RSA No.2849 of 2001(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2849 of 2001(O&M) Date of decision: 27.4.2009 State of Haryana and others ......Appellants Versus Hakam Chand and others ......Respondents CORAM:- HON'BLE MR. JUSTICE RAKESH KUMAR GARG * * * Present: Ms. Maloo Chahal, DAG, Haryana for the appellants. Mr. J.R. Mittal, Sr. Advocate with Mr. Kashmir Singh and Mr. Lalit Sharma, Advocate for the respondents. * * * Rakesh Kumar Garg, J. This judgment shall dispose of 19 regular second appeals i.e. RSA Nos.2849 to 2861 of 2001 and 2088 to 2093 of 2003 as identical questions of law on identical facts, arise in these appeals. The plaintiff-respondents in all these appeals filed suit for declaration to the effect that they were entitled for compensation for their land which rest severed into the Bandh constructed on the bank of Ghaggar Nali between the River and flood embankment of land as detailed in each suit and as a consequential relief issuance of mandatory injunction directing the defendant-appellants to pay the compensation, was claimed. Brief facts of the cases of the plaintiffs are that they are owners in possession of land as detailed in the head note of each suit. The aforesaid land is in the close proximity of river Ghaggar and most of the land had come in between the flood embankment and the river. It was averred that the defendants acquired very small portion of the area vide Notification Exs.D1 to D4 for the purpose of constructing the Bandh on both RSA No.2849 of 2001(O&M) 2 sides of Ghaggar river and substantially affecting large unacquired area of the plaintiffs in between the river and flood embankment. The aforesaid action of the appellants was arbitrary and mala fide and the plaintiffs were entitled to compensation for the unacquired area. It was further averred in the suit that in the case in hand, the Govt. had paid compensation for the acquired area at the rate of Rs.2,00,000/- per acre to the farmers whose land had come under the Bandh but nothing was paid to the plaintiffs whose land had come in between the flood embankment and river. It was also alleged that the plaintiffs moved Civil Writ petition No.13687 of 1996 in which this Court gave a finding that on account of construction of embankment on both sides, land of the petitioners had become useless and directed the Civil Court to decide the disputed question of fact that as to what amount the plaintiffs were entitled to claim. Hence, the present suit. Upon notice, the defendants appeared and filed written statement. Averments made in the plaint were denied. It was further stated that the suit was not maintainable in the present form and was under valued for purpose of Court fee and jurisdiction and the same was liable to be dismissed with costs. On the pleadings of the parties, the following issues were framed by the trial Court:- “1. Whether the plaintiffs are entitled for compensation for the land which was rest severed into on the bank of the Ghaggar Nali as alleged? 2. If issue No.1 is proved, whether the plaintiffs are entitled for mandatory injunction as prayed for? OPD 3. Whether the suit is not maintainable in the present form? OPD 4. Whether the suit is under valued for the purpose RSA No.2849 of 2001(O&M) 3 of court-fee and jurisdiction? OPD 5. Whether the suit of the plaintiffs is liable to be dismissed with costs? OPD. 6. Relief.” The plaintiffs in their oral evidence examined Sham Lal Retd. Patwari Halqa Nea Dela Kalan as PW1, Hawa Singh Patwari as PW-2 and plaintiff No.3 examined himself as PW-3 and thereafter, the evidence of the plaintiffs was closed by their counsel after tendering documents Ex.P-1 to P-3. The defendant-appellants examined Surinder Kumar Jain, SDO, Sirsa as DW-1 and tendered into evidence Ex.D1 to Ex.D6. The plaintiffs also examined PW-4 Kashmiri Lal, Head Draftsman. After perusing the evidence on record and hearing the learned counsel for the parties, the trial Court decided issues No.1 to 3 in favour of the plaintiff-respondents. Issues No.4 and 5 were answered against the defendant-appellants for lack of evidence. While deciding the aforesaid issues, the trial Court observed that the plaintiff-respondents were owners in possession of the suit land which had fallen in between the Bandh as well as Ghaggar river and the value of the aforesaid land had been reduced due to the construction of the Bandh. It was further observed that the plaintiff-respondents were not given any compensation for the land in dispute and the market value of the disputed land was Rs.2,00,000/- per acre at the time of construction of the Bandh. Resultantly, the suit of the plaintiffs was decreed by the trial Court and they were held entitled to the compensation of the unacquired land in dispute which rested severed due to the construction of the embankment between the Ghaggar river and the Bandh at the rate of Rs.1,00,000/- per acre with a consequential relief of mandatory injunction directing the defendants to make the payment accordingly. RSA No.2849 of 2001(O&M) 4 Feeling aggrieved against the judgment and decree of the trial Court, the defendants filed an appeal before the Lower Appellate Court contending that the land in dispute was neither acquired nor the State had taken its possession and compensation at the rate of Rs.1200/- per acre in lieu of damage to their standing crop was already made, therefore, the plaintiff-respondents were not entitled to any compensation. It was further pleaded that the Civil Court had no jurisdiction to entertain and try the suit and there was no material on record to suggest that the plaintiffs suffer any damages or that the value of the unacquired land was substantially decreased due to the acquisition or construction of the Bandh. However, the arguments raised by the defendant-appellants before the Lower Appellate Court did not found favour and the appeal was dismissed by the District Judge, Sirsa vide impugned judgment and decree. While dismissing the appeal, findings of the trial Court on all the issues were affirmed. Still not satisfied, the defendants have filed the present appeal challenging the judgment and decrees of the Courts below raising the following substantial questions of law in the grounds of appeal:- “1. Whether in the facts and circumstances of the case, the Courts below have committed an error in not dismissing the suit filed by the plaintiff? 2. Whether the Courts below have committed an error in holding that the plaintiffs are entitled to compensation for the land, which has not been acquired by the State? 3. Whether the suit is maintainable when alternative and efficacious remedy under the Land Acquisition Act is available? RSA No.2849 of 2001(O&M) 5 4. Whether the Courts below have committed an error in holding that the value of the land in question has diminished in the absence of any oral or documentary evidence? 5. Whether the Courts below have committed an error by not appreciating that the Court of District Judge can only adjudicate upon the dispute of enhancement of compensation and that too only on reference to it by the Land Acquisition Collector? 6. Whether the Courts below have committed an error while entertaining the present suit when clear provisions are there in CPC, as to what are the matters to be considered and what are to be neglected?” At the time of motion hearing, learned counsel appearing on behalf of the appellants argued that the Civil Court had no jurisdiction to entertain the suit and the point in controversy could only be decided in a reference under Section 18 read with Section 23 of the Land Acquisition Act. Thereafter, the appeal was admitted for regular hearing. The operation of the judgment and decrees of the Courts below was also stayed. The appellants filed an application seeking vacation of stay order granted by this Court on 31.7.2001 and 26.9.2002. Vide order dated 29.7.2003, this Court ordered continuation of the stay order with a condition that in case the State of Haryana, loses the appeal, the amount of compensation as decreed by the Courts below would be payable along with interest at the rate of 12% per annum from the date of decree till its realization. Learned counsel for the appellants has vehemently argued that the compensation by the plaintiff-respondents could only be claimed RSA No.2849 of 2001(O&M) 6 under Section 18 read with Section 23 of the Land Acquisition Act and in view of these provisions, the suit of the plaintiff-respondents was not maintainable in the Civil Court and an appropriate remedy for them was to approach the Land Acquisition Collector because the grouse of the respondents was to the effect that most of their land had come in between the flood embankment and the river and because of that they had sought compensation of unacquired land due to the severance of land for which compensation could be claimed under the provisions of the Land Acquisition Act. It was further argued by the learned counsel for the appellants that there is no evidence on the file to prove that the value of the land which had come in between Ghaggar river on one side and of the Bandh on the other side, had decreased. The Courts below have given undue weightage to the oral testimony of the witnesses and there is no other documentary evidence on the file to corroborate the testimony of the witnesses produced by the plaintiff-respondents and therefore, the Courts below committed an error in holding that the value of the land in question had diminished and the plaintiff-respondents are entitled to compensation. Thus, on the basis of the aforesaid arguments, learned counsel for the appellants raised the following substantial questions of law which arises in this appeal: “1. Whether the suit is maintainable in the present form and the Civil Court had no jurisdiction and the point in controversy could only be decided in a reference under Section 18 read with Section 23 of the Land Acquisition Act? 2. Whether the Courts below have committed an error in holding that the value of the land in question has diminished in the absence of any oral or documentary RSA No.2849 of 2001(O&M) 7 evidence and the plaintiff-respondents are entitled to any compensation?” Learned counsel for the appellants has argued that this appeal be accepted and judgment and decrees of the Courts below be set aside and suit of the plaintiff-respondents be dismissed with costs. On the other hand, learned counsel appearing on behalf of the respondents has supported the impugned judgment and decrees of the Courts below and has argued that there is no express provisions under the Land Acquisition Act, 1894 which bars the jurisdiction of the Civil Court to determine the compensation for the land in dispute. Learned counsel further argued that the Courts below have determined the compensation on the basis of evidence on record and there is no evidence on record to challenge those findings given by the Courts below and thus, the appeals are liable to be dismissed. I have heard learned counsel for the parties and perused the record. If we have a glance at the main provisions of the Act, three propositions are established beyond the possibility of dispute, firstly, that the statute creates a right in the appropriate Government to acquire land needed for public and other purposes; secondly, that it confers upon the private individual whose land is thus compulsorily acquired a corresponding right to receive compensation therefore; and thirdly, while the Act provides for a summary determination by the Collector of area and the value of the land and of the apportionment of the compensation, it also provides for the judicial determination, by a special civil court, of the measurement for the land, of the amount of the compensation, of the persons to whom it is payable, and of its apportionment among the persons interested for the acquired land. It may also be relevant to mention that RSA No.2849 of 2001(O&M) 8 under the provisions of the Act, no specific bar is created ousting jurisdiction of the Civil Court. The Hon'ble Apex Court, in a recent judgment reported as State of Andhra Pradesh v. Manieti Laxmi Kantho Rao (D) by LRs and others, AIR 2000 SC 2220 has decided the question of jurisdiction of civil court. It was held as under:- “The normal rule of law is that civil courts have jurisdiction to try all suits of civil nature except those of which cognizance by them is either expressly or impliedly excluded as provided under Section 9 of the Code of Civil Procedure but such exclusion is not readily inferred and the presumption to be drawn must be in favour of the existence rather than exclusion of jurisdiction of the civil courts to try civil suit. The test adopted in examining such a question is (i) whether the legislative intent to exclude arises explicitly or by necessary implication, and (ii) whether the statute in question provides for adequate and satisfactory alternative remedy to a party aggrieved by an order made under it. Where a statute gives finality to the orders of the special tribunals jurisdiction of the civil Courts must be held to be excluded if there is adequate remedy to do what the civil Courts would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory Tribunal has not acted in conformity with the fundamental principles of judicial procedure.” RSA No.2849 of 2001(O&M) 9 It may also be relevant to mention here that the plaintiff- respondents had filed Civil Writ Petition No.13678 of 1996 in this Court. While disposing of the aforesaid civil writ petition, this Court passed the following order: “The petitioner can surely not compel the State Government to acquire the disputed land. The state of writ petitioners is that on account of the construction of embankment on both the sides, their land has become useless. May be their land is correct. However, this court cannot recorded a firm finding on the point whether the land has become useless or not because it would be a disputed question of fact. What amount the petitioners are entitled to claim even this question can be better decided by the Civil Court where evidence can be led by the parties. In view thereof, this writ petition is disposed of with the observations that the petitioners would be at liberty to approach the Civil Court. Whenever a civil suit is filed, the same be disposed of as expeditiously as the civil court can.” The argument of the learned counsel for the appellants that in view of the provisions of Section 18 and Section 23 of the Land Acquisition Act, the suit was not maintainable and the plaintiff-respondents should have approached the Land Acquisition Collector for determination of the compensation, is misconceived. The provisions of Section 18 and 23 of the Land Acquisition Act are applicable for determination of the compensation only in a case where the land is acquired. Undisputedly, in the present case, the respondents are not claiming compensation for the acquisition of their land and in fact, the compensation is being claimed by RSA No.2849 of 2001(O&M) 10 them for diminishing value of their land because of the Bandh constructed by the appellants which has resulted into less utilization of the land in dispute as the respondents are suffering recurring damages due to the fact that now the respondents are having only one crop per year and the land has been rendered useless. Moreover, under the provisions of Land Acquisition Act, no express bar of jurisdiction of the Civil Court has been raised even for determination of the compensation of the acquired land. Section 18 of the Land Acquisition Act only provides a special remedy for the persons whose land stood acquired, against the award made by the Collector, Land Acquisition, whereas Section 23 envisages the various factors to be taken into consideration by the Court while determining the amount of compensation for such acquired land. The judgments relied upon by the appellants before the Lower Appellate Court are not applicable to the facts and circumstances of the case. In Laxmi Chand and others vs. Gram Panchayat, Kararia and others, AIR 1996 (SC) 523, validity of acquisition proceedings was challenged in a writ petition which was dismissed by the High Court and thereafter, award under Section 11 was passed. Again validity of the same acquisition and of the award was challenged by filing civil suit for declaration and in those circumstances, the Hon'ble Supreme Court held as under: “3. It would, thus, be clear that the scheme of the Act is complete in itself and thereby the jurisdiction of the Civil Court to take cognizance of the cases arising under the Act, by necessary implication, stood barred. The Civil Court thereby is devoid of jurisdiction to give declaration on the invalidity of the procedure contemplated under the Act. The only right an aggrieved person has is to RSA No.2849 of 2001(O&M) 11 approach the constitutional Courts, viz., the High Court and the Supreme Court under their plenary power under Article 226 and 136 respectively with self-imposed restrictions on their exercise of extraordinary power. Barring thereof, there is no power to the Civil Court.” So, in the peculiar facts and circumstances of that case it was observed that jurisdiction of the civil court to take cognizance thereof is barred. Possibly, no one can dispute about the aforesaid observations, but in my view, the same would not come to the rescue of the defendants because the land in dispute of the plaintiffs was not acquired by the State nor any compensation for the land in dispute, which had rest severed from their other land, was paid to them, as contemplated under Section 23 of the Act. It is relevant to mention that in Hiraben and others v. State of Gujarat and others AIR 1987 Gujarat 225, in a suit claiming right, title and interest in the suit land, it was alleged that the State Government had acquired same portion of the land owned by the plaintiffs and also encroached upon some portion of land from the remaining land of the plaintiffs which was not acquired. It was held that the ordinarily civil Court had jurisdiction to try the suit because the subject matter of the suit was not that portion of land which was acquired but was that portion of land which was alleged to be encroached and which was not the subject matter of the acquisition proceedings. In the present case, it is not in dispute that the plaintiff- respondents are seeking compensation for the diminishing value of their unacquired land which got severed by the act of the appellants and was rendered useless. For the reasons recorded above, question No.1 raised by the RSA No.2849 of 2001(O&M) 12 learned counsel for the appellants is answered against the appellants and it is held that the Civil Court was competent to decide the subject matter of the suit. It is also relevant to mention here that learned counsel for the appellants was unable to point out any perversity in the determination of the compensation as granted by the Courts below. The Courts below have determined the amount of compensation to which the plaintiff-respondents are entitled, on the basis of evidence on record and there is not an iota of evidence to controvert the aforesaid findings. No perversity could be shown in the findings of the Courts below in this regard. Thus, the second substantial question of law is also answered against the appellants. Thus, I find no merit in these appeals. Dismissed. No costs. April 27, 2009 (RAKESH KUMAR GARG) ps JUDGE RSA No.2849 of 2001(O&M) 13