[2009] 15 (ADDL.) S.C.R. 689

KAMRUL ISLAM ALVI

STATE OF M.P. (Civil Appeal No. 7312 of 2009)

NOVEMBER 4, 2009

[V.S. SIRPURKAR AND DEEPAK VERMA, JJ.]

Land Acquisition Act, 1894 - s. 25 (Before Amendment Act of 1984) - Land acquired - Award of compensation - In Reference, land-holder in addition to enhancement of C compensation for acquired land, claiming compensation of Rs. 25, 0001for Water Reservoir and Sluice Gate - Making separate claim of about R~. 6. 5 lakhs, for the Reservoir and Sluice Gate before Land Acquisition Officer - Reference Court remitting the case to ascertain the compensation - Land D Acquisition Officer determines the compensation at about Rs. 24, 0001- - Reference for enhancement again remitted - Land Acquisition Officer upholding his earlier order - Reference Court granting award of about Rs. 5 lakhs - High Court setting aside the award holding that prior to 1984 amendment, only E the amount claimed, to be paid - On appeal, held: High Court failed to see that claimed amount was Rs. 6.5 lakhs -Award by Reference Court was justified.

Appellant's land was acquired under Land Acquisition Act, 1894. Dissatisfied with the award of F compensation, he filed application before Reference Court, claiming Rs. 25,0001on account of Water Reservoir and Sluice Gate, in addition to the ' compensation amount for the acquired land. He also filed

an application before Land Acquisition Officer claiming G compensation of Rs. 6,46,579.951for the Water Reservoir and Sluice Gate. Reference Court observing that it cannot exercise original jurisdiction, remitted the matter

689 H

A to Land Acquisition Officer for fixation of the compensation. Land Acquisition Officer awarded Rs. 43,463. 75. Dissatisfied, appellant filed application for reference claiming a sum of Rs. 6,46,579.95. Reference Court remanded the matter to Land Acquisition Officer for B assessment afresh. Land Acquisition Officer, again granted Rs. 43,463/- as compensation. Appellant, once again filed application for Reference. Reference court awarded a sum of Rs. 5,45,738/- as compensation for the Reservoir and Sluice Gate. Respondent-State approached -J c High Court, whereby the order of reference court was set aside. Hence, the present appeal.

Allowing the appeal, the Court

HELD: 1.1. The reasoning of the High Court that u/s.

D 25 of Land Acquisition Act, 1894 which existed prior to 24.9.1984, only those amounts would be payable to the appellant which have been claimed specifically, does not ci appear to be borne out from the record. From the facts it is crystal clear that a sum of Rs.6,46,5V9.95 was claimed E for Water Reservoir and Sluice Gate. Counsel for the State

had probably due to bonafide mistake not brought to the notice of the court, appellant's application/statement of claim claiming specifically a sum of Rs. 6,46,579/- as compensation for Water Reservoir and Sluice Gate.

F [Paras 15, 16 and 20] [694-E-G; 695-F-G]

J,..

2. Once the order of reference court came to be passed, wherein it was categorically mentioned that the amount claimed for Water- Reservoir and Sluice Gate be assessed at Rs. 6,46,579.95, and matter stood remitted to G the Land Acquisition Officer, the parties went to trial with the clear understanding that what has been claimed by the appellant for the Water Reservoir and Sluice Gate was, fr

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,. not at the rate of Rs.25,000/- only. Against that order no r appeal was preferred by the State and the said order had H

KAMRUL ISLAM ALVI v. STATE OF M.P. 691

attained finality. [Paras 18 and 19] [695-C-E]

CIVIL AP PELLA TE JURISDICTION : Civil Appeal Nos. 7312 of 2009.

From the Judgment & Order dated 02.04.2007 of the High Court of Madhya Pradesh at Jabalpur in First Appeal No. 392 B of 1995.

Pragati Neekhra, Suryanaryana Singh, for the Appellant.

Naveen Sharma, 8.S. Banthia, for the Respondent.

The Judgment of the Court was delivered by

DEEPAK VERMA, J. 1. Leave granted.

2. Appellant's land _admeasuring 3.10 acres situated at village Pehantala, Tehsil & District Hoshangabad falling in D $Urvey No. 15, was acquired for construction of Bagda Branch :: Canal. A notification was issued under Section 4 of the Land Acquisition Act, 1894 (for short 'the Act') on 9.11.1973. The Land Acquisition Officer passed an award dated 21.2.1975 determining t!l~ _a_mount .ot compensation -payable to the E appellant. He assessed the compensation at Rs. 6,523.95. The said compensation was accepted by the appellant under protest and reference was sought to be made to the Reference Cburt by filing an application under Section 18 of the Act.

3. Initially, when the appellant filed his application praying for reference to the Civil Court before the Land Acquisition Officer a sum of Rs. 25,000/- was claimed on account of water reservoir and sluice gate constructed thereon, which was in addition to a claim of compensation of Rs. 15,500/- in respect G of the acquired land. However, record shows that appellant had afso filed another application by way of statement of claim on 22.3.78 before the Land Acquisition Officer, Hoshangabad, praying therein that compensation for water reservoir and sluice gate installed thereon should be payable at Rs.6,46,579.95.

4. Accepting the contention of the appellant that the Land Acquisition Officer had not awarded compensation with respect

~. _to the water reservoir and the sluice gate, the Reference Court,

while noting that it cannot exercise the original jurisdiction of t Land Acquisition Officer, vide order dated 05.07.1983, remitted

B the matter to the Land Acquisition Officer for fixation of compensation with respect to water reservoir and sluice gate.

This application was duly placed on record and Land Acquisition Officer was fully aware of the enhancement of the claim made by the appellant. , -4 ,, c

5. However, the Land Acquisition Officer vide his award dated 28.10.1983 even though considered that appellant had claimed Rs. 6,46,579.95, as compensation towards water reservoir and sluice gate but in his wisdom accepting the evaluation report of the Irrigation Ministry and rejecting that of D an Engineer he awarded a sum of Rs.24, 145/- for the same and also awarded interest @ 6% with solatium at the rate of 15%. Thus, the total amount came to be Rs.43,463.75. ,,..- .......

6. Feeling dissatisfied therewith, the appellant preferred

E another reference being Reference No. 46/84.

7. It is also pertinent tomention here -that-before the. ---------- Reference Court, that is, First Additional District Judge, Hoshangabad in Reference Case No. 46/84 in the statement

F of claim filed by the appellant on 24.11.1984, he had specifically claimed a sum of Rs.6,46,579.95 as compensation for the . water reservoir and sluice gate installed therein.

8. Order dated 05.07.1983 passed by Reference Court makes it clear that award was contested mainly on two grounds.

G Firstly, that the land sought to be acquired was irrigated and market value was Rs. 5000/- per acre and secondly, the compensation regarding Bandhan i.e. water reservoir and sluice gate should have been fixed at Rs. 6,46,579.95. The Reference Court was of the opinion that the compensation for

KAMRUL ISLAM ALVI v. STATE OF M.P. 693

[DEEPAK VERMA, J.]

the water reservoir and sluice gate had not been assessed, A therefore, matter deserved to be remanded to the Land Acquisition Officer.

9. Following is the relevant and operative part of the order dated 5.7.1983: B

"In the result the reference is sent back to the Land Acquisition Officer with direction that it shall fix the compensation regarding the acquired Bandhan and gates.

The evidence adduced in the Court will be read as evidence before the Land Acquisition Officer after fixing c

-4 the compensation it is contested by the applicant then the • Land Acquisition Officer may again make reference as per law. Parties to appear before Land Acquisition. Officer."

( Sd/- ) D

First Addi.Judge to the Cou~ of District Judge.

Hoshangabad.

10. After remand by Reference Court to the Land E Acquisition Officer, fresh award came to be passed on 26.10.1983. In the same, despite specific direction issued by Reference Court, as noted earlier, the amount of compensation for water reservoir and sluice gate was again fixed only at Rs. 43,463/-. The appellant herein once again filed applic, ation F under Section 18 of the Act praying for reference to the Civil .

Court for grant of adequate and proper compensation for the said reservoir and sluice gate.

11. The Reference Court vide order dated 20.06.1994, after considering the evidence available on record and relying G

on a decision of the High Court of Punjab & Haryana in the case

-i of Radhey Shyam vs. State of Haryana AIR 1981 (P&H) 57 fixed a sum of Rs.5,45, 738 as compensation for the reservoir and sluice gate together with 30% solatium and interest as required to be paid to the appellant under the provisions of the H

A Act. . ~''

12. Feeling aggrieved by the said order/award passed in Reference Case No. 46/84 (old No. 1/77) on 20.6.1994, respondent -the State of Madhya Pradesh preferred an appeal B in the High Court of Madhya Pradesh at Jabalpur under Section 54 of the Act.

13. Vide the impugned judgment and order dated 2.4.2007, a Division Bench of the High Court of Madhya Pradesn at Jabalpur was pleased to set aside the award dated C 20.06.94 passed by Reference Court in favour of the appellant

and the compensation of Rs.43,463 for water reservoir arid sluice gate, as was fixed by the Land Acquisition Officer after remand, has been upheld.

I. o

14. Hence this appeal..

15. Critical examination1 and perusal of the impugned order passed by the High Court shows that it proceeded on the assumption that appellant had not claimed amount of Rs. 6,46,579.95 as compensation for water reservoir and sluice E gate and he had confined his claim only at Rs. 25,000/- for the same. ___ ..

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16. It appears to usthat theleamed Government Advocate, who appeared before the Oivision , Bench, had probably due to •F bona fide mistake not br.ought .to the notice of the Court, appellant's application/statement of claim dated 22.3.1978 claiming pacifically a sum of Rs. 6,46,579/- as compensation for water reservoir and sluice gate.

..._

17. Een though, this fact also finds place in the first order

v passed by /Reference Court on 5. 7.1983 wherein, in the second part of th~ said order, which is relevant for the purpose of deciding the said appeal, it has been mentioned as under:

"The applicant has contested the award on two grounds -i firstly_ the acquired> land was irrigated one and the works

KAMRUL !SLAM ALVI v. STATE OF M.P. 695

[OEEPAK VERMA, J.]

value of it at the time of acquisition was Rs. 5000/- per acre A hence he is entitled to Rs. 15,500/- as compensation for the land, and secondly, the land acquisition officer has not fixed the compensation regarding the Bandhan and its sluice gates fixed in the said Bandhan for which the appellant is entitled to Rs.6,46,579.95 P as B compensation."

18. It is not disputed before us that against the said order passed by Reference Court on 5. 7 .1983, no appeal was preferred by the State and the said order had attained finality. C That being so, it can safely be presumed that respondent-State was fully satisfied with the said order passed by Reference Court on 5. 7.1983. In the said order, it is categorically mentioned by the learned Judge of the Reference Court that the amount claimed by appellant for water reservoir and sluice gate be assessed at Rs.6,46,579.95.

19. Once this order came to be passed and matter stood remitted to the Land Acquisition Officer, obviously, the parties went to trial with the clear understanding that what has been claimed by the appellant herein for the water reservoir and E sluice gate was as mentioned hereinabove and not at the rate of Rs.25,000/- only as was claimed earlier.

20. The rei!lsoning qt the High Court that under Section 25 of the Act, which existed prior to 24.9.1984, only those amounts would be payable to the appellant which have been claimed F specifically, does not appear to be borne out from the record.

In the teeth of the order dated 5. 7.1983, appellant's application dated 22.3.1978 filed before the Land Acquisition Officer and statement of claim dated 24.11.1984 filed by the appellant, it was crystal clear that a sum of Rs.6,46,579.95 was claimed for G water reservoir and sluice gate. Thus, the reasoning of the High

~ Court does not appear to be legally tenable.

21. Obviously, it appears to be a bona-fide mistake on the part of the learned Government Advocate who did not notice H

A the Order dated 5. 7 .1983 and the appellant's earlier application

filed before the Land Acquisition Officer on 22.3.1978 wherein "" a specific claim was made for awarding compensation for the water reservoir and sluice gate at Rs. 6,46,579.95. That being so, we are of the opinion that looking to the matter from any B angle, the impugned judgment cannot be sustained in law. It is ' hereby set aside and quashed. The aard of the Reference Court dated 20.6.1994 in Reference Case No. 46/84 (old No. 1 /77) is hereby restored with all consequential benefits as mentioned therein.

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22. The appeal stands allowed to the aforesaid extent with

\. costs throughout. Counsel's fee Rs. 10,000/·,

K.K.T.

Appeai allowed.

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