General Manager Northern Railway vs Des Raj & Others
2023 Latest Caselaw 14412 HP

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.

RFA No. 52 of 2014 & a/w RFA No. 196, 388 of 2014 & 9 and 30 of 2015

.

Reserved on: 19.08.2023

Decided on: 22nd September, 2023

RFA No.52 of 2014

General Manager Northern Railway .......Appellant

Versus

Des Raj & Others r to RFA No. 196 of 2014 .......Respondents

General Manager Northern Railway .......Appellant

Versus

Ajaya Kumar & Others .......Respondents

RFA No.388 of 2014

General Manager Northern Railway .......Appellant

Versus

Shiv Devi Kumar & Others .......Respondents

RFA No.9 of 2015

General Manager Northern Railway .......Appellant

Versus

Swami Narayan Puri & Others .......Respondents

RFA No.30 of 2015 General Manager Northern Railway .......Appellant

Versus

.

Raghubir Singh & Another .......Respondents

Coram

The Hon'ble Mr. Justice Virender Singh, Judge. Whether approved for reporting?1 Yes.

For the appellants: Mr. Shiv Pal Manhans, Senior Panel Counsel.

For the respondents: Mr. Lakshay Thakur & Mr. Dheeraj K. Vashisht, r Advocates for the respective

respondents.

Mr. Mohinder Zharaick, Mr. Tejasvi Sharma & Mr. H.S.

Rawat, Additional Advocate

General, for the respondent-

State.

Virender Singh, Judge.

The above titled appeals are being disposed of

by a common judgment, as all these appeals, have been

preferred by the General Manager, Northern Railway,

against the award dated 28.02.2012, passed by the Court of

learned District Judge, Una, District Una, H.P. (hereinafter

referred to as the 'learned trial Court).

2. Vide award dated 28.02.2012, the learned trial

Court had decided five Reference Petitions bearing Nos.45,

Whether the reporters of Local Papers may be allowed to see the judgment? Yes.

46, 47, 49 & 50 of 2009, by granting the following relief to

the petitioners, in the land reference petitions:-

"21. In view of findings on the issues above,

.

reference petitions are allowed with costs. The

petitioners are awarded compensation at the rate of Rs.700/- per square meter of land irrespective of the classification of land. Further they are held entitled for additional compensation at the rate of

10% of the compensation assessed of the total value of land acquired on account of severance of land. The petitioners shall further be entitled to all the statutory benefits like solatium, additional. compulsory acquisition charges under Section

23(1-A) of the Act as specified below:

1. Additional compulsory acquisition charges (solatium) at the rate of 30% on the market value as assessed above.

2. Additional compulsory acquisition charges at the rate of 12% per annum on the market value as assessed above for the period on and from the date of publication of notification under Section

4 of the Act of 1984 i.e. 12.3.2005 to the date of LAC's award or the date of taking of the possession of the acquired land

which ever is earlier.

3. Interest at the rate of 9% per annum

for one year on the enhanced amount w.e.f. 15.11.2006 and thereafter @ 15% per anum till the date of payment of the

amount in the court.

22. The reference petitions are answered accordingly. Memo of costs be prepared. An attested copy of the award be placed on each reference petition. Files after completion be consigned to Record Room."

4. For the sake of convenience, the parties to the

present lis are hereinafter referred to, in the same manner,

as were, referred to, by the learned trial Court.

5. Brief facts, leadings to the filing of the present

appeals, before this Court, may be summed up as under:-

5.1. The State of Himachal Pradesh has issued a

.

Notification under Section 4 of the Land Acquisition Act,

1894 (hereinafter referred to as the Act'), on 26.02.2005, for

acquisition of land for construction and laying Nangal-

Talwara Broad Gauge Railway line in revenue estate Panjoa

Kalan (Una).

5.2. By way of notification, the land detailed and

described hereinbelow had been sought to be acquired

Sr. Case No. & title Khewat/ Khasra No. Area in No. Khatauni No. Hects.

    1.     45/2009 Des     21/35 36 min 158/2,             0-00-80
           Raj Vs.                      164,               0-10-50



           Collector                    197/1              0-03-71
    2.     46/2009 Ajaya   24/39 min    163                0-09-30
           Kumar Vs. LAC                192/2              0-09-12




                                        159/1              0-07-67
    3.     47/2009 Shiv  2/2 min        196/1              0-47-94





           Dev Kumar Vs.                198/2              0-18-17
           LAC                          199/1              0-40-66
                                        200                0-06-69





                                        201/1.             0-00-72
    4.     49/2009 Swami 95/130 min     407/2              0-39-40
           Narayan Puri V               416/1              0-13-09
           LAC
    5.     50/2009        76/110        731/684/2          0-06-61
           Raghubir Singh               734/690/2          0-18-64
           etc. V. LAC                  737/692/1          0-05-37

5.3. As per mandate of the Act, the notification under

Section 4 of the Act, was given wide publicity. Thereafter,

the other codal formalities, as per Section 6 of the Act, were

completed and ultimately award No.8 of 2006, was passed.

The Land Acquisition Collector has assessed the market

value of the acquired land, as under:-

.

    Sr.    Class of land                 Average             Approved rate per
    No.                                  rates               square meter
    1.     Chahi/ABBi                    123-91              175-00





    2.     Barani ABBAL &                123-91              125-00
           Bagich Barani
    3.     Barani Doom                   123-91              100-00





    4.     Khairtar and Banjar           30-97               50-00
           Kadim
    5.     Gair Mumkin Abadi             30-97               175-00
    6.     Other Gair Mumkin             30-97               30-00

    7.     Kharakana                     30-97               50-00

5.4. Aggrieved from the said award, the petitioners

have preferred the reference petitions before the Land

Acquisition Collector, who has forwarded the same to the

learned trial Court, for adjudication.

6. In the reference petitions, the petitioners have

sought the market value of the acquired land, prevailing at

the time of issuance of notification, under Section 4 of the

Act. According to them, the acquired land was irrigated

one, whereas, the Land Acquisition Collector has wrongly

assessed the market value, as per the classification of the

land as 'Barani/Kharikana'. Even, the petitioners have also

produced a certificate from the I&PH Department,

demonstrating therein that the acquired land was covered

under the irrigation scheme of the Himachal Pradesh

Government. The commercial potentiality of the acquired

.

land has not been considered by the Land Acquisition

Collector. The value of the crop, standing on the acquired

land, has not been assessed. Other statutory benefits have

also not been given.

7. During the pendency of the above mentioned

reference petitions, vide order dated 25.10.2010, the

learned trial Court has consolidated the reference petition

Nos.46, 47, 49 and 50 of 2009, with reference petition

No.45 of 2009. Order dated 25.10.2010 is reproduced as

under:-

" At this stage, the petitioner had filed an application for consolidation of the present

reference petition Nos. 46/2009, 47/2009, 49/2009 and 50/2009 with reference petition

No. 45/2009. It is stated that land in all these reference petitions had been ordered to be acquired by same notification under Section

4 of the Land Acquisition Act. Single award had been passed in all these reference petitions. Land in all the reference petitions is in one locality/village. Consolidation of reference petitions is not opposed by the respondents. After taking consideration the facts and circumstances of the case, this court finds that it is expedient and in the interest of justice to consolidate reference petition No. 46/2009, 47/2009, 49/2009 and 50/2009 with reference petition No.45/2009. Evidence shall be recorded in reference petition No.45/2009 and shall be read in reference petitions Nos. 46/2009, 47/2009,

49/2009 and 50/2009. A copy of this order be placed in reference petition No. 45/2009. Put up with the connected reference petition on 24.12.2010."

.

8. When put to notice, these petitions were

contested by the respondents. Respondent No.1, filed the

reply, by taking the preliminary objections that the

petitioners are estopped from filing the present petition, as

the petitioners have not filed any objection, at the time of

enquiry under Section 9 of the Act.

9. On merits, the factual position, with regard to the

acquisition of land and assessment of the market value by

the Land Acquisition Collector, has not been disputed, by

asserting the fact that the adequate compensation has

been given, after considering the relevant facts.

10. Respondent No.2 (Railway) has filed its separate

reply, by taking the preliminary objections that the petition

is not maintainable; the petitioners have concealed the

material facts; petitioners have no cause of action; the

petitioners are estopped from filing the petitions, on

account of their act and conduct; the petitions are time

barred; and the petitions are not properly valued.

11. Like respondent No.2, factum of acquisition of

land has not been disputed, by respondents No.1 and 3, but,

according to them, adequate compensation has been given

to the petitioners.

12. Thus, a prayer has been made to reject the

.

reference petitions.

13. From the pleadings of the parties, the following

issues were framed by the learned trial Court in all the

petitions, vide order dated 25.10.2010:-

1. Whether the Collector Land Acquisition had not rightly determined the market value of the land under acquisition? OPP

2. Relief.

14. Thereafter, the parties to the lis were directed to

adduce evidence. After the closure of evidence, upon

hearing the learned counsel appearing for the parties, the

learned trial Court has awarded the compensation, as

mentioned above.

15. Feeling aggrieved from the said award, the

respondent-General Manager, Northern Railway, has

preferred the above mentioned Regular First Appeals before

this Court, on the grounds that the award has been passed

by the learned trial Court, without taking into consideration

the oral, as well as, documentary evidence, available on

record; the statements of the witnesses, especially, the

statement of Joginder Singh, Kanungo, Railway, has totally

been ignored, as he has categorically stated that the land

was inspected and thereafter compensation was assessed;

the acquired land is away from Abadies, commercial site

.

and roads; the learned trial Court, while deciding the

awards, impugned herein, has ignored the documentary

evidence, i.e., Ex.RW-1/A to RW-1/G; and the learned trial

Court has wrongly awarded 10% of the total value of the

acquired land as additional compensation, on account of

severance and fragmentation of the land of the petitioners.

16. Supporting the award passed by the Land

Acquisition Collector, it is the case of the respondent-

Railway that the learned trial Court has wrongly assessed

the market value of the acquired land, as Rs.700/- per

square meter, irrespective of the nature and character of

the land.

17. The award has also been assailed, on the ground

that the learned trial Court, has wrongly relied upon the

award Ex.PX, which was of village Katohar Khurd, adjoining

village of Panjo-Kalan, as there is nothing on record to show

that the subject matter of the reference petition, was having

any similarity with the land, which was the subject matter of

the award Ex.PX.

18. On the basis of the above facts, Shri Shiv Pal

Manhans, learned Senior Panel Counsel, has prayed that the

appeals, may kindly be accepted and the award impugned

.

herein, may kindly be set aside.

19. Per contra, Mr. Lakshay Thakur and Mr. Dheeraj

K. Vashisht, Advocates, appearing for the respective

petitioners, have sought the enhancement of the market

value of the acquired land, on the basis of the judgment

dated 9.5.2016, passed by a coordinate Bench of this Court

in RFA No.24 of 2010, titled as Vidya Sagar versus The

Land Acquisition Collector & Others, and its connected

matters.

20. Admittedly, the petitioners have not filed the

cross-appeals or cross-objections, but has made a prayer for

enhancement of amount of compensation, in view of the

judgment rendered by the coordinate Bench of this Court in

Vidya Sagar's case supra.

21. The learned trial Court, in the impugned award,

has granted the relief to the petitioners, after relying upon

the award Ex.PX. As per the award Ex.PX, passed by the

learned trial Court, pertaining to the land, situated in village

Katohar Khurd, and the notification under Section 4, in the

said case was issued on 25.02.2005, whereas, in this case,

the notification under Section 4 of the Act, was issued on

26.02.2005.

22. The learned Senior Panel Counsel, could not

.

satisfy the judicial conscience of this Court, as to how the

award Ex.PX, cannot be made basis to determine the

market value of the acquired land, prevailing, at the time of

issuance of notification, in the present case.

23. Learned trial Court has determined the market

value of the land, at the time of issuance of the notification,

under Section 4 of the Act, on the basis of the Award Ex.PX.

The question, which arises for determination, before this

Court, is that the said approach of the learned trial Court ,is

sustainable, in the judicial scrutiny or not.

24. Admittedly, the subject matter of Ex.PX, as well

as, the subject matter of the present lis was the land

acquired for construction of Nangal Dam to Talwara Railway

Line. Although, the petitioners have not produced any

documentary evidence to show that the subject matter of

lis, as well as, the land acquired in village Katohar Khurd,

was having the same or similar features, but, they have

probabilize this fact from the oral evidence.

25. PW-2, specifically, deposed, in his examination-

in-chief, that the value of the acquired land, is not less than

the land, acquired in Village Katohar Khurd.

.

26. Interestingly, on this aspect, this witness has not

been cross-examined, nor any suggestion has been put to

him that the value of the land, in two different villages, was

different, at the time of issuance of the notification, under

Section 4 of the Act.

27. PW-4 has also stated that village Katohar Khurd

is situated adjacent to their village and the land, in the

village, is having the same and similar features, that of the

acquired land. The factual assertion has not been rebutted

by the respondents, by leading any documentary evidence.

Even RWP-1, who is Kanungo, has feigned his ignorance,

whether the village Katohar Khurd is adjacent to village

Panjo Kalan and the value of the land, in both the villages, is

the same and similar. In such situation, the learned trial

Court, has rightly relied upon the award Ex.PX.

28. The award Ex.PX is in reference petition No.6 of

2008, filed by Jaspreet Kaur, whose land measuring

15-99-18 was acquired for construction of Railway Line,

between Nangal Dam to Talwara. The said land was

situated in Village Katohar Khurd, Tehsil Amb.

29. In the present case also, the land has been

acquired for the purpose of construction of Railway Line,

between Nangal Dam to Talwara. As held by the learned

.

trial Court, notification under Section 4 of the Act, in the

said case, was issued, one day prior to the notification

under Section 4 of the Act, issued in this case.

30. So far as the decision of this Court, in Vidya

Sagar's case supra, is concerned, the notification under

Section 4 of the Act, in those appeals, was issued on

25.02.2005, and the subject matter, i.e., acquired land, was

situated in Village Katohar Khurd, Tehsil Amb, District Una,

whereas, in the present case, the notification under Section

4 of the Act, was issued on 26.02.2005, i.e., one day after

issuance of the notification, in the said case.

31. Vide judgment dated 09.05.2016, delivered in

Vidya Sagar's case supra, the coordinate Bench of this

Court has decided the appeals preferred by the land

owners, whose land was acquired, as well as, the cross-

objections preferred by the respondents, whereas, in the

present case, no appeal/cross-objection has been preferred

by the petitioners, whose land has been acquired, for

construction of the Railway Line from Nangal Dam to

Talwara.

32. When, the land has been acquired for the same

purpose, then, the petitioners, in the present lis, are also

entitled to the benefit of the judgment passed by the

.

coordinate Bench of this Court in Vidya Sagar's case

supra, as the relief, in the present case, has been granted

by the learned trial Court, on the basis of the award Ex.PX,

which also pertains to Village Katohar Khurd and the

notification, under Section 4 of the Act, was issued on

25.02.2005. r

33. Merely, the fact that the petitioners have not

preferred the appeals against the award, does not preclude

this Court to grant the relief to them, as the purpose of the

Court, should be to grant 'just compensation' to the

person(s), whose land has been acquired, by the

respondents, for the same purpose, i.e., construction and

laying Railway Line from Nangal Dam to Talwara.

34. In this case, learned Senior Panel Counsel, could

not satisfy the judicial conscience of this Court, as to how

the award impugned herein, is liable to be interfered with,

on the basis of the evidence, so adduced. Rather, the

market value of the acquired land, as assessed by the

learned trial Court, vide award dated 28.02.2012, is liable to

be enhanced, in view of the decision of coordinate Bench of

this Court in Vidya Sagar's case supra. Relevant

paragraph 23 of the said judgment, is reproduced, as

under:-

.

" The classification of the acquired land as disclosed from the record is 'Chahi Avval, 'Barani Avval' 'Banjar Kadim, 'Khadkhan', 'Kharatair', 'Gair Mumkin Abadi' and 'Sehan Ahata' etc. etc.

The higher rates assessed by the Land Acquisition Collector are qua 'Chahi Avval' and 'Gair Mumkin Abadi' lands, touching State highway i.e. `1,000/- per square meter followed by 'Barani Avval' and 'Banjar Kadim' and 'Gair

Mumkin Abadi', touching State highway i.e. `800/- per square meter. Even the market value of the 'Chahi Avval', 'Gair Mumkin Abadi and 'Sehan Ahata' touching the link road has also

been determined @ `800/- per square meter. When the classification of the acquired land and

its proximity from the State highway or link road has nothing to do with determination of its market value and as the Land Acquisition Collector has determined `1,000/- per square

meter, the rate of 'Chahi Avval' land touching the State highway, all kind of land should have been assessed @ `1,000/- per square meter for the purpose of assessment of its market value.

Learned reference Court has to the contrary assessed the market value of all kind of acquired land @ `700/- per square meter by taking mean

of the rates determined by the Land Acquisition Collector of different category of land and keeping in mind its proximity from the State

highway or link road, which in view of the legal and factual position discussed hereinabove is not legally sustainable. The market value of the acquired land, therefore, is assessed @ `1,000/- per square meter (i.e. `3,80,000/- per kanal) and the compensation enhanced accordingly. The petitioners-claimants shall also be entitled to all statutory benefits i.e. solatium @ 30% on the market value of the acquired land as assessed above, additional charges @ 12% per annum on the enhanced amount of market value of the acquired land and also the interest."

35. In view of the discussion made above, there is no

occasion for this Court to allow the appeals filed by the

Respondent-General Manager Northern Railway. Rather, in

.

view of the decision of Vidya Sagar's case supra, the

market value of the acquired land is required to be

enhanced.

36. Now, the question, which arises, for

determination, before this Court, that in the absence of

appeal/cross appeal/cross-objection, the relief, on the basis

of the judgment in Vidya Sagar's case supra, can be

granted to the petitioners, or not.

37. The Hon'ble apex Court in Pralhad and Others

versus State of Maharashtra and Another, (2010) 10

Supreme Court Cases, 458, has held that the appellate

Court is empowered to pass any decree or make any order,

which ought to have been passed or made. The relevant

paragraphs 10 to 20 of the judgment is reproduced as

under:-

"18. The provision of Order 41 Rule 33 CPC is clearly an enabling provision, whereby the appellate court is empowered to pass any decree or make any order which ought to have been passed or made, and to pass or make such further or other decree or order as the case may require. Therefore, the power is very wide and in this enabling provision, the crucial words are that the appellate court is empowered to pass any order which to have been made as the case may require. The expression "order ought to have

been made" wo this obviously mean an order which justice of the case requires to be made.

This is made clear from the expression used in the said Rule by saying "the court may pass such further or other order as the case may require". This expression "case" would mean the justice of

.

the case. Of course, this power cannot be

exercised ignoring a legal interdict or a prohibition clamped by law.

19. In fact, the ambit of this provision has come up for consideration in several decisions of this Court. Commenting on this power, Mulla (Civil Procedure Code, 15th Edn., p. 2647) observed that this Rule is modelled on Order 59 Rule 10(4)

of the Supreme Court of Judicature of England, and Mulla further opined that the purpose of this Rule is to do complete justice between the parties.

20. In Banarsi v. Ram Phal this Court construing

the provisions of Order 41 Rule 33 CPC held that this provision confers powers of the widest amplitude on the appellate court so as to do complete justice between the parties. This Court further held that such power is unfettered by

considerations as to what is the subject-matter of the appeal or who has filed the appeal or whether the appeal is being dismissed, allowed or disposed of while modifying the judgments

appealed against. The learned Judges held that one of the objects in conferring such power is to

avoid inconsistency. inequity and inequality in granting reliefs and the overriding consideration is achieving the ends of justice. The learned

Judges also held that the power can be exercised subject to three limitations: firstly, this power cannot be exercised to the prejudice of a person who is not a party before the court; secondly, this power cannot be exercised in favour of a claim which has been given up or lost; and thirdly, the power cannot be exercised when such part of the decree which has been permitted to become final by a party is reversed to the advantage of that party."

38. Consequently, while exercising the powers under

Order 41 Rule 33 CPC, the market value of the acquired land

is enhanced from Rs.700/- per square meter to Rs.1000/-

.

per square meter, along with all statutory benefits, as

awarded by the learned trial Court. The appeals are

disposed of accordingly.

Pending applications, if any, also stand disposed

of.

Record be sent down.

( Virender Singh ) Judge September 22, 2023(ps)