IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No.1234 of 2011 Decided on: Mar. 16, 2011. Kundlu Devi and another …….Petitioners. Versus State of H.P. and others. …….Respondents. _______________________________________________________________________ Coram The Hon’ble Mr. Justice Kurian Joseph, Chief Justice The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting? yes. For the petitioners : Mr.Dushyant Dadwal, Advocate. For the respondents : Mr.R.K. Bawa, Advocate General, with Mr.Ankush Dass Sood, Additional Advocate General with Mr.J.K. Verma, Deputy Advocate General. ------------------------------------------------------------------------------------------ Justice Kurian Joseph, C.J. (Oral) In order to adjudicate the present issue raised in this petition, following questions arise for determination: i) Whether the rent or damages for use and occupation of the land for a period prior to the Section 4(1) Notification under the Land Acquisition Act is a component of compensation under the Act? ii) If so, for such compensation, whether interest at the rates provided under the Act is payable? iii) After the stages of award, reference to civil court and appeal to the High Court, whether claim to such damages can be independently pursued? iv) Whether such grievances after exhausting the remedies under the Act can be pursued in a writ petition? 2. The writ petition is filed with the following prayers: “a) That the respondents may kindly be directed to determine the amount of rent or damages for use & occupation of the property of the petitioners form the date of possession i.e. 10- 2 05-1960 to the date of notification i.e. 31.12.1994 of the property of the petitioners & after determining the same, the same may please be ordered to be paid to the petitioners along with interest @ 18% from the date of possession till the date of payment to the petitioners. b) That the respondent may also be directed to produce the entire record of the petitioner’s case before this Hon’ble Court to show unto this Hon’ble Court that how best & in what illegal & arbitrary manner a citizen can be deprived of his right to property without any due process of law, so that in future the same illegality may not be repeated with any other citizen in the state. c) That the respondents may please be directed to complete the entire exercise in this regard within a period of 4 months from the date of order & in the meantime they may also be restrained from recovering the amount of interest which stands paid to the petitioners in the year 1998, which may please be ordered to be adjusted fro m the amount of compensation of rent or damages for use & occupation of the property of the petitioners to be determined by the respondents qua which the respondents has initiated proceedings before the Court of Ld. Distt. Judge, Shimla, H.P.” 3. It is seen that the petitioners were not satisfied with the award dated 9.8.1995 and hence they had pursued their grievance before the Reference Court leading to Annexure P-1, order. The Civil Court, as per Annexure P-1 order, granted certain reliefs. Still not satisfied, the matter was pursued in RFA No.155 of 1998 before this Court. The appeal was disposed of vide judgment dated 28.6.2007. 4. The contention of the learned counsel for the petitioners is that though the grievance with regard to quantum was dealt with, the grievance with regard to the claim for rent and occupation charges during the period the property was in possession of the Government has not been dealt with. According to the petitioners, they are entitled to the 3 same in view of the decision of the Apex Court in R.L. Jain Versus DDA, (2004) 4 Supreme Court Cases 79. We do not think that it will be proper for this Court at this stage in proceeding under Article 226 of the Constitution of India to go into the question as to whether the petitioners are entitled to that component of compensation. That grievance the petitioners have pursued in accordance with the procedure prescribed under the Land Acquisition Act, 1894 initially before the Collector, thereafter before the Civil Court and finally in appeal before the High Court. According to the petitioners, though this grievance was raised, the same has not been adverted to. If that be so, a civil writ petition or for that matter any other collateral proceeding is not the remedy. All contentions, which a party might and ought to have taken, should be taken in the original proceedings and not thereafter. That is the well settled principle under Order II Rule 2 CPC. Order II Rule 2 reads as follows: “2.Suit to include the whole claim. – (1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court. (2) Relinquishment of part of claim. – Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished. (3) Omission to sue for one of several reliefs. – A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted.” 5. This Rule is based on the principle that the defendant shall not be vexed twice for one and the same cause. The Rule also seeks to prevent two evils, one the splitting of claims and the other splitting of remedies. If a plaintiff omits any portion of the claim or omits any of the remedies in respect of the cause, he shall not be permitted to pursue the 4 omitted claim or the omitted remedy. The requirement of the Rule is that every suit should include the whole of the claim which the plaintiff is entitled to make in respect of a cause of action. Cause of action is a cause which gives occasion for and forms foundation of the suit. If that cause of action enables a person to ask for a larger and broader relief than to which he had limited his claim, he cannot thereafter seek the recovery of the balance of the cause of action by independent proceedings. This principle has been also settled by the Apex Court in Sidramappa versus Rajashetty, AIR 1970 SC 1059. 6. Order II Rule 2 applies also to writ proceedings. The left out portion of a cause of action cannot be pursued in a subsequent writ proceedings. All claims which a petitioner might and ought to have taken, should be taken in one proceedings and only in one proceedings. {See the decision of the Supreme Court in Commissioner of Income-tax vs. T.P. Kumaran, 1996(1) SCC 561}. 7. Equally, a person who has filed the suit seeking certain relief in respect of a cause of action is precluded from instituting another suit for seeking other reliefs in respect of the same cause of action. He shall not be entitled to invoke the writ jurisdiction of the High Court for obtaining the very same relief. In other words, if a second suit is barred, a writ petition would also be barred. What is directly prohibited cannot be indirectly permitted. That is the principle underlying under Order II Rule 2 CPC. 8. The Land Acquisition Act, 1894 provides for taking possession of the land sought to be acquired only after the issuance of Section 4(1) Notification. However, there may be exceptional circumstances in view of the possibility of procedural delay and in view of impending public interest, even though an owner himself may volunteer 5 to use the land, pending action under Section 4(1) of the Land Acquisition Act. In such a situation, the title continues to vest with the land owner, the possession alone is that of the Government. In such circumstances, the land owner is not entitled to the compensation as provided under Section 23(1A) of the Land Acquisition Act since the very purpose of the Land Acquisition Act is to provide for compensation in respect of the acquired land. That does not mean that the land owner is left without any relief. He would still be entitled to get rent or damages for the use and occupation of the land for the period prior to the Section 4(1) Notification. This principle is also referable to the scheme under Sections 35, 36 and 48 of the Land Acquisition Act. In such circumstances, such rent or damages for the use and occupation of the land prior to the issuance of Section 4(1) Notification is a component of compensation which the land owner is entitled to claim before the Collector and if not satisfied, to be pursued before the civil court in a reference under Section 18 of the Land Acquisition Act. To the extent relevant Section 18(1) reads as follows: “Any person interested who has not accepted the award may, by written application to the Collector, require that the matter be referred by the Collector for the determination of the Court, whether his objection be to the measurement of the land, the amount of the compensation, the persons to whom it is payable, or the apportionment of the compensation among the persons interested.” A person not satisfied with the compensation awarded by the Collector is hence entitled to pursue all his non-satisfied grievances under Section 18, before the civil court. 9. Then comes the question of interest. Land Acquisition Act provides for interest under Section 34, which reads as follows: “34. Payment of interest. – When the amount of such compensation is not paid or deposited on or before taking possession of the land, the collector shall pay the amount 6 awarded with interest thereon at the rate of nine per centum per annum from the time of so taking possession until it shall have been so paid or deposited: Provided that if such compensation or any part thereof is not paid or deposited within a period of one year from the date on which possession is taken, interest at the rate of fifteen per centum per annum shall be payable from the date of expiry of the said period of one year on the amount of compensation or part thereof which has not been paid or deposited before the date of such expiry.” 10. It may be seen that the provision contemplates the payment of compensation after the same has been determined. However, Section 23(1A) provides for a situation of payment of compensation in case the land has been taken possession of, after Section 4(1) Notification but before passing the award. That rate is 12%. But the cases where the possession of the land is taken prior to issuance of Section 4(1) Notification are neither covered under Section 23(1A) nor under Section 34. The Apex Court had an occasion to deal with such a situation in R.L. Jain vs. DDA, (2004) 4 Supreme Court Cases 79 (supra), wherein it has been held that in such a situation, the interest that is payable will only be at prevailing bank interest. At paragraph 18, it has been held as follows: “18. In a case where the landowner is dispossessed prior to the issuance of preliminary notification under Section 4(1) of the Act the Government merely takes possession of the land but the title thereof continues to vest with the landowner. It is fully open for the landowner to recover the possession of his land by taking appropriate legal proceedings. He is therefore only entitled to get rent or damages for use and occupation for the period the Government retains possession of the property. Where possession is taken prior to the issuance of the preliminary notification, in our opinion, it will be just and equitable that the Collector may also determine the rent or damages for use of the property to which the landowner is entitled while determining the compensation amount payable to the landowner for the acquisition of the property. The provisions of Section 48 of the Act lend support to such a course of action. For delayed payment of such amount appropriate interest at prevailing bank rate may be awarded.” 7 11. Thus, in a situation where the land is in possession of the Government prior to the issuance of the Section 4(1) Notification under the Land Acquisition Act, a land owner will be entitled to claim rent or damages for the use and occupation of the land for the said period. It is to be claimed as component of compensation and considered while passing the award. However, the rate of interest for such rent or damages would only be at the prevailing bank rates. 12. In view of the above circumstances, any contention the petitioners have raised before any forum, if has not been adverted to or addressed, it is for the petitioners to take recourse to their remedy either by way of review or by way of challenge to the judgment in the appeal as per the procedure prescribed under law and hence a Civil Writ Petition or Civil Miscellaneous Petition (Main) Original is not the remedy. 13. Therefore, this writ petition is dismissed without prejudice to the liberty to the petitioners to take recourse to their remedies either by way of review or by way of challenge to the judgment in RFA in accordance with the procedure prescribed under law. 14. In view of the final disposal of the main petition, the pending application(s), if any, also stand disposed of. (Justice Kurian Joseph), Chief Justice Mar.16, 2011 (Justice V.K. Ahuja), (tilak/pankaj) Judge.