Pralhad & Ors vs State Of Maharashtra & Anr

Pralhad & Ors. ...Appellant(s)

- Versus -

State of Maharashtra and another ...Respondent(s)

J U D G M E N T

GANGULY, J.

1. The relevant facts common in these appeals

are that a preliminary notification dated

5.03.1983 was issued under Section 4 of the

Land Acquisition Act, 1894 (hereinafter

referred to as, `the Principal Act') in

respect of the land at Ghonga Tank in

village Ghonga, Taluk Barshitakli, Akola,

Nagpur. It was followed by a notification

1 under Section 6 of the Principal Act on

28.07.1983.

2. The Land Acquisition Collector passed his

award on 1.03.1984, awarding Rs.3600/- per

acre for the acquired lands. Landowners,

being aggrieved, filed a Reference

application under Section 18 of Act on

5.04.1984, for enhancement of compensation.

3. Meanwhile, the Land Acquisition (Amendment)

Act, 1984, being Act 68 of 1984

(hereinafter `the Amendment Act') received

the assent of the President on 24.09.1984

for amending the Principal Act. The

amendment was made applicable to every

pending proceeding for acquisition of any

land under the Principal Act and which were

pending on 30.04.1982.

4. On 25.04.1985, the Additional District

Judge, Akola, in the Reference Proceeding

2 enhanced the compensation to Rs.13,000/-

per acre, with solatium at the rate of 30%

as per the amendment and interest at the

rate of 9% p.a. from the date of

possession.

5. The State of Maharashtra challenged the

award of the Reference Court in the High

Court of Bombay (Nagpur Bench), Nagpur. The

landowners did not file any appeal or

cross-objections against the judgment of

the Reference Court, but filed applications

under Order 41, Rule 33 of the Civil

Procedure Code (for short "CPC") claiming

additional compensation at the rate of 12%

p.a. on the market value for the period

commencing from the date of publication of

the award and interest at 9% p.a. on

enhanced compensation from the date of

taking possession for a period of one year

and at the rate of 15% for the further

3 period, in view of the amendment to the

Principal Act.

6. The High Court, by judgment and order dated

9.02.1999, dismissed the appeals of the

State of Maharashtra as well as the

applications filed by the landowners under

Order 41, Rule 33 of CPC. The High Court

relied on various judgments of this Court

and held that it had no jurisdiction to

award additional benefits under Section 23

(1A) of the Land Acquisition Act, 1894,

while confirming the award of the Reference

Court.

7. The present appeals are filed by the

landowners before this Court, challenging

the dismissal of their application under

Order 41, Rule 33 of the CPC by the High

Court.

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8. The basic issue before the High Court was

whether in absence of an appeal or cross-

objection from the claimants, is it

permissible to grant additional benefits to

the appellants as provided in Section 23

(1A) of the Amendment Act?

9. The benefit which is given to the

landowners under the amendment provision,

which came by virtue of Section 15 of Act

68 of 1984, is now Section 23 (1A) of the

Principal Act. Section 23 (1A) of the

Principal Act runs as under:

"23(1A) In addition to the market value of the land, as above provided, the Court shall in every case award an amount calculated at the rate of twelve per centum per annum on such market value for the period commencing on and from the date of the publication of the notification under section 4, sub-section (1), in respect of such land to the date of the award of the Collector or the date of taking possession of the land, whichever is earlier.

Explanation.- In computing the period referred to in this sub-section, any period or periods during which the 5 proceedings for the acquisition of the land were held up on account of any stay or injunction by the order of any Court shall be excluded.]

(2) In addition to the market-value of the land as above provided, the Court shall in every case award a sum of [thirty per centum] on such market-value, in consideration of the compulsory nature of the acquisition.

10. The benefit of the aforesaid amended

provision to the landowners was provided by

Section 30 (1) of Act 68 of 1984. The said

Section 30, which was known as transitional

provision, read as under:

30. Transitional Provisions- (1) The provisions of sub-section (1-A) of section 23 of the Principal Act, as inserted by clause (a) of section 15 of this Act, shall apply, and shall be deemed to have applied, also to, and in relation to,-

(a) every proceeding for the acquisition of any land under the Principal Act pending on the 30th day of April, 1982 [the date of introduction of the Land Acquisition (Amendment) Bill, 1982 in the House of the People], in which no award has been made by the Collector before that date;

6 (b) every proceeding for the acquisition of any land under the Principal Act commenced after that date, whether or not an award has been made by the Collector before the date of commencement of this Act.

(2) The provisions of sub-section (2) of section 23 and section 28 of the Principal Act, as amended by clause (b) of section 15 and section 18 of this Act respectively, shall apply, and shall be deemed to have applied, also to, and in relation to, any award made by the Collector or Court or to any order passed by the High Court or Supreme Court in appeal against any such award under the provisions of the Principal Act after the 30th day of April, 1982 [the date of introduction of the Land Acquisition (Amendment) Bill, 1982, in the House of the People] and before the commencement of this Act."

11. The said transitional provision came up for

consideration before this Court in several

judgments and there was some divergence of

judicial opinion which was ultimately

settled by the Constitution Bench Judgment

of this Court in the case of K.S.

Paripoornan vs. State of Kerala and others,

(1994) 5 SCC 593.

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12. In the case of Paripoornan (supra) the

majority judgment was rendered by Justice

S.C. Agrawal. In rendering the majority

judgment their Lordship held that the

decision of this Court in Union of India

vs. Zora Singh, (1992) 1 SCC 673, is not

correct and in paragraph 70 of the judgment

the learned Judges held that the Parliament

has given a clear indication of its

intention in Section 30 (1), which was a

transitional provision. The learned Judges

held that since a clear intention has been

given in Section 30(1), there is no scope

for any speculation about the parliamentary

intention by reading Section 23(1A) in

isolation from Section 30(1) of the Act.

(See para 70)

13. The learned Judges also noted the purpose

of a transitional provision in the statute

8 and referred to Francis Bennion on

Statutory Interpretation and also to

Thornton on Legislative Drafting. Relying

on those treaties on interpretation, this

Court held that Section 23 (1A) and Section

30 are interconnected (See para 73, page

639).

14. In paragraph 74 at page 639 and 640 of the

report this Court, on a conjoint reading of

Section 23(1A) with Section 30(1), held as

follows:

"...A perusal of sub-section (1) of Section 30 of the amending Act shows that it divides the proceedings for acquisition of land which had commenced prior to the date of the commencement of the amending Act into two categories, proceedings which had commenced prior to 30-4-1982 and proceedings which had commenced after 30-4-1982. While clause (a) of Section 30(1) deals with proceedings which had commenced prior to 30-4-1982, clause (b) deals with proceedings which commenced after 30-4-1982. By virtue of clause (a), Section 23(1-A) has been made applicable to proceedings which had commenced prior to 30-4-1982 if no award had been made by the Collector in those proceedings before 30-4-1982. It covers (i) proceedings which 9 were pending before the Collector on 30-4-1982 wherein award was made after 30-4-1982 but before the date of the commencement of the amending Act, and

(ii) such proceedings wherein award was made by the Collector after the date of the commencement of the amending Act. Similarly Section 30(1)(b) covers

(i) proceedings which had commenced after 30-4-1982 wherein award was made prior to the commencement of the amending Act..."

15. In subsequent judgment, in Prem Chand and

others vs. Union of India, AIR 2010 SC

1308, following the ratio in Paripoornan

(supra) this Court granted relief to the

claimants in accordance with the provision

of Section 23(1A) of the Act. In that case

the land acquisition commenced on 22nd of

March 1978 and the award was passed on 25th

February 1983.

16. Keeping in mind the aforesaid declaration

of law, this Court holds that in the

instant case the acquisition proceeding

commenced with notification under Section 4 10 which is dated 5.3.1983 and the award was

passed on 1.3.1984. Therefore, the

landowners who were affected by the instant

acquisition proceeding were entitled to the

benefit of the amending provision under

Section 23(1A) in view of the ratio in

Paripoornan (supra).

17. Now, the only question which remains is

whether the landowners, without filing an

appeal before the High Court from the order

of the Reference Court, are entitled to the

aforesaid benefit on the basis of their

application under Order 41 Rule 33 of CPC.

18. The provision of Order 41, Rule 33 of 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

11 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 ought to have been made as the

case may require. The expression `Order

ought to have been made' would 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 (CPC, 15th Edition, pg. 2647)

12 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 Vanarsi vs. Ramphal, AIR 2004 SC 1989,

this Court construing the provisions of

Order 41 Rule 33 of 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 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

13 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. (See para 15 at

pg. 1997). It has also been held by this

Court in Samundra Devi and others vs.

Narendra Kaur and others, (2008) 9 SCC 100

(para 21) that this power under Order 41,

Rule 33 of CPC cannot be exercised ignoring

a legal interdict.

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21. In the instant case, the right of the

landowner to receive the benefit under

section 23(1A) of the Principal Act is

legally permissible in view of the majority

decision in Paripoornan (supra). Therefore,

the law declared by this Court in

Paripoornan (supra) is binding on the High

Court under Article 141 of the Constitution

and High Court is bound to follow the same,

especially when an application has been

made by the landowner under Order 41 Rule

33 of CPC.

22. In view of the aforesaid interpretation

given to Order 41 Rule 33 of CPC by this

Court, we are of the opinion that the High

Court denied the relief to the appellants

to which they are entitled in view of the

Constitution Bench decision in Paripoornan

(supra), by taking a rather restricted and

narrow view of the scope of Order 41 Rule

15 33 of CPC and also on a misconstruction of

the ratio in Paripoornan (supra).

23. For the reasons aforesaid, this Court holds

that the appellants are entitled to the

benefit of the amended provision of Section

23 (1A) of the Principal Act in view of the

clear law laid down by this Court in

Paripoornan (supra). The appeals are

allowed to the extent indicated above. No

order as to costs.

.......................J. (G.S. SINGHVI)

.......................J. New Delhi (ASOK KUMAR GANGULY) September 15, 2010

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