with certain other
lands.
3)
The subject property belonged to Smt.Ram Dei, widow of late
Sh.Ram Rattan. She died.
4) One Shri Pratap Singh ( hereinafter referred to as "PS") was her
adopted son.
5) One Shri Kanti Swaroop Mehta ( hereinafter referred to as "KS")
was her grand son through her daughter.
6) In fact PS and KS are natural brothers and sons of Late Padam
Singh.
7) KS has six daughters by name Smt.Neerja, Smt.Ruby, Smt.Kavita,
Smt.Sangeeta, Smt.Meenakshi and Smt.Sunakshi. ( collectively
referred to henceforth as "six daughters of KS")
8) All the above 8 persons (KS,PS and the six daughters of KS ) were
treated as "persons interested" by the Land Acquisition Collector,
HPPWD South Zone Winter Field, Shimla, HP (for short 'the Land
Acquisition Collector") qua the subject land.
The award of the Land Acquisition Collector
9) Award No.3 of 2013 was passed on 17.8.2013 by the Land
Acquisition Collector in Reference No.11 ADJ-II/4 of 2014. He
granted compensation @ Rs.30,54,040/- per bigha. While dealing
with aspect of apportionment of compensation, he stated in the
Award that "Apportionment of the compensation among the persons
.
interested and entitled to receive the same will be strictly according
to their recorded share in the Record of Rights."
The reference under Section 18 of the Act for enhancement of
compensation
10) On 23.9.2013, an application (Ex.AE-20) was filed seeking
reference under Section 18 of the Act before the Land Acquisition
Collector seeking more compensation than what was awarded by
him in his Award.
11) This application is signed by KS and also bears a signature
purporting to be that of PS, but PS denies he signed it and contends
that his signature thereon is forged. The application does not contain
the signatures of any of the six daughters of KS.
12) Yet they have been treated as "persons interested" by the Land
Acquisition Collector in seeking reference.
13) In the said application seeking reference under section 18 of the Act,
it was stated that this property belonged to Smt.Ram Dei and she
had executed a Will dt.11.2.1993 registered with the Sub-Registrar,
Kandaghat on 27.2.1993 vide Doc.No.12 at pg.50 ( Marked as Ex.A
in the Reference Court by KS), and as per the said Will, the
applicants were entitled to compensation of land in equal shares;
that the entire land was mutated as per Will dt.27.2.1993; and there
is no objection of any of the petitioners with respect to said Will. It
was also stated that the said Will was produced before the Land
Acquisition Collector for distribution of compensation.
14) PS does not accept this statement and states that qua the subject
.
property, he had exclusive 40% share, that the six daughters of KS
together had 60% share and KS does not have any share.
15) The Land Acquisition Collector made the reference vide File
No.LAC/SLN/Court- Case/-18/99 on 12-12-2013 under Section 18
of the Act naming only PS and the six daughters of KS. Notably, he
did not include the name of KS in it and forwarded it to the District
Judge, Solan.
16) Annexed to this was a statement titled "Information required under
Section 19 of Land Acquisition Act..." It mentioned that the six
daughters of KS together had 3 shares and PS had 2 shares. There is
no mention of KS on this sheet too.
17) So KS was not made a party to the reference by the Land
Acquisition Collector.
18) Curiously the Additional District Judge-II, Solan ( for short "the
Reference Court"), to whom the case was made over by the
District Judge, treated KS also as a party to this reference and
numbered it as Reference Petition No.11 ADJ-II/4 of 2014, which
he could not have done.
19) These facts have been culled out from the record of the Reference
Court.
The Judgment dt. 28.12.2017 of the Reference Court in the Reference
20) The Reference Court in it's judgment dt.28.12.2017 enhanced the
.
compensation to Rs.1,49,22,000/- per bigha from Rs.30,00,000/-
per bigha granted by the Land Acquisition Collector ; and for the 7-
3 bighas of land acquired, it awarded Rs.10,66,92,300/- along with
all statutory benefits such as solatium , additional market value and
interest. As per the judgment of the Reference Court, PS, KS and the
six daughters of KS all get equal shares i.e., 1/8th share each.
The RFAs filed in this Court challenging the said judgment.
21) RFA No.58 of 2018 is filed by PS under Section 54 of the Act
challenging the judgment passed on 28.12.2017 by the Reference
Court in Reference Petition No.11ADJ-II/4 of 2014 made under
Section 18 of the said Act.
22) PS interalia contends:
(a) that the market value of the subject land is more than
Rs.30,00,000/- per biswa;
(b) that there was an amended reference made under Section 18
and 30 of the Act by the Land Acquisition Collector in Ref.
NTLO. 751-54 dt.22-12-2017 to the District Judge, Solan, but
even after this was made over to the Reference Court, the said
Court did not club it with the previous reference File
No.LAC/SLN/Court- Case/-18/99 dt.12-12-2013 under Section
18 of the Act already numbered by him as Reference Petition
No.11ADJ-II/4 of 2014; and the Reference Court erred in
granting lesser compensation of only 1/8 share to PS (though
he should have got 2/5 share), giving 1/8 share to KS (though
he is not entitled to any share) and giving the six daughters of
KS also 1/8 share (instead of 3/30 =1/10 share each) and
.
(c) that there was tampering of the Award No.3 of 2013
dt.17.8.2013 in the office of the Land Acquisition Collector;
that a Rapat No.682 dt.22.4.2013 was secured by KS amending
the Record of Rights behind the back of PS giving one share in
the subject land to KS (which he was not entitled to as per the
regd.Will dt.27.2.1993 of Smt.Ram Dei); and KS was wrongly
allotted a share by the Reference Court in the compensation,
and PS's share of compensation was wrongly assessed by the
Reference Court at Rs.4,26,76,920/- and it ought to be
Rs.17,16,00,000/-.
PS thus seeks the difference of Rs.12,89,23,080/- from the State
in this RFA.
23) During the pendency of the matter in the Reference Court, PS had
filed CMA No.85ADJ-II/6 of 2016 under Or.1.Rule 10 CPC r/w
Section 30 of the Act to delete the name of KS (respondent no.4 in
the said application/ respondent no.8 in the Reference) from the
array of parties raising certain grounds. This application came to be
rejected on 5.9.2017 by the Additional District Judge-II, Solan
(Ex.AE27) .
24) PS also filed another application No.54 ADJ-II/6 of 2017 in the
above Court under Or.1 Rule 3 & 10 CPC r/w Section 151 CPC to
transpose him as Respondent No.4 in the Reference. This
application also was rejected on 18.11.2017 by the above Court.
( Ex.AE.28)
25) These two orders are also challenged in the RFA along with the
.
judgment dt.28.12.2017 in the Reference Petition No.11ADJ-II/4 of
2014 purportedly invoking Section 105(2) CPC.
26) CMP.No.9541 of 2018 was filed by PS under Or.41 R.27 CPC by
PS to receive additional evidence in RFA No.58 of 208. This
application is decided by a separate order passed today and has been
allowed. Thus Ex.AE1 to 46 have been marked as additional
evidence.
27) Challenging the same judgment passed on 28.12.2017 by the
Reference Court in Reference Petition No.11ADJ-II/4 of 2014, the
State of Himachal Pradesh and two others filed RFA No. 9 of 2018.
Consideration by the Court
28) The following are the reasons why KS could not have been granted
a share in compensation by the Reference Court.
First Reason
29) Vide File No.LAC/SLN/Court- Case/-18/99, on 12-12-2013,
Reference was made by the Land Acquisition Collector to the Civil
Court of claims of PS and six daughters of KS only. This was
numbered by the Reference Court as Reference Petition No.11 ADJ-
II/4 of 2014.
30) There was no reference under Section 18 of the Act to the Reference
Court of the claim of KS at all by the Land Acquisition Collector to
the Civil Court in the said Reference dt.12.12.2013.
31) The above fact has come to light on perusal of the record of the
Reference Court forwarded to this Court by it.
32) The Reference Court i.e., Additional District Judge-II, Solan
.
therefore could not have treated KS as a party to the Reference and
also granted compensation to him in the impugned judgment
dt.28.12.2017 as it was bound by the Reference made by the Land
Acquisition Collector.
33)
This is because, as held in the decision of the Supreme Court in
Shyamali Das vs. Illa Chowdhary and others 1, a Land Acquisition
Judge derives jurisdiction from the order of reference and he is
bound thereby. It held:
"19. The Act is a complete code by itself. It provides for
remedies not only to those whose lands have been acquired but
also to those who claim the
awarded amount or any apportionment thereof. A Land
Acquisition Judge derives its jurisdiction from the order of
reference. It is bound thereby. His jurisdiction is to determine
adequacy or otherwise of the amount of compensation paid
under the award made by the Collector. It is not within his
domain to entertain any application of pro interesse suo or in
the nature thereof...."
( emphasis supplied)
34) This principle was also reiterated in Prayag Upnivesh Awas Evam
Nirman Sahkari Samiti Ltd. v. Allahabad Vikas
Pradhikaran2wherein the Supreme Court had held:
"7. It is well established that the Reference Court gets
jurisdiction only if the matter is referred to it under Section 18
or 30 of the Act by the Land Acquisition Officer and that the
1(2006) 12 SCC 300
2(2003) 5 SCC 561
civil court has got the jurisdiction and authority only to decide
the objections referred to it. The Reference Court cannot widen
the scope of its jurisdiction or decide matters which are not
referred to it."
.
(emphasis supplied)
35) There is no explanation coming forth from the impugned judgment
of the Reference Court as to how KS was held entitled to claim a
share in compensation when his name was not mentioned in the
Reference made by the Land Acquisition Collector.
36) The Counsel for KS also could not offer any valid explanation as to
how, in the absence of any reference of claim of KS made under
Section 18 of the Act by the Land Acquisition Collector to the Civil
Court in the Reference dt.12.12.2013, KS could have been granted
any share in land compensation at all.
Second Reason
37) There is no dispute that a Will dt.11.2.1993 (Ex.A marked in
Reference Court by KS) was executed by Late Ram Dei, widow of
Ram Rattan containing several bequests and it had also been
registered with office of Sub-Registrar, Kandaghat.
38) KS, in his application dt.23.9.2013 (Ex.AE20) seeking reference
under Section 18 of the Act, relies on this Will in support of equal
claims of compensation made in the said application. He also stated
in paragraph (c) of the said application on page 3 that the said Will
was produced before the Land Acquisition Collector for distribution
of compensation. He also adverted to the said Will in his affidavit
filed in lieu of Chief Examination on 18.4.2015 in the Reference
Court.
39) This Will was marked as Ex.A in the Reference Court by KS when
.
he deposed on behalf of the claimants as PW1.
40) The six daughters of KS are also parties to the Reference and they
also had not disputed the existence, execution or contents of the said
Will.
41)
Thus since KS and PS and the six daughters of KS admit the said
Will, and the State did not contest the same., the certified copy of
the said Will filed along with CMP.No.9541 of 2018 is also taken on
record as additional evidence as Exhibit AE-2.
42) PS contends that in the said Will dt.11.2.1993 of Smt.Ram Dei,
other property was given to KS and not the subject property, and
that in the subject property, PS gets 40% and the six daughters of
KS would together get 60%.
43) Clauses 5 , 6, 7 and 8 of the Will dt.11.2.1993 are relevant and they
state as under:
"5. That Sh.Kanti Swaroop Mehta, son of Sh Padam Singh would get
the land comprised in Khasra No.209/185/164/146/3/3/3/2 and the
balance of Khasra No.169/148/4/4 and Khasra No.240/187/172/122/2
situated in Village Shamtti, Teh and District Solan HP.
6. That Smt.Neerja Chauhan, wife of Sh Lokender Chauhan, Miss Rubi
Mehta, Miss Kavita, Miss Sangeeta, Miss Meenakshi and Miss
Sunakshi, daughters of Sh.Kanti Swaroop Mehta, my maternal grand
son, would get 6/10 of remaining land in equal share.
7. That Sh Pratap Singh my adopted son would get 4/10 share of the
remaining property i.e., the property remaining after deducting the
properties mentioned in para No.1 to 5, so the persons mentioned in
para 6 and Sh Pratap Singh would divide the remaining property in
the above referred ratio i.e., 6/10 for the persons mentioned in para 6
and 4/10 for Sh Pratap Singh.
8. That the compensation amount under the Land Acquisition Act for
.
the acquisition of the land for construction of Solan Rajgarh Road
whether received from the office of the Land Acquisition Collector,
District Judge or the High Court would be divided equally amongst the
six daughters of Sh K.S.Mehta mentioned in para 6, Sh. K.S.Mehta and
Sh Pratap Singh in equal shares. Thus all 8 persons will get 1/8 th share
of such compensation."
( emphasis supplied)
44) As stated above, in the instant case, the land comprised in
Khata/Khatauni No.35/36 min, Khasra No.33/1,34/1,35/1,35/3,
36/1,36/3, 381/39/1, 40/1, 41/1, 42/1, 107/1,114/1, 115/1,89/1,
90/1,92/1, Kitta 16 measuring 7-3 bighas in Mauja Shamti, Tehsil
and District Solan is the subject matter of acquisition.
45) But this property had not been bequeathed to KS as per the
recitals in the Will.
46) The subject land falls within the description of "remaining
property" in clause 7 in which PS has 4/10 share and the six
daughters of KS have 6/10 share.
47) Also the acquisition in the instant cases was through a notification
issued under Section 4(1) of the Act on 7.12.2010 for "Solan-
Rajgarh ByePass Road" (Ex.AE-12). The acquisition referred to in
clause 8 of the Will was for "Solan Rajgarh Road" ( a different road)
and had already happened by the date of execution of the Will i.e.,
by 11.2.1993, and was obviously of a different parcel of land
belonging to Smt.Ram Dei, but not the subject land, which was
admittedly notified for acquisition much later on 7.12.2010.
48) So we accept the plea of PS that in the subject land, KS did not get
any share under the Will dt.11.2.1993, and he was given share in
.
para 5 of the Will in a different parcel of land in Village Shamtti.
49) The Reference Court thus erred in relying on the deliberate
misrepresentation made by KS in the application dt.23.9.2013
(Ex.AE-20) made to the Land Acquisition Collector seeking
Reference, and also the false representation in the affidavit in lieu of
Chief Examination filed by him that he was entitled to a share
therein on the basis of the said Will, and granting him a share in the
compensation though he was not entitled to the same as per the said
Will. Though there is signature of PS also in the said application,
since it is claimed that he is illiterate, that KS was looking after the
litigation and PS had trusted him, and we see no reason to disbelieve
the same, no estoppel can be pleaded by KS against PS in this
regard.
Third Reason
50) There is yet another reason why KS could not have got share in
compensation.
51) While dealing with aspect of apportionment of compensation, the
Land Acquisition Collector in Award No.3 of 2013 dt.17.8.2013
stated: "Apportionment of the compensation among the persons
interested and entitled to receive the same will be strictly according
to their recorded share in the Record of Rights."
52) According to PS, Mutation no.257 dt.30.10.1995 (Jamabandi)
(Ex.AE-3) was made in the Revenue record on the basis of the Will
dt.27.2.1993 for the subject land. This exhibit does not show that
KS had any share in the subject land as per mutation record.
53) Counsel for KS however contended that a Rapat no.682 dt
.
22.4.2013 (Ex.AE-15) was incorporated upon an order Ex.AE-14
dt.11.4.2013 passed by Assistant Collector 1 st Grade cum Tehsildar,
Solan, H.P after KS made an application Ex.AE-13 on 10.4.2013
claiming equal share in the subject land as per the Will dt.27.2.1993.
land was recognised.
r to
According to him, in this Rapat, equal share of KS in the subject
54) However Section 38 and 46 of the Himachal Pradesh Land Revenue
Act, 1954 require entries in record of rights to be done only if there
is a civil suit decree for the said purpose.
55) In Raj Kumar and others v. State of H.P and others 3, this Court
had held that from a plain reading of Section 38 of the Himachal
Pradesh Land Revenue Act, 1954, entries can be altered on the basis
of a decree or order binding inter se between the parties.
56) Same view has also been taken by the High Court of Punjab and
Haryana in Gurdev Singh vs. Collector and others4 that if a person
is aggrieved by an entry in the record of rights, jurisdiction of the
Revenue court is barred; and the only remedy available is to file a
civil suit under the Specific Relief Act r/w provisions of the Punjab
Land Revenue Act,1887 which is in pari materia with the H.P Land
Revenue Act,1954.
3CWP No.809 of 2006 dt.9.1.2009
4CWP NO.14806 of 2013 dt.19.1.2015
57) In Rahul and others v. State of Haryana 5 too, identical view was
taken by another Division bench of the Punjab and Haryana High
Court.
.
58) This legal position is not disputed by either counsel for the State or
counsel for KS or his six daughters.
59) The Rapat issued by Assistant Collector 1 st Grade cum Tehsildar,
Solan is thus one without jurisdiction and is null and void. So no
rights flow from the said Rapat in favour of KS, more so when it
was obtained clandestinely behind the back of PS without any notice
being issued to PS by the concerned Revenue authority.
60) But it is undisputed that the office of Land Acquisition Collector has
proceeded on the assumption that KS was entitled to one share in
the compensation and on that basis Rs.43,52,471/- was also paid to
him on 25.6.2014 (Ex.AE-42) (though he was not entitled to any
amount since his name was not included in Record of rights/
Jamabandi vide Mutation no.257 dt.30.10.1995 (Ex.AE-3) referred
to supra). The fact that KS received Rs.43,52,471/-from the office of
Land Acquisition Collector is admitted by counsel for KS.
61) The following discussion indicates how fraudulently this was
achieved by KS.
62) Initially as per true copy of list of shareholders prepared by the
office of Land Acquisition Collector, Solan (as per Ex.AE 17) (and
also part of Exhibit PW-1/B marked in the Reference Court) as
regards the subject land, PS was shown entitled to Rs.1,39,27,905/-
52012 (3) RCR (Civil) 243
and each of the six daughters of KS were shown as entitled to
Rs.34,81,977/-.
63) Even notice dt.17.8.2013 issued under Sec.12 (2) of the Act to him
.
( Ex.AE-18(g)) shows that PS was to be paid Rs.1,39,27,905/- and
notices issued to each of the six daughters of KS show that they
were entitled to Rs.34,81,977/- ( Ex.AE-18(a) to (f)) . So obviously
PS had no reason to suspect that he would be paid less.
64)
Para 55 S.O No.28 which is part of the award of the Land
Acquisition Collector PW1/B (also part of Ex.AE-16) shows that in
column 3 titled "name of owners, tenants etc with their shares",
total shares were shown as 5; out of which 3 shares in the
compensation were shown as entitlement of the six daughters of KS
together; and 2 shares in the compensation were shown as
entitlement of PS.
65) Thus 40% share would go to PS and 60% would go to the six
daughters of KS together. There is no mention of any share of KS in
this document.
66) But subsequently in the above document there was an interpolation
in said column 3 "name of owners, tenants etc with their shares"
and the following words were inserted "Rapat No.682
dt.22.4.2013". This apart, the total number of shares was altered
from '5' to '8' ; and the share of six daughters of KS was altered as
'6' out of 8 (instead of '3' out of '5'); share of PS was mentioned as
'1' out of 8 ( instead of '2' out of '5'); and share of KS was
incorporated/ inserted as '1'out of 8.
67) The interpolation in Para 55 S.O No.28 is clearly visible in
Annexure P-24 filed in CWP No.1359 of 2018 at pg.142. This
document was obtained under Right to Information Act,2005 by PS.
.
This document is not disputed by counsel for KS or by the Counsel
for the State.
68) Thus KS appears to have managed with some officials in the office
of Land Acquisition Collector to make the interpolation in Para 55
S.O No.28 annexed to the Award No. 3/2013 dt.17.8.2013 and got a
share in the compensation awarded for the subject land on the basis
of the Rapat, though his name was not there in the Mutation done in
the Record of Rights; and which Rapat, he clandestinely appears to
have managed to get from the Revenue Department of the State,
behind the back of PS.
69) That was why PS, KS and the six daughters of KS each got equal
amount of Rs. 43,52,470/- which was paid on 25.6.2014 to them.
(See Exhibit AE-40 and AE-42).
70) Though counsel for KS sought to justify the change in the amount of
quantum of compensation of PS by relying on Section 13-A of the
Land Acquisition Act,1894 (which permits a Land Acquisition
Collector to correct clerical and arithmetic errors in an award
passed by him), such correction can only be made by the said
official (as per proviso to sub-section (1) of Section 13-A) after
giving reasonable opportunity to the person prejudicially affected by
such correction to make a representation in the matter.
71) There was admittedly no notice issued to PS by the Land
Acquisition Collector before altering /reducing his share in the
compensation.
.
72) In our opinion, any change/reduction brought about in the share of
PS in the compensation on the basis of the Rapat cannot be said to
be a clerical or arithmetical error in the first place.
73) Secondly, assuming for the sake of argument without conceding that
there is such an alleged arithmetical or clerical error in the
calculation made of the share in compensation of PS, without giving
any notice or opportunity to PS, neither the Land Acquisition
Collector nor officials of his office can reduce drastically amount
which PS was previously informed vide Ex.AE-18(g) that he would
get. Any such action taken, being one in violation of principles of
natural justice, would be void in law.
74) In fact the Additional Advocate General appearing for the State
made no attempt to justify/defend the interpolation by officials of
the office of the Land Acquisition Collector of name of KS as a
share holder in the Para 55 S.O No.28, nor his inclusion as a party to
the Reference before the Reference court even when the Land
Acquisition Collector did not mention his name in the Reference.
75) Thus at every stage a hidden hand had assisted KS to play fraud and
get a share in the compensation not only from Office of the Land
Acquisition Collector but also from the Reference Court though he
was not entitled to any share in the said compensation.
76) We are also of the view that there has been tampering of record in
the office of the Land Acquisition Collector and apparent
collusion of officials of the said office with KS to help him get a
.
share in compensation to which he was not entitled to.
77) The conduct of KS in securing compensation from the office of
Land Acquisition Collector and Reference Court on the basis of
the Rapat and interpolation in Para 55 S.O.No.28 which forms
r to
part of award of the Land Acquisition Collector Exhibit.
No.PW1/B amounts to committing act of fraud by KS on PS as
well as the Reference Court and the State.
Whether PS can urge these contentions in the instant
appeal under Section 54 of the Act arising out of a
reference under Section 18
78) We are firmly of the view, for the reasons given above, that PS
can raise in this RFA No.58 of 2018 and CMP MO.482 of 2018,
the plea that KS ought not to have been paid any share in the
compensation for the acquisition of the subject land; and he
cannot be allowed to retain any amount received from the State
either from the Land Acquisition Collector or the Reference Court
as he secured the same dubiously by committing acts of fraud on
PS, the Reference Court and the Revenue authorities.
79) The following are the reasons for the said view:
A) Inference of commission of acts of Fraud by KS having been
.
established, it vitiates all proceedings
80) In A.V. Papayya Sastry v. Govt. of A.P.6, the Supreme Court
declared, following it's earlier precedents, that if a judgment or
order is obtained by fraud, it cannot be said to be a judgment or
order in law; such a judgment can be challenged in any Court, at any
time, in appeal, revision, writ or even in collateral proceedings; a
person, whose case is based on falsehood, has no right to approach
the Court. He can be summarily thrown out at any stage of the
litigation. It held:
"21. Now, it is well-settled principle of law that if any judgment or order is
obtained by fraud, it cannot be said to be a judgment or order in law.
Before three centuries, Chief Justice Edward Coke proclaimed:
"Fraud avoids all judicial acts, ecclesiastical or temporal."
22. It is thus settled proposition of law that a judgment, decree or order
obtained by playing fraud on the court, tribunal or authority is a nullity
and non est in the eye of the law. Such a judgment, decree or order--by the
first court or by the final court--has to be treated as nullity by every court,
superior or inferior. It can be challenged in any court, at any time, in
appeal, revision, writ or even in collateral proceedings.
23. In the leading case of Lazarus Estates Ltd. v. Beasley7 Lord Denning
observed: (All ER p. 345 C)
"No judgment of a court, no order of a
Minister, can be allowed to stand if it has
been obtained by fraud."
24.....
25. It has been said: fraud and justice never dwell together (fraus et jus
nunquam cohabitant); or fraud and deceit ought to benefit none (fraus et
dolus nemini patrocinaridebent).
6(2007) 4 SCC 221, at page 231
7(1956) 1 ALL E R 341
26. Fraud may be defined as an act of deliberate deception with the design
of securing some unfair or undeserved benefit by taking undue advantage
of another. In fraud one gains at the loss of another. Even most solemn
proceedings stand vitiated if they are actuated by fraud. Fraud is thus an
.
extrinsic collateral act which vitiates all judicial acts, whether in rem or in
personam. The principle of "finality of litigation" cannot be stretched to
the extent of an absurdity that it can be utilised as an engine of oppression
by dishonest and fraudulent litigants.
27. In S.P. Chengalvaraya Naidu v. Jagannath8 this Court had an
occasion to consider the doctrine of fraud and the effect thereof on the
judgment obtained by a party. In that case, one A by a registered deed,
relinquished all his rights in the suit property in favour of C who sold the
property to B. Without disclosing that fact, A filed a suit for possession
against B and obtained preliminary decree. During the pendency of an
application for final decree, B came to know about the fact of release deed
by A in favour of C. He, therefore, contended that the decree was obtained
by playing fraud on the court and was a nullity. The trial court upheld the
contention and dismissed the application. The High Court, however, set
aside the order of the trial court, observing that "there is no legal duty cast
upon the plaintiff to come to court with a true case and prove it by true
evidence". B approached this Court.
28. Allowing the appeal, setting aside the judgment of the High Court and
describing the observations of the High Court as "wholly perverse",
Kuldip Singh, J. stated: (SCC p. 5, para 5)
"The courts of law are meant for imparting justice between the
parties. One who comes to the court, must come with clean
hands. We are constrained to say that more often than not,
process of the court is being abused. Property grabbers, tax-
evaders, bank-loan-dodgers and other unscrupulous persons
from all walks of life find the court process a convenient lever to
retain the illegal gains indefinitely. We have no hesitation to say
that a person, whose case is based on falsehood, has no right to
approach the court. He can be summarily thrown out at any
stage of the litigation."
(emphasis supplied)
29. The Court proceeded to state: (SCC p. 5, para 6)
8(1994) 1 SCC 1
"A litigant, who approaches the court, is bound to produce all
the documents executed by him which are relevant to the
litigation. If he withholds a vital document in order to gain
advantage on the other side then he would be guilty of playing
.
fraud on the court as well as on the opposite party."
30. The Court concluded: (SCC p. 5, para 5)
"The principle of 'finality of litigation' cannot be pressed to the
extent of such an absurdity that it becomes an engine of fraud in
the hands of dishonest litigants."
31. In Indian Bank v. Satyam Fibres (India) (P) Ltd9 referring to Lazarus
Estates and Smith v. East Elloe Rural Distt. Council10 this Court stated:
(SCC pp. 562-63, para 22)
"22. The judiciary in India also possesses inherent power, specially
under Section 151 CPC, to recall its judgment or order if it is
obtained by fraud on court. In the case of fraud on a party to the
suit or proceedings, the court may direct the affected party to file a
separate suit for setting aside the decree obtained by fraud.
Inherent powers are powers which are resident in all courts,
especially of superior jurisdiction. These powers spring not from
legislation but from the nature and the constitution of the tribunals
or courts themselves so as to enable them to maintain their dignity,
secure obedience to its process and rules, protect its officers from
indignity and wrong and to punish unseemly behaviour. This power
is necessary for the orderly administration of the court's business."
(emphasis supplied)
81) Similar issue fell for consideration in a case arising from the State of
Himachal Pradesh viz.,Satluj Jal Vidyut Nigam v. Raj Kumar
Rajinder Singh11.
In that case, the question involved was whether after the
abolition of jagirs by virtue of the Himachal Pradesh Abolition of
Big Landed Estates and Land Reforms Act, 1953 (hereinafter
referred to as "the Abolition Act"), the late Jagirdar or his legal
9(1996) 5 SCC 550
101956 AC 736
11(2019) 14 SCC 449
representatives could have claimed the compensation on the land
acquisition being made particularly when land had vested in the
State of Himachal Pradesh, the land was not under their personal
.
cultivation, and particularly when they had received the
compensation under the Abolition Act, apart from that they had also
received the compensation under the provisions of the H.P. Ceiling
on Land Holdings Act, 1972 (hereinafter referred to as "the Ceiling
Act").
In the above case, before the land acquisition had been
commenced in 1987, the land more than 1000 bighas had been
declared a surplus in ceiling case and compensation collected, which
included disputed land at Jhakari. So the Supreme Court held that it
would be a perpetuating fraud in case such a person is permitted to
claim compensation for same very land again.
The learned counsel on behalf of the respondents in the above
case contended that the existing right of the State cannot be decided
in the proceedings under Section 18 or 30 of the Land Acquisition
Act,1894. But the Supreme Court rejected it saying that fraud
vitiates every solemn proceeding and no right can be claimed by a
fraudster on the ground of technicalities. It held that if fraud vitiates
the proceedings, such a plea can be set up even in collateral
proceedings. It declared the label on the petition is not much
material.
It held:
"81. In the peculiar facts projected in the case the principle
fraud vitiates is clearly applicable, it cannot be ignored and
.
overlooked under the guise of the scope of proceedings
under Sections 18/30 of the LA Act."
82) Thus if the appellate court such as the High Court in the instant
case, which is a Court of record, is convinced that a party has
committed acts of fraud on the trial Court or the other party, since
such fraud vitiates the proceedings, irrespective of the scope of the
proceedings it is dealing with ( even when it is only an appeal
against a judgment passed by the Reference Court under Section 18
of the Land Acquisition Act,1894 and not one qua apportionment of
compensation), it has duty to interfere in the interest of justice.
83) The above decision of the Supreme Court is a complete answer to
contention of counsel for KS and his daughters that issue of
apportionment of compensation cannot be gone into and PS cannot
raise a plea in the RFA No.58 of 2018 that KS should not have been
granted any compensation.
84) In Hamza Haji v. State of Kerala12 the Supreme Court held that the
High Court, as a Court of Record, can exercise its jurisdiction to set
at naught the order of a Forest Tribunal procured by the appellant
therein by finding that the same is vitiated by fraud. It declared that
there cannot be any doubt that the Court in exercise of its
jurisdiction under Article 215 of the Constitution of India has
the power to undo a decision that has been obtained by playing
a fraud on the Court.
12 (2006) 7 SCC 416
85) No doubt in the decisions of the Supreme Court in Kothamasu
Kanakarathamma and others vs. State of Andhra Pradesh 13and
.
Prayag Upnivesh Awas Evam Nirman Sahkari Samiti Ltd.( 2
Supra), it was held that if a reference was made under Section 30 of
the Act regarding apportionment of compensation, the Reference
Court cannot go into the question of quantum of compensation.
86) Counsel for respondent No.10 sought to contend on the basis of the
above decisions that the converse is also true i.e., that in a Reference
under section 18 of the Act or an appeal arising therefrom, dispute
as to apportionment of compensation cannot be gone into.
87) But the said principle has no application to the instant case when
there is clear proof of commission of acts of fraud played by KS to
get a share in the compensation which he was not entitled to, and
when there is also in fact an amended reference dt.22.12.2017
(Ex.AE.43 along with Ex.AE.44) under both Section 18 and 30 of
the Act ( see discussion below paras 92-94 infra qua the amended
reference).
88) It is therefore not open to KS and his daughters to contend that PS
should have sought a Reference under Sec.18 disputing the issue of
apportionment within the period of limitation prescribed therein, or
that he should have sought a reference under Section 30 w.r.t
apportionment of compensation, and since he did not do so, in the
RFA filed by PS, he cannot be allowed to question award of
compensation to KS.
13AIR 1965 SC 304
B) The Presiding officer of the Reference Court is bound by the Reference
dt.12.12.2013 made to him by the Land Acquisition Collector and cannot
include KS in the reference when his name did not figure in such reference
.
89) No doubt in Sharda Devi v. State of Bihar14cited by counsel for KS,
the Supreme Court explained the differences between references
under Section 18 and Section 30 of the Act as under:
"25. Keeping in view the principles laid down by this Court in Dr
G.H. Grant case2 and analysing in depth the provisions of the
Act, the difference between reference under Section 18 and the
one under Section 30 can be summarized and set out as under:
By reference to locus
Under Section 18(1) a reference can be made by the Collector
only upon an application in writing having been made by (i) any
person interested, (ii) who has not accepted the award, (iii)
making application in writing, to the Collector, requiring a
reference by the Collector to the court, (iv) for determination of
any one of the four disputes (specified in the provision), and (v)
stating the grounds on which objection to the award is taken. For
reference under Section 30 no application in writing is required.
The prayer may be made orally or in writing or the reference may
be made suo motu by the Collector without anyone having invited
the attention of the Collector for making the reference.
By reference to the disputes referable
Under Section 18(1) there are four types of disputes which can be
referred to the civil court for determination. They are disputes :
(i) as to the measurement of the land, (ii) as to the amount of the
compensation, (iii) as to the persons to whom the compensation
is payable, or (iv) as to the apportionment of the compensation
among the persons interested. Under Section 30 the only disputes
which are referable are : (i) any dispute as to the apportionment
of the amount of compensation or any part thereof, or (ii) a
dispute as to the persons to whom the amount of compensation or
any part thereof is payable. A dispute as to the measurement of
the land or as to the quantum of compensation or a dispute of a
14(2003) 3 SCC 128, at page 141
nature not falling within Section 30, can neither be referred by
the Collector under Section 30 of the Act nor would the civil
court acquire jurisdiction to enter into and determine the same.
By reference to the nature of power
.
Under Section 18 of the Act the Collector does not have power to
withhold the reference. Once a written application has been made
satisfying the requirements of Section 18, the Collector shall
make a reference. The Collector has no discretion in the matter,
whether the dispute has any merit or not is to be left for the
determination of the court. Under Section 30 the Collector may
refer such dispute to the decision of the court. The Collector has
discretion in the matter. Looking to the nature of the dispute
raised, the person who is raising the dispute, the delay in inviting
the attention of the court, and so on -- are such illustrative
factors which may enter into the consideration of the Collector
while exercising the discretion. If the Collector makes the
reference it may be decided by the court subject to its forming an
opinion that the dispute was capable of reference and
determination under Section 30 of the Act. In case the Collector
refuses to make a reference under Section 30 of the Act, the
person adversely affected by withholding of the reference or
refusal to make the reference shall be at liberty to pursue such
other remedy as may be available to him under the law such as
filing a writ petition or a civil suit.
By reference to limitation
Under Section 18 the written application requiring the matter to
be referred by the Collector for the determination of the court
shall be filed within six weeks from the date of the Collector's
award if the person making it was present or represented before
the Collector at the time when he made his award or within six
weeks of the notice from the Collector under Section 12(2) or
within six months from the date of the Collector's award,
whichever period shall first expire. There is no such limitation
prescribed under Section 30 of the Act. The Collector may at any
time, not bound by the period of limitation, exercise his power to
make the reference. The expression "the person present or
represented" before the Collector at the time when he made his
award would include within its meaning a person who shall be
deemed to be present or represented before the Collector at the
time when the award is made. No one can extend the period of
limitation by taking advantage of his own wrong. Though no
limitation is provided for making a reference under Section 30 of
.
the Act, needless to say, where no period of limitation for exercise
of any statutory power is prescribed, the power can nevertheless
be exercised only within a reasonable period; what is a
reasonable period in a given case shall depend on the facts and
circumstances of each case."
26. The scheme of the Act reveals that the remedy of reference
under Section 18 is intended to be available only to a "person
interested". A person present either personally or through a
representative or on whom a notice is served under Section 12(2)
is obliged, subject to his specifying the test as to locus, to apply to
the Collector within the time prescribed under Section 18(2) to
make a reference to the court...."
90) There is no dispute with the above proposition.
91) In the instant case though Kanti Swaroop Mehta i.e., KS did apply
for reference under Section 18, his name was not reflected in the
Reference made by the Land Acquisition Officer. So he could not
have been made a party in the reference by the Reference Court, and
awarded a share in the compensation by it.
C.) CMP MO.No.482 of 2018 being allowed setting aside order dt.20.7.2018 in
CMA No.4 ADJ-II/6-2018 of the Reference Court
92) PS had filed an application on 31.10.2017 before the Land
Acquisition Collector, Solan under Or.6 Rule17 CPC r/w section 30
of the Act seeking permission to amend the earlier reference
dt.12.12.2013 under Section 18 of the Act and to add/ include
dispute as to apportionment of compensation under Section 30 of
the Act. In the said application PS highlighted the fraud played by
KS and his discovery of the same.
93) It was numbered as F.N.13/28 by the office of the Land Acquisition
.
Collector.
94) This application came to be accepted by the Land Acquisition
Collector; and on 22-12-2017 in Ref.No.751-54 (Ex.AE-43) , he
sent the amended reference both under Section 18 and Section 30 of
the Act to the District Judge, Solan. It was then forwarded by the
District Judge, Solan to the Presiding Officer of the Reference
Court.
95) PS then filed an application (Ex.AE-45) under Section 151 CPC
before the Reference Court on 27.12.2017 to consolidate (a)
Reference Petition No.11 ADJ-II/4 of 2014, the case under Section
18 before the said Court with (b) Ref.No.751-54 dt. 22-12-2017
(Ex.AE-43), the amended new Reference under Section 18 and 30
of the Act. This was adjourned to 1.1.2018 by the Reference Court
(Reverse side of pg.1 of Ex.AE-45) and later dismissed as
infructuous.
96) Admittedly, the Reference No.751-54 dt.22-12-2017 was received in
the Reference Court on 28.12.2017.
97) Instead of numbering this Reference No.751-54 dt.22.12.2017
independently, the Reference Court curiously numbered the
application filed under Or.6 Rule 17 CPC by PS before the Land
Acquisition Collector enclosed to the said Reference as CMA No.4
ADJ-II/6 of 2018 (Ex.AE-46) .
98) This is a grave illegality and impropriety done by the Reference
Court.
99) It was the duty of the Reference Court to number the amended
.
reference Reference No.751-54 dt.22.12.2017 under Sections 18
and 30 of the Act received on 28.12.2017 forthwith and proceed to
decide it along with the earlier reference dt.12.12.2013 i.e.,
Reference Petition No.11 ADJ-II/4 of 2014.
100)
The said date i.e., 28.12.2017 had been fixed by the Reference Court
for pronouncement of it's judgment in the first reference
dt.12.12.2013 under Section 18 of the Act i.e., Reference Petition
No.11 ADJ-II/4 of 2014.
101) The Presiding Officer of the Reference Court, as per trial court
record, strangely directed, by a docket order dt.28.12.2017, listing
on 1.1.2018, i.e., a date after 28.12.2017, (a) the application for
consolidation of references filed by PS as well as (b) the application
under Or.6 Rule 17 CPC filed by Ps before the Land Acquisition
Collector, application ostensibly for "office report".
102) He ought to have, in our opinion,
(i) postponed the pronouncement of judgment in Reference
Petition No.11 ADJ-II/4 of 2014 under Section 18 of the
Act, pending consideration of the amended Reference
No.751-54 dt.22.12.2017 under Section 18 and 30 of the
Act; or
(ii) numbered the amended Reference No.751-54
dt.22.12.2017 and consolidated it with the earlier
reference dt.12.12.013 i.e., Reference Petition No.11 ADJ-
II/4 of 2014 by postponing pronouncement of order in the
earlier reference or
.
(iii) he should have decided on the same day, the fate of the
amended reference first and then pronounced the order in
the first reference.
But he did not do any of these things.
103)
After adjourning the Reference No.751-54 dt.22.12.2017 under
sections 18 and 30 of the Act beyond 28.12.2017, he then
proceeded to pronounce order in the first reference dt.12.12.2013
under Section 18 of the Act i.e., Reference Petition No.11ADJ-II/4
of 2014.
104) This resulted in grave miscarriage of justice to PS.
105) Later on 20.7.2018, he dismissed vide Ex.AE-46, the application
CMA No.4 ADJ-II/6 of 2018 as not maintainable in view of
dismissal of application under Or.1 Rule 10 CPC. He held that the
applicant is trying to mislead the court with distorted facts, and the
reference under Section 18 had already been decided on 28.12.2017.
He held that the application under or.6. Rule 17 had been registered
on 1.1.2018 after the first reference was decided on 28.12.2017,
overlooking the fact that he himself directed it to be registered on
that day i.e., 1.1.2018. He cannot blame PS for the delay in
registering the application when he i.e, the Judge/Presiding Officer
of the Reference Court is responsible for it's late registration.
106) We strongly deprecate this wrong procedure adopted by the then
Judge/Presiding Officer of the Reference Court.
107) The order dt.20.7.2018 in CMA No.4 ADJ-II/6 of 2018 is
.
challenged by PS in CMP MO.No.482 of 2018 under Art.227 of the
Constitution of India.
108) Dealing with the scope of power of the High Court under Art.227 of
the Constitution of India, the Supreme Court held in Garment Craft
v. Prakash Chand Goel15 that the said jurisdiction exercised is in the
nature of correctional jurisdiction to set right grave dereliction of
duty or flagrant abuse, violation of fundamental principles of law or
justice. Exercise of this power and interfering with the orders of the
courts or tribunals is restricted to cases of serious dereliction of duty
and flagrant violation of fundamental principles of law or justice,
where if the High Court does not interfere, a grave injustice remains
uncorrected. It declared:
" 15. ... ... The jurisdiction exercised is in the nature of
correctional jurisdiction to set right grave dereliction of duty or
flagrant abuse, violation of fundamental principles of law or
justice. The power under Article 227 is exercised sparingly in
appropriate cases, like when there is no evidence at all to justify,
or the finding is so perverse that no reasonable person can
possibly come to such a conclusion that the court or tribunal has
come to. It is axiomatic that such discretionary relief must be
exercised to ensure there is no miscarriage of justice.
16. Explaining the scope of jurisdiction under Article 227, this
Court in Estralla Rubber v. Dass Estate (P) Ltd.16 has observed :
(SCC pp. 101-102, para 6)
15(2022) 4 SCC 181
16(2001) 8 SCC 97
"6. The scope and ambit of exercise of power and jurisdiction
by a High Court under Article 227 of the Constitution of India is
examined and explained in a number of decisions of this Court.
The exercise of power under this article involves a duty on the
.
High Court to keep inferior courts and tribunals within the
bounds of their authority and to see that they do the duty
expected or required of them in a legal manner. The High Court
is not vested with any unlimited prerogative to correct all kinds
of hardship or wrong decisions made within the limits of the
jurisdiction of the subordinate courts or tribunals. Exercise of
this power and interfering with the orders of the courts or
tribunals is restricted to cases of serious dereliction of duty and
flagrant violation of fundamental principles of law or justice,
where if the High Court does not interfere, a grave injustice
remains uncorrected. It is also well settled that the High Court
while acting under this Article cannot exercise its power as an
appellate court or substitute its own judgment in place of that of
the subordinate court to correct an error, which is not apparent
on the face of the record. The High Court can set aside or ignore
the findings of facts of an inferior court or tribunal, if there is no
evidence at all to justify or the finding is so perverse, that no
reasonable person can possibly come to such a conclusion,
which the court or tribunal has come to."
109) We have already held that the Reference Court committed grave
illegality and impropriety in (i) not numbering the amended
Reference No.751-54 dt.22.12.2017 and only numbering the
enclosed application under Or.6 Rule 17 CPC made by PS to the
Land Acquisition Collector seeking amendment of the prior
reference dt.12.12.2013; (ii) though amended reference, Reference
No.751-54 dt.22.12.2017 was received on 28.12.017 by him, the
Judge of the Reference Court erred in adjourning the same to a date
beyond 28.12.2017, the date when he was due to pronounce
judgment in the previous reference dt.12.12.2013; and (iii) later
dismissing the same on 20.7.2018 as not maintainable. This totally
wrong procedure has caused a grave miscarriage of justice
warranting exercise of our jurisdiction under Art.227 of the
.
Constitution of India.
110) Therefore we set aside the order dt.20.7.2018 in CMA No.4 ADJ-II/
6 of 2018.
111) The amended reference Reference No.751-54 dt.22.12.2017 under
Section 18 and 30 of the Act has till date not even been numbered
by the Reference Court and is said to be still pending before it.
112) There is no period of limitation fixed by the Act for making a
Reference under Section 30 of the Act (unlike for a Reference under
Section 18 of the Act).
113) In the facts and circumstances of the case, and the commission of
acts of fraud by KS, it cannot be said that the application for
amending the Reference was not made within a reasonable time as
PS had to get the evidentiary material to reveal the acts of fraud
played by KS and then seek amendment of original Reference.
114) There was no challenge by KS and his six daughters to the amended
reference Reference No.751-54 dt.22.12.2017 before this Court in
any proceeding till date.
115) It would be a travesty of justice to allow KS to enjoy the fruits of his
fraud taking advantage of the fact that the said Reference No.751-54
dt.22.12.2017 was not decided by the reference Court.
116) In Surya Dev Rai v. Ram Chander Rai17 the Supreme Court
explained the distinction between a Writ of Certiorari issued under
Art.226 of the Constitution of India and supervisory jurisdiction
.
under Art.227 of the Constitution of India. It declared that in
exercise of supervisory jurisdiction, the High Court may not only
quash or set aside the impugned proceedings, judgment or order, but
it may also make such directions as the facts and circumstances of
the case may warrant, maybe, by way of guiding the inferior court
or tribunal as to the manner in which it would now proceed further
or afresh as commended to or guided by the High Court. In
appropriate cases, it held that the High Court, while exercising
supervisory jurisdiction, may substitute such a decision of its
own in place of the impugned decision, as the inferior court or
tribunal should have made. It held:
"25.... In exercise of supervisory jurisdiction, the High Court
may not only quash or set aside the impugned proceedings,
judgment or order but it may also make such directions as the
facts and circumstances of the case may warrant, maybe, by
way of guiding the inferior court or tribunal as to the manner
in which it would now proceed further or afresh as commended
to or guided by the High Court. In appropriate cases the High
Court, while exercising supervisory jurisdiction, may substitute
such a decision of its own in place of the impugned decision, as
the inferior court or tribunal should have made.... ..."
"38(9) ...the High Court may in appropriate cases itself make
an order in supersession or substitution of the order of the
subordinate court as the court should have made in the facts
and circumstances of the case."
( emphasis supplied)
17 (2003) 6 SCC 675
117) So we deem it appropriate to exercise our supervisory jurisdiction
under Art.227 of the Constitution of India, treat the Reference
.
No.751-54 dt.22.12.2017 by the Land Acquisition Collector to the
Civil Court under both Section 18 and 30 of the Act as a valid
Reference, and proceed to decide the same in supersession of the
decision of Reference Court to not even number it or decide it
(which it ought to have done on the aspect of apportionment of
compensation). r
118) Therefore we hold that PS was right in contending that KS could not
have got any amount as compensation for the subject land; that KS
should be made to refund the amount he had received; and the State
should be directed to pay PS his legitimate share of compensation
by deducting the amount already paid to PS.
How the Steps taken by PS in trial Court to expose KS failed
Step No.1
119) PS invoked Or.1 Rule 10(2) CPC and filed application on 18-10-
2016 seeking deletion of KS from the proceedings in the Reference
Court i.e., Reference Petition No.11ADJ-II/4 of 2014 alleging that
KS was neither a co-sharer in the land nor was he entitled to
compensation in view of the Mutation No.257 dt.30.10.1995. He
contended that KS took advantage of the fact that he is educated and
PS is illiterate, abused the trust PS had in KS as a family member
and the Special Power of Attorney given by PS to KS.
This was numbered as CMA NO.85 ADJ-II/6 of 2016 by the
Reference Court and was dismissed on 5-9-2017 (Ex.AE-27).
The Reference Court held that if wrong shares were
determined by the Land Acquisition Officer, then PS should not
.
have received the compensation along with KS and his six
daughters; that PS and KS had not filed a reference under Sec.30 of
the Act to the concerned Collector and had only sought a Reference
under Section 18 of the Act for determination of adequate
compensation; that PS should have challenged the Rapat before the
competent Revenue Authority; that he also failed to appear as a
witness before the Reference Court to state the facts; and that the
application was filed at the stage of arguments.
Though this order has also been challenged by PS in the RFA
No.58 of 2018, since such an application under Or.1 Rule 10 CPC
for impleadment of a party was held not maintainable in the
proceedings under Section 18 and 30 of the Land Acquisition
Act,1894 by the Supreme Court in Ambey Devi v. State of Bihar18,
no relief can be granted to PS in regard to the said order in this
appeal.
Step No.2
120) PS had also filed on 8-9-2017 an application under Or. 1 Rule 3 and
10 CPC to transpose him as respondent No.4 in the Reference
before the Reference Court.
This application was numbered as CMA No.54ADJ-II/6 of
2017 and was dismissed on 18.11.2017 (Ex.AE-28).
18(1996) 9 SCC 84
The Reference Court held that PS had not filed any objection
before the Collector showing that his share has been wrongly
reduced by interpreting the Will executed by Smt.Ram Dei nor he
.
appeared in the Reference as a witness; that the case is listed for
arguments and at that stage this plea cannot be entertained.
Though this order has also been challenged by PS in the RFA
No.58 of 2018, since an application under Or.1 Rule 10 CPC (which
also deals with transposition) was held not maintainable in the
proceedings under Section 18 and 30 of the Land Acquisition
Act,1894 by the Supreme Court in Ambey Devi ( 18 supra), no
relief can be granted to PS in regard to the said order in this appeal.
Steps taken by PS to have the Rapat set aside before the Revenue Authorities
121) We have already pointed out that on the basis of the regd.Will
dt.11.2.1993 of Smt.Ram Dei, mutation No.257 dt.30-10-1995 was
duly sanctioned qua the subject land only in favor of PS and the six
daughters of KS. There is no mention of any share given to KS in
the said mutation qua the subject land.
122) Later Rapat No.682 dt.22-4-2013 ( Ex.AE-15) was obtained by KS
on the basis of an application dt.10.4.2013 (Exhibit AE.no.14)
made to the Asst.Collector Grade-I ( Tehsildar), Tehsil and District,
Solan by misleading the said official that he (KS) was also entitled
to a share in the compensation. The said official accepted the plea of
KS, and without issuing any notice to PS and behind his back,
instructed the Halqua Patwari of Shamti to incorporate note vide
Rapat No.682 dt.22-4-2013 in the Revenue Record qua the subject
land mentioning about the one share to KS and reducing the share of
PS from 2/5 to 1/8.
123) This Rapat was made use of by KS before the office of Land
.
Acquisition Collector to get Para No.55 S.O.28 statement amended
(part of Ex.AE-16) behind the back of PS and secure a share in
compensation from the said office of Rs.43,562,471/- to which he is
not lawfully entitled (See Ex.AE-40 and Ex.AE.42).
124)
On 14-9-2016, PS had filed an application ( Ex.AE-22 and Ex.AE-
23) before the District Collector, Solan seeking an inquiry against
the action of Asst.Collector Grade-I (Tehsildar), Tehsil and District,
Solan in changing the Revenue record qua the subject land
complaining that he suffered huge financial loss by the act of the
said official in issuing the said Rapat behind his (PS)'s back.
125) The Deputy Commissioner, Solan forwarded the same to the Sub-
Divisional Officer, Solan vide proceedings dt.21-11-2016 (Ex.AE-
24) for enquiry into allegations leveled by PS.
126) The Sub-Divisional Officer, Solan vide proceedings dt.3-4-2017
(Ex.AE.24) conducted enquiry and gave the following findings:
" After giving thoughtful consideration to facts which have come
forth after perusal of record and discussed above, it is made out that
impugned order has been passed by the Tehsildar, Solan without
following procedure laid out under law as no opportunity of being
heard has been afforded to the complainant ...
No such Rapat should have been incorporated in the record
behind the back of the complainant. The para-8 of the Will
dt.27.2.1993 has not conferred any rights with regard to any future
acquisition and Rapat No.682 also mentions Solan-Rajgarh road
compensation only. Therefore the Rapat No.682 should not have
been implemented on land under acquisition for Solan Rajgarh Bye
Pass road and the compensation was to be awarded and apportioned
as per the shares mentioned in ownership column of jamabandi."
(emphasis supplied)
.
127) The matter then went back to the District Collector, Solan.
128) On 19-7-2017, the District Collector, Solan perused the record of
the inquiry submitted to him by the Sub-Divisional Collector, Solan
referred to above and opined (Ex.AE33) that no correction can be
ordered in the Revenue record without following the procedure laid
down in the H.P Land Revenue Act,1954. He therefore referred the
matter back to the Collector, Sub-Division, Solan with a direction to
decide the application filed by PS to quash the order of the Assistant
Collector, 1st Grade, Solan as an Appeal under H.P. Land Revenue
Act,1954 after giving due opportunity of being heard to all the
concerned parties. He also directed him to consider the issue of
limitation in filing the appeal also before passing an order on merits
of the case.
129) Thereafter on 28.10.2017, the Collector, Sub-Division, Solan gave
notice (Ex.AE-34) of enquiry to PS and asked him to file proper
appeal.
130) PS then filed Revenue Appeal No.43/08 of 2017 before the Sub-
Divisional Collector, Solan and also sought condonation of delay in
filing the same invoking Section 5 of the Limitation Act,1963.
131) The said official then condoned the delay in filing the said Appeal
by PS on 9-4-2018 (Ex.AE-35).
132) KS and his six daughters filed Revision on 23-4-2018 (Ex.AE-37)
against the said order before the Divisional Commissioner, Shimla
challenging the order dt.9-4-2018 of the Sub-Divisional Collector,
Solan invoking Section 17 of the H.P.Land Revenue Act,1954.
This was numbered as Case No.89/2018.
.
133) On 23.4.2018, the Divisional Commissioner called for record of
the Sub-Divisional Collector, Solan in Revenue Appeal No.43/08
of 2017.
134) This was challenged by the PS before the Financial Commissioner
r to
(Appeals) contending that PS had filed a caveat (Ex.AE-36) and
without hearing him, the record could not have been called for by
the Divisional Commissioner, Shimla.
135) On 11-5-2018, the Financial Commissioner (Appeals) numbered
the same as Rev.No.118/2018 and stayed the order dt.23-4-2018
of the Divisional Commissioner, Shimla ( Ex.AE-38).
136) According to counsel for PS, on 29-12-2022, the Financial
Commissioner (Appeals) has passed final order directing the
Divisional Commissioner, Solan to decide the Case no.89/2018
for adjudication after hearing the interested parties. The matter
stands there at the moment.
137) These facts are stated to complete the narration of events and to
show that PS had been taking active steps to challenge the Rapat
no.682 dt.22.4.2013 ever since he came to know of the acts of
fraud committed by KS.
Whether the market value of subject land fixed by the Reference Court
requires to be enhanced as pleaded by the PS or decreased as pleaded by
the State of HP
.
138) In the Award no.3 of 2013, passed by the Land Acquisition
Collector on 17.08.2013, he had determined the market value of
the acquired land at Rs.1,52,702/- per biswa, though he had
himself referred to one year average market value in the said
Village Shamti procured by the field staff, which was sent to the
District Collector, District Solan, for approval, mentioning the
market value at Rs.8,29,000/- per biswa. The Land Acquisition
Collector mentioned that the District Collector through office
letter no.DRA/1-150-88-18-60831 dt. 24.04.2013, had approved
the same.
139) The Reference Court, in the impugned judgment dt.28.12.2017,
accepted the contention of the claimants that on the basis of the
above proceeding of the District Collector, the average market
value of the land at the time of acquisition has to be not less than
Rs.8,29,000/- per biswa as per the Letter dt.24.4.2013 of the
District Collector. It then deducted 10% as development charges,
and arrived at a market value of Rs.7,46,100/- per biswa for the
7.3 bighas of land of the claimants, which was acquired. The
Land Acquisition Collector, therefore, awarded
Rs.10,66,92,300/-.
Contentions of counsel for PS in RFA No.59 of 2018
140) Counsel for the appellant/PS contends that they had relied before
.
the Reference Court on a copy of Award Ex.PX-1 dt. 09.09.2014,
being Award no.15/ 2010 dt. 05.10.2010, in which
Rs.4,22,84,353/- per bigha was assessed as the market value, of
which, 50% amount was deducted as development charges
arriving at the market value of Rs.2,11,42,177/- per bigha.
141) He therefore contended that the appellant should be entitled to his
share in the compensation determined by taking the average
market value as Rs.2,11,42,177/- per bigha.
142) He also pointed out that no reason had been given by the
Reference Court why it ignored the determination of the average
market value @ Rs.2,11,42,177/- per bigha in the Award
no.15/2010 dt. 05.10.2010, because the Reference Court itself
noted that in the instant case the Notification under Section 4(1)
of the Land Acquisition Act,1894 was issued on 07.12.2010 after
the Award no.15 of 2010 dt. 05.10.2010 was passed.
143) He also points out that the Reference Court mentioned that the
Notification in the instant case also corresponds to the same
period to which the earlier award was passed wherein the
predecessor of the Land Acquisition Collector had awarded
Rs.2,11,42,177/- per bigha.
The stand of the State
144) The learned Government Pleader also did not dispute that the
notification which was subject matter of the Award no.15 of 2010
.
dt. 05.10.2010 passed by the Land Acquisition Collector, had
been issued under Section 4(1) of the said Act on 26.08.2009,
whereas, in the instant case such a notification was issued on
17.12.2010, more than a year later.
145)
If the average market value as per the Award no.15 of 2010 dt.
05.10.2010 is taken into consideration at Rs.2,11,42,177/- per
bigha, it would translate to Rs.10,57,109/- per biswa. The
appellant PS seeks a share in the compensation of 40% on the
said basis.
Consideration by the Court
146) It is settled law that determination of compensation in each case
depends upon the nature of the land, what is the evidence
adduced in each case and that compensation cannot be
determined by blindly following the previous awards/judgments.
They have to be considered only as a piece of evidence and not
beyond that.
147) The Supreme Court has held in Manoj Kumar vs. State of
Haryana19, that the Court has to apply the judicial mind and is
not supposed to follow previous awards without due
consideration of the facts and circumstances and evidence
adduced in the case in question. The previous awards/judgments
19 (2018) 13 SCC 96
are only a piece of evidence on par with comparable sale
transactions. The similarity of the land covered by previous
judgments/awards is required to be proved like any other
.
comparative exemplar sale-deeds. In case the previous
award/judgment is based on exemplar, which is not similar or
acceptable, previous award/judgment of Court cannot be said to
be binding, and such determination has to be out-rightly rejected
r to
on the ground of parity and the illegality cannot be perpetuated.
To base determination of compensation on a previous award
or judgment, evidence considered in the previous judgment or
award, and its acceptability on judicial parameters has to be
necessarily gone into. Otherwise, gross injustice may be caused
to any of the parties.
The Supreme Court also held that as per situation of a
village, nature of land, its value differs from distance to distance
and even 2 to 3 kilometers distance may also make a material
difference in value.
148) We have perused the Award no.15 of 2010 dt. 05.10.2010 marked
as Ex.PX-1 before the Reference Court.
149) Though the said award relates to an extent of 14 biswas in Khasra
no.414/124/1, 2 biswas in Khasra no.330/122/1 and 1 biswa in
Khasra no.330/122/2 of Village Shamti, Tehsil & District, Solan,
no evidence has been adduced by the appellant PS as to the
distance of the said land (which is subject matter of Award no.15
of 2010 dt. 05.10.2010) from the land which is subject matter of
acquisition in the instant appeal RFA No.59 of 2018.
150) Before the Reference Court, only respondent no.10 had given
.
evidence and he had not mentioned anything in his deposition
about the Award no.15/2010 dt. 05.10.2010 which he had marked
as Ex.PW-1/B nor has he mentioned anything about the distance
of the subject land from the land which was subject matter of the
151)
Award no.15 of 2010.
r to
The appellant PS had anyway not entered the witness-box and
made any statement on the aspect of the location of the subject
land vis-à-vis the land which was subject matter of Award no.15
of 2010.
152) Therefore, it would be unsafe for us to rely on the Award no.15 of
2010 and modify/enhance the amount of compensation awarded
to the share of the appellant on that basis.
153) Counsel for the appellant alternatively contended that the
Reference Court ought not to have deducted 10% as development
charges since the acquisition is for laying a road and placed
reliance on the decisions of the Supreme Court, reported in
Nelson Fernandes vs. Land Acquisition Officer20 and Smt.
Basavva & Others vs. The Spl. Land Acquisition Officer & Others 21.
20 (2007) 9 SCC 447
21 (1996) 5 SCC 580
154) Both these cases relate to acquisition of land for the purpose of
laying a railway line and do not deal with acquisition of land for
roads and therefore do not come to the aid of the appellant.
.
155) But there are decisions of the Supreme Court which provide for
deduction to be made from market value even in respect of lands
acquired for laying a road such as State of M.P.& Another vs.
Kanshiram22.
156)
Therefore, we hold that, as a matter of law, there can be
deduction made from the compensation even where acquisition is
intended for the purpose of laying a road.
RFA No. 9 /2019, the RFA by the State of HP against the judgment of
the Reference Court.
157) Coming to the RFA No. 9 of 2019 filed by the State, the learned
Additional Advocate General contended that the assessment of
market value by the Reference Court is erroneous and that the
Reference Court ought not to have given more compensation than
what was done by the Land Acquisition Collector.
158) We do not agree with the said submission of learned Additional
Advocate General since the Reference Court in its judgment had
taken the average market value at Rs.8,29,000/- per biswa on the
basis of a letter no.DRA/1-150/88-18-60831 dt. 24.04.2013 of the
District Collector, approving the one year average market value
of lands in Village Shamti as Rs.8,29,000/- per biswa, then
22 (2010) 14 SCC 506
deducted 10% therefrom as development charges, thus arriving
at the market value of Rs.7,46,100/- per biswa.
159) Since the said assessment by the Reference Court appears to be
.
based on the basis of material on record, that too a decision of
District Collector on the aspect of market value qua the lands in
the same village, the judgment of the Reference Court on the said
aspect cannot also be interfered with at the instance of the State
160)
Government. r to
Therefore, we reject the plea of the appellants in both the appeals
to modify the assessment of market value arrived at by the
Reference Court.
161) However, we hold that PS, the appellant in RFA .No.58 of 2018,
should have been awarded 40% of the compensation for the
subject land, and KS should not have been awarded any share in
compensation either by the Land Acquisition Collector or the
Reference Court.
162) Consequently even the share of the six daughters of KS would get
reduced as indicated below:
Calculation as regards share of compensation of PS
40% share of PS out of Rs.10,66,92,300/- .. Rs.4,26,76,920/-
(Appellant in RFA No.58 of 2018)
Less: the amount already received by him
from the State ... Rs. 43,52,471/-
Balance payable to PS by the State of HP
with statutory benefits ... Rs.3,83,24,449/-
Calculation as regards share of compensation of (respondent
No.s 4 to 9 in RFA No.58 of 2018)
60% out of Rs.10,66,92,300/- ... Rs.6,40,15,380/-
.
together for the six daughters of KS
(respondent No.s 4 to 9 in RFA No.58 of 2018)
Legitimate Share of each daughter of KS ... Rs.1,06,69,230/-
@ Rs.6,40,15,380/- / 6 with statutory benefits
But each of them was erroneously held entitled
by Reference Court to receive from the State
1/8 share out of Rs.10,66,92,300/- ... Rs1,33,36,538/-
This cannot be permitted because, in such a case, each of six
daughters of KS would then get an excess of Rs.26,67,308/-
more than their entitlement under law.
So the six daughters of KS i.e., respondent No.s 4 to 9 in RFA
No.58 of 2018 are held entitled to receive only
Rs.1,06,69,230/- each with statutory benefits from the State
of HP less amount of Rs.43,52,470 already received by each
of them i.e., balance of Rs.63,16,760/- each only with
statutory benefits; and any excess payment made to them
over and above this amount shall be recovered by the State of
HP from them.
Also KS i.e., the Respondent no.10 in RFA No.58 of 2018
shall refund to the State of HP the entire amount of
Rs.43,52,470/- received towards share in compensation for
the subject acquired land and it is held that he is not entitled
to receive any amount from the compensation awarded as he
had no share in the subject land.
CWP No.1359 of 2018
163) This Writ Petition has been filed by P.S., seeking a direction to the
.
Union of India (1st respondent therein), to refer the matter to the
Central Bureau of Investigation by registering an FIR against K.S,
the six daughters of K.S., and certain named officials of the
Revenue Department and Police Department impleaded as private
respondents.
164) In the said Writ Petition, P.S. had set-out the events in Paragraphs
121 to 135 supra as regards the challenge by him to the Rapat no.
no.682 dt. 22.04.2013 (Ex.AE-15).
165) He also referred to Annexure P-24, which is the certified copy of
the Award no.3 of 2013 dt. 17.08.2013 of the Land Acquisition
Collector, containing the interpolated Para 55 SO No.28,
mentioning about the Rapat no.682 dt. 22.04.2013, the change
made therein to the total number of share holders in the subject land
by giving one share each to K.S., his six daughters and also to P.S.,
thereby reducing the share of P.S. in the compensation from 2/5 to
1/8, increasing the shares of six daughters of K.S. to 1/8 each from
1/10 each and giving one share in the compensation to K.S., which
he was otherwise not entitled to.
166) He alleged that this is a tampered award and such tampering
occurred in the office of the Land Acquisition Collector behind his
back; and that complaining of this, he had filed Annexure P-25
complaint dt. 11.11.2016 to the Superintendent of Police, Solan,
alleging breach of trust, forgery and fabrication against the officials
working in the office of the Land Acquisition Collector.
167) When no action was taken thereon, he filed an application under
.
Section 156(3) of Cr. P.C. before the Chief Judicial Magistrate,
Solan, seeking a direction to the S.H.O., Police Station, Solan, on
the above complaint.
168) It was numbered as Case No.R No.211 of 2016 by the Chief
Judicial Magistrate, Solan, and an order was passed on 20.12.2016,
allowing the said application and directing the S.H.O. Solan for
registration of an FIR, and to make investigation by placing reliance
on the judgment of the Supreme Court in Lalita Kumari vs.
Government of U.P.23, and the principles laid-down therein. The
Chief Judicial Magistrate held that though a cognizable offence is
alleged in the complaint filed by P.S. vide Annexure P-25 dt.
11.11.2016, F.I.R. was not registered and no satisfactory reason was
stated or provided for the delay.
169) As a consequence to this order of the Chief Judicial Magistrate, the
S.H.O. Solan, registered F.I.R. no.0293 on 21.12.2016 under
Section 420 I.P.C.
170) P.S. alleged that the personnel of the Police Station, Solan, did not
conduct investigation in a fair manner, but instead provided shelter
to the officials of the office of Land Acquisition Collector and filed
Annexure P-41 Cancellation Report dt.11.1.2017 before the Judicial
Magistrate, 1st Class, Solan by misrepresenting the facts. He alleged
23 (2014) 2 SCC 1
that the police, instead of investigating the interpolation
clandestinely made about the Rapat no.682 in Para 55 SO 28,
annexed to Annexure P-24/ Award no.3 of 2013 dt. 17.08.2013 and
.
the reduction of shares of compensation of P.S. and granting of a
share in compensation of K.S. (to which he was not entitled to),
took a wrong view that the Rapat was validly issued, and P.S. would
also get only one share alongwith K.S. and his six daughters.
171)
P.S. filed objection on 22.01.2017 against the Cancellation Report
dt. 11.01.2017 filed by the S.H.O., Police Station, Solan, pointing
out this aspect and also mentioned about changing of his statement
recorded under Section 161 Cr. P.C. with a motive to give undue
benefit to the wrongdoers.
172) P.S. also filed a private complaint under Section 200 Cr. P.C to the
Chief Judicial Magistrate, Solan vide Annexure P-46 dt.
09.01.2017, alleging forgery in the Award no.3 of 2013 dt.
17.08.2013 by public servants by misusing their official power.
173) P.S. alleged that vide Annexure P-44 dt. 11.05.2018, the Judicial
Magistrate First Class, Solan, accepted the cancellation report filed
by the police in F.I.R. no.293 of 2016 by upholding the change as to
the compensation share based on the Rapat no.682 dt. 11.04.2013
made by the Patwari in compliance with an order passed on
11.04.2013 by the Tehsildar, Solan, upon an application made by
K.S.
174) P.S. contended that such an issue could not have been gone into by
the Chief Judicial Magistrate, Solan, and he should have confined
himself to the allegations made by P.S. about tampering of the
Award no.3 of 2013 dt. 17.08.2013 in the office of the Land
Acquisition Collector behind the back of P.S. and there is a grave
.
error in the said order.
175) He also contended that erroneously the Judicial Magistrate First
Class, Solan in the very same order dt. 11.05.2018 dismissed even
the Private Complaint filed by P.S. under Section 200 Cr. P.C.,
erroneously holding that no prima facie case is made out against the
accused under Sections 420, 464, 467, 468, 471, 218, 167, 168 &
120-B of I.P.C.
176) He therefore contends that grave injustice has been caused to him
on account of the conduct of the Revenue officials & the Police
officials named in the Writ Petition, and the wrongful refusal of the
Criminal Courts to intervene and come to his aid and, therefore,
contends that it is necessary to get the matter investigated by the
Central Bureau of Investigation.
177) We have considered the said submissions.
178) Unfortunately this order of the Judicial Magistrate First Class,
Solan dt. 11.05.2018 accepting the Cancellation Report filed by the
Police in F.I.R. no.293 of 2016, and also dismissing the private
complaint filed by P.S., has not been challenged by him availing
the remedies under the Cr.P.C.. Had this been done by PS , the
error, if any, in the said common order could have been corrected
by the fora prescribed under the Cr.P.C.
179) The Central Bureau of Investigation is an Investigating Agency,
which operates under the Delhi Special Police Establishment Act,
1946.
.
180) It has been held by the Supreme Court in Minor Irrigation & Rural
Engineering Services, U.P. vs. Sahngoo Ram Arya24, that though
High Court has power under Article 226 of the Constitution of India
to direct an investigation by the Central Bureau of Investigation,
such power can be exercised only in cases where there is sufficient
material to come to a prima facie conclusion that there is a need for
such inquiry and that it cannot be done as matter a matter of routine
or merely because a party makes some allegations. More
importantly, the persons who have to be investigated have to be also
provided a hearing.
181) Though replies have been filed by some of the persons impleaded
as private respondents, we feel that P.S. ought to have questioned
the adverse orders passed by the JMIC, Solan, by invoking the
remedies under the Code of Criminal Procedure.
182) No reason has been assigned by P.S. as to why the remedies under
the Code of Criminal Procedure against the order passed on
11.05.2018 by the JMIC, Solan (Annexure P-44) were not availed
of.
183) Therefore, in the facts and circumstances of the case, we are not
inclined to grant any relief to P.S. in the said Writ Petition.
24(2002) 5 SCC 521
184) It is accordingly dismissed and pending miscellaneous
application(s), if any, shall also stand disposed of.
185) In the result:
.
(a) RFA No.58 of 2018 is allowed to the extent indicated below:
(b) the State of HP shall recover the entire amount paid by it as
share in compensation to KS (respondent No.10 in RFA
No.58 of 2018), if necessary, as arrears of Land Revenue;
(c)
the six daughters of KS ( respondent No.s 4-9 in RFA No.58
of 2018) are held entitled to receive from the State only
Rs.1,06,69,230/- each with statutory benefits from the State
of HP less amount of Rs.43,52,470 already received by each
of them i.e., balance of Rs.63,16,760/- each only with all
statutory benefits as per the ratio in Sunder vs.Union of
India25 . The same shall be paid to them within 2 months from
today, if not already paid; and any excess payment made to
them over and above this amount shall be recovered by the
State of HP from them, if necessary as arrears of Land
Revenue;
(d) the State of HP shall pay to the appellant in RFA No.58 of
2018/PS Rs.3,83,24,449/- in addition to Rs.43,52,471/- which
he already received with all statutory benefits as per the ratio
in Sunder vs.Union of India26 within 2 months from today, if
not already paid.
25 (2001) 7 SCC 211
26 (2001) 7 SCC 211
(e) Respondent No.10 in RFA No.58 of 2018 shall pay costs of
Rs.2,50,000/- to the appellant/PS within 2 months from today.
(f) RFA No.9 of 2019 filed by the State of HP and others is
.
dismissed;
(g) CMP.MO.No. 482 of 2018 is allowed as above; and
(h) CWP No.1359 of 2018 is dismissed.
(M.S. Ramachandra Rao)
Chief Justice
r (Ajay Mohan Goel)
Judge
November 20, 2023
Appendix of additional evidence allowed vide separate order
dt. 11.2023 in CMP.No.9541 of 2018
Exhibit No.
.
Particulars
Ex.AE.No.1. Photo copy of Legal notice dt.26.11.1990
issued by Smt.Ram Dei through her GPA
to State of HP and others with regard to
Solan Rajgarh Road.
Ex.AE.No.2. Certified Copy of regd. Will dt.27.2.1993
r executed by Late Ram Dei.
Ex.AE.No.3. copy of Mutation No.257 dt.30-10-1995
attested after the death of Ram Dei in
Revenue records obtained under the RTI
Act,2005.
Ex.AE.No.4. Copy of Legal Notice dt.5.9.2005 issued
by Sh. Kanti Swaroop Mehta and others
to the State of HP and others qua the
Solan-Rajgrah Road under RTI Act,2005.
Ex.AE.No.5. Certified copy of Judgment and decree
passed in Civil Suit No.14-S/1 of 2006
qua Solan-Rajgrah Road.
Ex.AE.No.6. Certified copy of evidence given by
affidavit by Kanti Swaroop Mehta given
in Civil Suit No.14-S/1C of 2006 qua
Solan-Rajgrah Road.
Ex.AE.No.7. Certified copy of evidence given by
affidavit of Executive Engineer, HP
PWD, Solan given in the Suit No.14-S/1C
of 2006 qua Solan-Rajgrah Road.
Ex.AE.No.8. Certified copy of evidence given by
affidavit of Assistant Engineer, HP PWD,
Solan given in the Suit No.14-S/1C of
2006 qua Solan-Rajgrah Road.
Ex.AE.No.9. Copy of Notification dt.26.8.2009 issued
.
by State of HP for acquiring land for
Solan Rajgarh Road obtained under RTI
Act,2005.
Ex.AE.No.10. Award No.15/2010 dt.5-10-2010 passed
by Land Acquisition Collector, Solan for
acquiring land for Solan Rajgarh Road
obtained under RTI Act,2005.
Ex.AE.No.11. True copy of order dt.20.7.2016 in RFA
No.160 of 2015 passed by the High Court
of HP w.r.t Solan Rajgarh Road.
Ex.AE.No.12. copy of notification dt.7-2-2010 issued
under Section 4(1) of the LA Act,1894
obtained under the RTI Act,2005.
Ex.AE.No.13. Copy of Application cum objection dt.10-
4-2013 filed by Sh.Kanti Swaroop Mehta
before the Land Acquisition Collector,
Shimla Solan before passing Award with
prayer to release a share in the amount of
compensation relying on clause 8 in the
Will dt.11.2.1993 obtained under the RTI
Act,2005.
Ex.AE.No.14. Order No.KH-KA-/94/13-850 dt.11-4-
2013 passed by Ld. A C 1 st Grade Solan
behind the back of petitioner after 19
years from attestation of Mutation for the
subject land obtained under the RTI
Act,2005.
Ex.AE.No.15. Copy of Rapat No.682 dt.22-4-2013
entered in the revenue records by the
Halqua Patwari behind the back of
petitioner obtained under the RTI
Act,2005.
.
Ex.AE.No.16. Certified Copy of Award No.3/2013
dt.17-8-2013 passed by the Land
Acquisition Collector qua the Solan
-Rajgarh Road and exhibited as PW-1/B
in Land reference No.11 ADJ-II/4 of
2014.
Ex.AE.No.17. Certified Copy of list of share holders
prepared by the Land Acquisition
Collector, Solan initially obtained from
the court of the Additional District Judge,
Solan.
Ex.AE.No.18. Copy of intimation dt.17-8-2013 of share
given to each co-sharers as per Para
No.55 of the Award No.3/2013 issued by
the Land Acquisition Collector, Solan
under section 12(2) of the Land
Acquisition Act,1894 obtained under the
RTI Act,2005.
Ex.AE.No.19. Copy of Power of Attorney of Kanti
Swaroop Mehta Mehta obtained from the
court of the Additional District Judge,
Solan.
Ex.AE.No.20. Certified Copy of Land Reference
No.11ADJ-II/4 of 2014 filed against
Award No.3/2013 dt.23-9-2013 obtained
from the court of the Additional District
Judge, Solan.
Ex.AE.No.21. Certified Copy of Applications filed for
releasing the amount of compensation
awarded in Award No.15/2010 before the
High Court in RFA No.160 of 2015.
Ex.AE.No.22. Copy of Application dated 14.09.2016
.
given to Ld. District Collector Solan by
petitioner after knowledge of fraud
committed with him with prayer to delete
the Rapat No.682 obtained under the RTI
Act,2005.
Ex.AE.No.23. Copy of Objection dated 14.09.2016
given to Ld. L.A.C. Shimla at Solan by
petitioner obtained under the RTI
Act,2005.
Ex.AE.No.24. Copy of Enquiry Report dated 03.04.2016
submitted by Ld. S.D.C. Solan to Ld.
District Collector Solan H.P., whereby
held that Clause No.8 of the Will is not
applicable on Solan Rajgarh Bye-Pass
Road obtained under the RTI Act,2005.
Ex.AE.No.25. Certified copy of Order dated 20.12.2016
passed by Ld. J.M.I.C. Solan on
application under Section 156 (3) Cr.P.C.
filed by petitioner.
Ex.AE.No.26. True Copy of F.I.R. No.293 dated
22.12.2016.
Ex.AE.No.27. Certified Copy of order dated 05.09.2017
passed on Application under Order 1 Rule
10 C.P.C. read with Section 30 of Land
Acquisition Act passed by Hon'ble ADJ-
II, Solan, H.P., vide No.85ADJ-II/6 of
2016.
Ex.AE.No.28. Certified Copy of order dated 18.11.2017
passed on Application under Order 1 Rule
10(2) C.P.C. & under Section 30 of the
L.A. Act by Hon'ble ADJ-II Solan,
District Solan, vide No.54ADJ-II/6 of
.
2017.
Ex.AE.No.29. Certified Copy of judgment and decree in
Reference petition No.11ADJ-II/4 of
2014 dated 28.12.2017 passed by Hon'ble
ADJ-II Solan against Solan-Rajgarh Bye-
Pass Road along with zimni orders.
Ex.AE.No.30. Certified Copy of Order dated 14.03.2018
passed in RFA No.58 of 2018 filed
against Award dated 28.12.2017 by
petitioner.
Ex.AE.No.31. Certified Copy of Order dated 16.03.2018
passed on Revision Petition i.e. CMPMO
No.549 of 2017 by Hon'ble High Court of
H.P.
Ex.AE.No.32. Certified Copy of Order passed on
Application under Sections 45 & 73 of
the Evidence Act filed by petitioner
before Hon'ble ADJ-II Solan for examine
the signature of petitioner through expert
filed in land Reference No.11 ADJ-II/4 of
2014.
Certified Copy of order dated 14.07.2017
passed by the Ld. District Collector,
Ex.AE.No.33.
Solan, on the inquiry Report submitted by
Ld. S.D.C. Solan obtained under RTI
Act,2005.
Copy of order dated 28.10.2017 informed
to petitioner by the ld. S.D.C. Solan
Ex.AE.No.34.
through letter No.SDM/SLN/
(Reader)/2017-392dt. 28.10.2017
obtained under RTI Act,2005.
Ex.AE.No.35. Copy of order dated 09.04.2018 passed on
.
application under Sec. 5 of the Limitation
Act by Ld. Sub Divisional Collector,
Solan, H.P. obtained under RTI Act,2005.
Caveat Petition dated 23.04.2018 filed by
petitioner against order dated 09.04.2018
Ex.AE.No.36.
passed on Section 5 of the Limitation Act
by ld. S.D.C. Solan before the ld.
Divisional Commissioner.
Ex.AE.No.37. Certified copy of the order dated
23.04.2018 of the Ld. Divisional
Commissioner, Shimla without
considering the Caveat Petition filed by
petitioner obtained under RTI Act,2005.
Ex.AE.No.38. Certified copy of the order dated
11.05.2018 of Ld. Financial
Commissioner, Shimla, staying the
proceedings passed by Ld. Divisional
Commissioner, Shimla, and calling for the
records obtained under RTI Act,2005.
Ex.AE.No.39. Certified Copy of order dated 11.05.2018
passed by ld. JMIC, Solan, on
Cancellation Report.
Ex.AE.No.40. Certified Copy of list of share of
shareholder allegedly forged by the
officials of the ld. LAC Solan obtained
under RTI Act,2005 from office of the
Land Acquisition collector.
Ex.AE.No.41. Certified Copy of requisition dt.22.8.2013
filed by counsel for obtaining the certified
copies of Award No.3/2013 before the
Copying Agency obtained under RTI
Act,2005.
.
Ex.AE.No.42. Certified Copy of receipt of compensation
amount released on 25.06.2014 by the ld.
LAC Shimla at Solan obtained under RTI
Act,2005.
Ex.AE.No.43. Certified Copy of amended Reference
No.N.T.L.O. No.751-54 dated 22.12.2017
under section 18 and 30 of the LA Act
obtained under RTI Act,2005.
Ex.AE.No.44. Copy of information required under
Section 19 of LA Act in respect of Award
No.3/2013 filed by ld. LAC Shimla at
Solan alongwith amended reference
No.N.T.L.O. No.751-54 dated 22.12.2017
before Hon'ble Court.
Ex.AE.No.45. Certified copy of Application under
Section 151 C.P.C. titled as Smt. Neerja
& Others versus State of H.P. & Others
filed before ld. Trial Court with prayer to
consolidate the land Reference
No.11ADJ-II/4 of 2014 with amended
land reference forwarded to Hon'ble
District Judge vide Notice No.N.T.L.O.
No.751-54 dated 22/28.12.2017
(No.3ADJ-II/6 of 2018).
Ex.AE.No.46. Certified Copy of Order dated 20.07.2018
passed on C.M.A. No.4ADJ-II/6 of 2018.
