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8c79d10f2daa-9 | Phuljharia Devi & Anr vs The State Of Bihar & Ors on 18 September, 2009 | The moment such an award is deemed to be a decree and the Civil Procedure Code is made applicable to the proceedings of the Act in terms of section 53 thereof, there would be hardly any scope for the petitioners to contend that a person aggrieved against any portion of the award or its execution would be entitled to maintain a writ petition. There being statutory remedy available in terms of the Act through the aegis of the Civil Court, the petitioners cannot be heard to say that they may have still a remedy under Article 226 of the Constitution after the execution case has been dropped on payment of amount of award under execution. This is precisely what has been decided by the Apex Court in the case of Swetamber Sthanakwasi Jain Samiti (supra) wherein the Apex Court noticing that the suit filed by the Samiti was pending before the Civil Court had held that a writ petition against an order of interim injunction and rejection of prayer for impleadment of a party was not maintainable and the order of the High Court allowing the writ petition was unsustainable. The relevant portion of the aforesaid judgment which would be directly applicable to the facts of the present case reads as follows: | https://indiankanoon.org/doc/49275886/ |
8c79d10f2daa-10 | Phuljharia Devi & Anr vs The State Of Bihar & Ors on 18 September, 2009 | " ... ... Though the jurisdiction of the High Court under Article 226 of the Constitution is not confined to issuing the prerogative writs, there is a consensus of opinion that the High Court will not permit this extraordinary jurisdiction to be converted into a civil court under the ordinary law. When a suit is pending between the two parties the interim and miscellaneous orders passed by the trial court against which the remedy of appeal or revision is available cannot be challenged by way of a writ petition under Article 226 of the Constitution of India. Where the civil court has the jurisdiction to try a suit, the High Court cannot convert itself into an appellate or revisional court and interfere with the interim/ miscellaneous orders of the civil court. The writ jurisdiction is meant for doing justice between the parties where it cannot be done in any other forum". | https://indiankanoon.org/doc/49275886/ |
8c79d10f2daa-11 | Phuljharia Devi & Anr vs The State Of Bihar & Ors on 18 September, 2009 | Here also position is somewhat the same. There is no dispute that the petitioners after finality of the award and the rate as determined by this Court and affirmed by the Apex Court had levied execution payment of amount in Execution Case No. 10/1996 and the executing court by an order dated 20.7.2001 had recorded that: | https://indiankanoon.org/doc/49275886/ |
8c79d10f2daa-12 | Phuljharia Devi & Anr vs The State Of Bihar & Ors on 18 September, 2009 | ^^ fMdzhnkj dh vksj ls fnukad 2-2-2001 dks nkf[ky vkosnu i= lapkfyr dj fMdzhnkj ds fon~ vf/koDrk fuosnu djrs gSa fd muds iw.kZ fcdk, jkf"k dk Hkqxrku ejhmu la0&2 }kjk dj fn;k x;k gS rFkk fMdzhnkj dk vc fdlh ejhmu ds fo:) dksbZ laca/k ugha jg x;k gsS A vr% mUgsa bl ckn dks okil ysus dh vuqefr nh tk; A lquk rFkk vfHkys[k dk vcyksdu fd;k A fMdzhnkj dk vc fdlh ejhmu ds fo:) dksbZ cdk;k ugha jg x;k gS rFkk fMdzhnkj bl btjk; okn dks okil ysuk pkgrs gsaS A vr% fMdzhnkj dh izkFkZuk Lohd`r dh xbZ A ckn iw.kZ Hkqcrku esa fMdzhnkj }kjk okil fy, tkus ds dkj.k [kkfjt fd;k x;k A ** It has to be noted that this order is now being said to be a fraudulent order as the petitioners claiming to be illiterate person are said to be misled by the society. It would be, however, difficult to accept even this submission because the agreement between the society and petitioner no.1, on record in the counter affidavit of the society, not only takes note of the entire history of the land acquisition as also the rate of enhancement of the award given by the civil court but also its modification by this Court and affirmance by | https://indiankanoon.org/doc/49275886/ |
8c79d10f2daa-13 | Phuljharia Devi & Anr vs The State Of Bihar & Ors on 18 September, 2009 | enhancement of the award given by the civil court but also its modification by this Court and affirmance by the Apex Court in the preamble of the agreement and under the relevant portion of the agreement it was clearly mentioned that irrespective of the claim of the decree holder she had settled the matter outside the court by arriving at the compromise by accepting payment of Rs. | https://indiankanoon.org/doc/49275886/ |
8c79d10f2daa-14 | Phuljharia Devi & Anr vs The State Of Bihar & Ors on 18 September, 2009 | 3,57,450/-. The agreement dated 30th January, 2001 being somewhat significant and in fact having a direct bearing to the issue involved in this writ application needs to be quoted hereinbelow:
"BEFORE NOTARY PATNA SADAR PATNA AGREEMENT This agreement made and entered into at Patna this 30th day of month of January 2001 between Smt. Fuljharia Devi, W/o Munaka Rai and Bhola Rai, S/o Munaka Rai of Paharpur, P.S. Gardanibagh, District Patna, hereinafter referred to as DECREE HOLDER in L.A. Execution Case No. 10 of 1996 (which expression shall, unless excluded by or repugnant to the context mean and include his heirs, administrators, assigns, legal representatives and/or successors-in- interest) of the ... FIRST PARTY.
AND POLICE EMPLOYEES CO-OPERATIVE HOUSE CONSTRUCTION SOCIETY LTD., Gandhi Vihar, Anisabad, Patna (Regd. No.20/ Patna, dated 23rd December, 1996) through its Secretary, Sri Krishnadeva Prasad Sinha resident of A-14 Gandhi Vihar, P.S. Gardanibagh, District Patna hereinafter referred to as the INTERVENOR, JUDGMENT DEBTOR NO.2 in L.A. Execution Case No. 10 of 1996 (which expression shall, unless it be repugnant to the context or meaning thereof mean and include its administrators, legal representatives, assigns nor nominee or nominees or successors-in-interest of ... SECOND PARTY. Whereas
(A) The decree holder solemnly | https://indiankanoon.org/doc/49275886/ |
8c79d10f2daa-15 | Phuljharia Devi & Anr vs The State Of Bihar & Ors on 18 September, 2009 | (A) The decree holder solemnly
affirms and declares that an area of 46.795 acres, of land in village PAHARPUR, P.S. Phulwari, District Patna has been acquired by the State of Bihar for the Police Employees Co- operative House Construction Society Ltd., Patna (hereinafter referred to as the Society) for the construction of houses of Police Employees. | https://indiankanoon.org/doc/49275886/ |
8c79d10f2daa-16 | Phuljharia Devi & Anr vs The State Of Bihar & Ors on 18 September, 2009 | (B) AND whereas total land meaning approximately 1.08 Acre i.e. 34.56 Kathas at Mauza Paharpur, Plot Nos. 366, 367, 373, 385, 386, 405, 407, 434, 435 P.S. Gardanibagh, District Patna is involved in this case.
(C) AND whereas the Decree Holder Covenant that the aforesaid land was in his exclusive possession with absolute right, title and interest in the year.
(D) AND whereas the collector under Land Acquisition Act categorized 35.420 acres of land as Class „Ka‟ Block and rest of 11.35 acres of land as class „Kha‟ Block. The compensation for class „Ka‟ land was fixed at the rate of Rs. 66,434/- per acre equivalent to Rs. 2075/- per katha whereas the compensation for class „Kha‟ land was fixed at the rate of Rs. 64,000/- per acres, equivalent to Rs.2000/- per Kathas. (E) AND whereas the Decree Holder applied for Reference under section 18 of the Land Acquisition Act.
(F) AND whereas by the impugned
judgment and awards dated 15.1.1991
the learned special Land Acquisition Judge II, Patna has enhanced the compensation amount to Rs. 6,500/- per Katha. | https://indiankanoon.org/doc/49275886/ |
8c79d10f2daa-17 | Phuljharia Devi & Anr vs The State Of Bihar & Ors on 18 September, 2009 | (G) AND whereas of the State of Bihar has filed F.A.No. 148 of 1985 against the judgment of enhancing the compensation of acquired land. The aforesaid appeal has partly been allowed by the Hon‟ble High Court vide order dated 3.2.1994 by which the Hon‟ble High Court reduced the compensation for the land acquired from 6,500/- per Katha to Rs. 4,400/- .
(H) AND whereas the State of Bihar has filed S.L.P.No. 14886 to 14939 in the Hon‟ble Supreme Court of India against the payment of additional compensation under section 23(IH) of the Land Acquisition Act vide order dated 14.7.1995 and the Hon‟ble Supreme Court has allowed the aforesaid S.L.P.
(I) AND whereas the Police Employees House Construction Society Ltd. was one of the party in the aforesaid First Appeal and S.L.P. | https://indiankanoon.org/doc/49275886/ |
8c79d10f2daa-18 | Phuljharia Devi & Anr vs The State Of Bihar & Ors on 18 September, 2009 | (J) AND whereas the Police Employees House Construction Society Ltd. filed a petition under Order 1 Rule 10 of C.P.C. in L.A.Ex.Case No. 10 of 96 and Hon‟ble L.A. Judge II, Patna has made necessary party on 25.1.2001. NOW THIS WITNESSETH AND IS HEREBY AGREED AND DECLARED BY AND BETWEEN THE PARTIES HERETO AS FOLLOWS:-
1. The Decree Holder and Police Employees House Construction Society Ltd. has compromised the case outside court and the parties have agreed to settle the dispute on payment of Rs.3,57,450.00 through account payee
cheque in the name of the Decree
Holder irrespective of the claim of the Decree Holder. On payment of the said amount the Decree Holder will have no claim with the judgment Debtor No. 1 and 2 (The State of Bihar through Collector Patna and the Police Employees House Construction Society Ltd.
2. That the decree Holder will receive the consideration amount for the aforesaid L.A.Ex.Case No. 10 of 1996, and on such receipt the Decree Holder and his legal heirs shall have no further claims and they shall not further demand any interest in future.
3. The Decree Holder agree and
undertake that he shall file
withdrawal petition in the court of Sub Judge II, Patna after receiving an amount of Rs. 3,57,450.00 from Police Employees House Construction Society Ltd.
4. That the Decree Holder agree and undertake that after receiving the said amount i.e. Rs. 3,57,450.00 shall also have no grievance from the Judgment Debtors. | https://indiankanoon.org/doc/49275886/ |
8c79d10f2daa-19 | Phuljharia Devi & Anr vs The State Of Bihar & Ors on 18 September, 2009 | 5. The Police Employees House Construction Society Ltd. also agree that the matter has already been compromised outside the court and he has agreed to pay through account payee cheque a sum of Rs. 3,57,450.00 to the Decree Holder. SCHEDULE I
DESCRIPTION OF LAND UNDER THIS
AGREEMENT.
Khata No. Plot No. Area
153 367 0.14
200 373 0.10
202 386 0.22
254 405 0.09
407 0.08
200 434 0.10
435 0.05
175 366 0.07
202 385 0.23
1.08
i.e.34.36 Kathas
In witness whereas the parties hereto have set and subscribed their respective hands on the day month and year aforesaid.
Above written in presence of the witness.
Sd/- Illegible Signature of Decree Holder Witnesses Sd/- Illegible Signature of J.D.No.2 Police Employees House Construction Society Ltd.
Through its Secretary." | https://indiankanoon.org/doc/49275886/ |
8c79d10f2daa-20 | Phuljharia Devi & Anr vs The State Of Bihar & Ors on 18 September, 2009 | Through its Secretary."
(underlining for emphasis) This Court has purposely quoted the entire agreement in extenso and underlined relevant portion to emphasis that whatever was stated before the executing court on 20.7.2001 by filing an application on 2.2.2001 was a natural fall out of the aforementioned agreement dated 30.1.2001. In presence of the aforementioned agreement followed by the order of the executing court dated 20.7.2001, it would be thus very difficult for this Court to accept the story of either fraud or misrepresentation which has been made the only basis by the petitioners to file this writ application. To this Court it appears that the petitioners have subsequently become wiser after six years receiving full and final payment only for filing of this writ petition for claiming additional amount which they had voluntarily given up in terms of the compromise petition. It has to be noted that the signature thereon of both the petitioners and the thumb impression with attestation of petitioner no.1 with attestation of petitioner no.2 in presence of two witnesses and the signature and thumb impression on all the pages of the agreement on a stamp paper purchased on 21.12.2000 for the purpose of writing an agreement can hardly even leave a scope for introduction of story of fraud. In that view of the matter, it appears to this Court that the petitioners are shy in approaching or taking resort to the remedy under section 47 C.P.C. which lays down as follows :
"47. Questions to be determined by the court executing decree.- (1) All questions arising between the parties to the suit in which the decree was passed, or there, representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the court executing the decree and not by a separate suit."
Thus if in terms of Section 47 C.P.C. | https://indiankanoon.org/doc/49275886/ |
8c79d10f2daa-21 | Phuljharia Devi & Anr vs The State Of Bihar & Ors on 18 September, 2009 | the petitioners had any grievance even after alleged discovery of fraud on account of the proceedings of general body of committee dated 25.2.2001 (Annexure 1 to the writ application), they had to approach the said executing court which had passed the order on 20.7.2001 dismissing the execution case on recording the satisfaction of the decree. This Court must hasten to add that even the proceedings of the general body does not improve the case of the petitioners as even there the issue of compromise with the landholders including the petitioners has been clearly mentioned as would appear from the following relevant text thereof: | https://indiankanoon.org/doc/49275886/ |
8c79d10f2daa-22 | Phuljharia Devi & Anr vs The State Of Bihar & Ors on 18 September, 2009 | ^^ Hkw&vtZu lEcaf/kr 53 eqdnes loksZPp U;k;ky; ls fu'ikfnr gks pqds gSa vkSj mlesa vf/kdka"k esa lc&tt ¼2½]iVuk ds U;k;ky; esa fMdzh dh jkf"k dh olwyh ds fy;s Hkw&Lokfe;ksa }kjk btjk;okn nkf[ky fd;s x;s gSa A iwoZ dh dk;Zdkfj.kh lfefr;ksa us bl Js.kh ds 22 eqdneksa esa t;?kks'k dh jkf"k vius Lrj ls fglkc dj Hkw&vtZu dk;kZy; esa tek dj nh gS A buesa 19 eqdneksa esa t;?kks'k jkf"k dk Hkqxrku fMdzh /kkfj;ksa dks ugha gqvk gS vkSj 3 eqdneksa esa xyr O;fDr;ksa }kjk t;?kks'k dh jkf"k U;k;ky; ls fudky fy;k x;k gS A blds fo:) vlyh fMdzh /kkfj;ksa us flfoy fjfHktu nk;j fd;k gS A orZeku lfefr us fuEufyf[kr btjk;okn esa fnukad 03-4- 95 rd loksZPp U;k;ky; }kjk fu/kkZfjr lwn dh jkf"k tksM+ dj fMdzh /kkfj;ksa ls le>kSrk fd;k gS vkSj | https://indiankanoon.org/doc/49275886/ |
8c79d10f2daa-23 | Phuljharia Devi & Anr vs The State Of Bihar & Ors on 18 September, 2009 | /kkfj;ksa ls le>kSrk fd;k gS vkSj t;?kks'k dh jkf"k dk Hkqxrku ys[kkns; | https://indiankanoon.org/doc/49275886/ |
8c79d10f2daa-24 | Phuljharia Devi & Anr vs The State Of Bihar & Ors on 18 September, 2009 | psdksa }kjk fd;k gS A bl lEcU/k esa fMdzh /kkfj;ksa ls ,djkjukek gqvk vkSj mlds ckn psd izkIr dj muyksxksa us lc tt ¼2½ iVuk ds U;k;ky; esa btjk;okn okilh ds fy;s vkosnu ns fn;k gS A ;s vkosnu U;k;ky; dh Lohd`fr gsrq yfEcr gS A btjk;okn la0 ,okMhZ dk uke lqygukesa dh jkf"k 1- [email protected] Jh yfyr jk; la0 58]360-00 2- [email protected] Jherh Qqy>fj;k nsoh la0 3]57]450-00 3- [email protected] Jh pfUnzdk jk; la0 58]360-00 blds vfrfjDr 28 eqdnes ,sls gSa ftuesa lc&tt ¼4½ iVuk ds U;k;ky; ls HkwLokfe;ksa ds i{k esa fMdzh gks x;h gS A muesa ljdkj dh vksj ls mPp U;k;ky; esa vihy nk;j dh x;h gS A bl Js.kh ds 11 eqdneksa esa fnukad 16-12-2000 dh dk;Zdkfj.kh dh cSBd esa lfpo dks Hkw&vtZu okn lEcU/kh btjk; ds lqygukes ds fy;s fn"kk&funsZ"k fn;s x;s Fks A mu funsZ"kksa ds | https://indiankanoon.org/doc/49275886/ |
8c79d10f2daa-25 | Phuljharia Devi & Anr vs The State Of Bihar & Ors on 18 September, 2009 | fn;s x;s Fks A mu funsZ"kksa ds vkyksd esa lfpo us lkr fMdzhnkjksa ls lqygukesa dh ckrphr dh vkSj bldh lwpuk dk;Zdkfj.kh dks fnukad 27-01-2001 dks nh rFkk dk;Zdkfj.kh us fnukad 28-01-2001 dh cSBd esa lqyg djus dk fu.kZ; fy;k A ijUrq tc fnukad 31-01-2001 dks fMdzh/kkjh lqygukesa ds fy;s vk;s rks muds le{k ;g "krZ j[kh xbZ fd lqygukes dh jkf"k dk psd mUgsa ckn dh frFkh esa fn;k tk;xk A bl ij rhu mijksDr fMdzh/kkjh ckn dh rkjh[k dk psd ysus ds fy, lger gks x, vkSj muls lqygukek dj fy;k x;k ijUrq rhu fMdzh/kkjh dk dguk Fkk fd og okn okilh lEcU/kh ;kfpdk nk;j djrs le; gh mlh rkfj[k dk psd ysaxs A v/;{k }kjk lger ugha gksus ij muls lqygukesa dk djkj VwV x;k A ,d fMdzh/kkjh dh vksj ls dgk x;k fd psd cukdj lfefr ds vf/koDrk ds ikl j[k fn;k tk; vkSj tc eqdnek okilh dk U;k;ky; dk vkns"k gks tk; rks mUgsa psd | https://indiankanoon.org/doc/49275886/ |
8c79d10f2daa-26 | Phuljharia Devi & Anr vs The State Of Bihar & Ors on 18 September, 2009 | dk vkns"k gks tk; rks mUgsa psd fn;k tk; A v/;{k us bl vuqjks/k dks ;g dgrs gq;s vLohdkj dj fn;k fd ml ds"k ls lEcfU/kr lnL;ksa esa dqN ds ikl vfHkof)Zr jkf"k cdk;k gS ,slh gkyr esa psd fuxZr ugha fd;k tk ldrk A bl izdkj lfefr yxHkx 2]00]000]00 :Ik;s ds ykHk ls oafpr gks xbZ vkSj Hkfo'; esa lqygukesa dk ekxZ Hkh can gks x;k A ** From the reading of the aforementioned proceedings of the Committee, which was in form a report to the general body, it would appear that not only in the case of the petitioners but in the case of all other land holders similar agreement seeking to compromise on the issue of the payment of amount of compensation was arrived at between the society and the concerned land holders and therefore, it would be difficult for this Court to accept the story of fraud played by the society only against the petitioners. In the circumstances, the very plea of the petitioners for reopening the whole issue of payment of further compensation having been found to be wholly false and frivolous the prayer in writ application is even otherwise fit to be rejected. | https://indiankanoon.org/doc/49275886/ |
8c79d10f2daa-27 | Phuljharia Devi & Anr vs The State Of Bihar & Ors on 18 September, 2009 | While doing so this Court must also accept the submission of the learned counsel for the respondents who has rightly placed his reliance on two Division Bench judgments of this Court that the writ Court cannot convert itself into a civil court for entertaining purely civil matter and that forum of civil court once elected cannot be abandoned in midstream for availing the remedy under Article 226 of the Constitution.
This Court in fact after discussing a large number of judgment of the Apex Court as also this Court in the case of Sachidanand Roy (supra) had held as follows:
"Therefore, in the opinion of this Court, under the principle of doctrine of election, once a forum is elected by a litigant, without getting that remedy exhausted or withdrawn on a reasonable ground, he cannot switch on at his own sweet- will or whims during the pendency of that proceeding to any other forum particularly remedy under Article 226 of the Constitution cannot be resorted to".
In fact this Court also in the case of Abijit Ganguly (supra) has also clearly held that the writ Court cannot be converted into a civil court for entertaining purely civil matter and in fact filing of a writ petition where a remedy under the C.P.C. before the civil court is available would amount to abuse of the process of Court. As a matter of fact this Court in Abijit Ganguly‟s case (supra) has also put a note of caution on the duty of the lawyers which is cast upon them in advising their clients in right prospective. This Court can do no better but to quote on the following apt passages of the judgment on the issue in the case of Abijit Ganguly (supra): | https://indiankanoon.org/doc/49275886/ |
8c79d10f2daa-28 | Phuljharia Devi & Anr vs The State Of Bihar & Ors on 18 September, 2009 | "4. In our considered opinion, the appellant has abused the process of the law. This Court cannot be converted into a civil court for entertaining such matters. The Apex Court in a decision in the case of Durga Prasad vs. Naveen Chandra and others, reported in JT 1996(3) S.C. 564, has held that the procedures prescribed under the Code of Civil Procedure cannot be bypassed and that in such matter writ petition is not maintainable.
5. In the case of Dr. Buddhi Kota
Subbarao vs. Mr.K. Parasaran and
others, reported in JT 1996(7) S.C. 265, the Apex Court has observed that no litigant has a right to unlimited drought on the Court time and public money by filing false and frivolous petitions invoking the extraordinary jurisdiction of the Court under Article 226 of the Constitution, which is a discretionary one in order to get his affairs settled in the manner as he wishes. Easy access to justice should not be misused as a licence to file misconceived or frivolous petitions.
6. In the instant case admittedly after the judgment and decree dated 9.12.1996 passed by the lower court, the appellant could have vindicated his grievance by taking the recourse to the provisions of Section 96 of the Code of Civil Procedure by filing an appeal; but instead of that, he has filed writ petition. | https://indiankanoon.org/doc/49275886/ |
8c79d10f2daa-29 | Phuljharia Devi & Anr vs The State Of Bihar & Ors on 18 September, 2009 | 7. In this regard we may also observe that an onerous duty is cast upon the counsel in such matters to advise their clients in the right perspective. In this regard we are reminded of the observations made by the Apex Court in the case of "In Re Sanjiv Datta, Deputy Secretary Ministry of Information and Boardcasting" reported in 1995(3) SCC 619, that legal profession is a solemn and serious occupation. It is a noble calling and all those who belong to it are its honourable members. The legal profession is different from other professions in that what the lawyers do, affects not only an individual but the administration of justice which is the foundation of the civilized society. Both as a leading member of the intelligentsia of the society and as a responsible citizen, the lawyer has to conduct himself as a model for others both in his profession and in his private and public life. The Apex Court has also observed that "Of late, we have been coming across several instances which can only be described as unfortunate both for legal profession and the administration of justice. It becomes, therefore, our duty to bring into the notice of the members of the profession that it is in their hands to improve the quality of the service they render both the litigant public and to the courts, and to brighten their image in the society". It has further been held by the Apex Court that "the society has a right to expect of him such ideal behaviour. It must not be forgotten that the legal profession has always been held in high esteem and its members have played an enviable role in public life. The regard for the legal and judicial systems in this country is in no small measure due to the tireless role played by the stalwarts in the profession to strengthen them. If the profession is to survive, the judicial system has to be vitalized." | https://indiankanoon.org/doc/49275886/ |
8c79d10f2daa-30 | Phuljharia Devi & Anr vs The State Of Bihar & Ors on 18 September, 2009 | 8. Therefore, frivolous and misconceived petitions should not be filed invoking extraordinary jurisdiction of writ Court."
(Underlining for emphasis) At this stage this Court also must take into account somewhat a plea in desperation raised by the learned counsel for the petitioner while equating the right to receive payment of compensation under the Act to be fundamental right and thus, the maintainability of the writ petition on the ground that there would be no waiver for the fundamental right. This Court would find that the payment of amount of compensation under the Act is a statutory right under the Act and not a fundamental right in true sense of term because after deleting the provisions of Article 31, the legislature has made provision under Article 300A of the Constitution which itself lays down that no person shall be deprived of his property save by the authority of law.
It has to be noted that this was
inserted by the Constitution (Forty-fourth | https://indiankanoon.org/doc/49275886/ |
8c79d10f2daa-31 | Phuljharia Devi & Anr vs The State Of Bihar & Ors on 18 September, 2009 | inserted by the Constitution (Forty-fourth
Amendment) Act, 1978 with effect from 20.6.1979 whereas the award of the petitioners became final that the order of the Apex Court in the year 1995 and the order of the executing court in the year 2001. In that view of the matter, the provisions of the Land Acquisition Act itself were sufficient to deny the alleged right to property of the petitioners and as such, the reliance placed on the judgment of the Apex Court in the case of Olga Tellis (supra) or in the case of M.P.State Agro Industries Development Corporation (supra) is wholly misplaced. It has to be noted that while Olga Tellis‟s case was relating to under Articles 14 and 19 of the Constitution pertaining to rights of equality to others who were sought to be evicted by Mumbai Municipal Corporation and in the case of M.P.State Agro (supra) the issue involved was pertaining to Article 16 where the service of a permanent employee of the Corporation was dispensed with without following the principles of natural justice. This Court in fact would also find no applicability of the judgment in the case of Kamleshwar Prasad (supra), inasmuch as in paragraph no.3 the Apex Court had made it clear that it was under special facts and circumstances of the case that the Apex Court had not interfered under Article 136 against an order of Allahabad High Court entertaining a writ petition in a decree of eviction. Such judgment/order of the Apex Court in the opinion of this Court being totally one under Article 142 of the Constitution rendered in the peculiar facts of a particular case and for doing complete justice between the parties are not law laid down in terms of Article 141 of the Constitution of India and cannot be used as a binding precedent. | https://indiankanoon.org/doc/49275886/ |
8c79d10f2daa-32 | Phuljharia Devi & Anr vs The State Of Bihar & Ors on 18 September, 2009 | The reliance placed by the learned counsel for the petitioner on a Full Bench judgment of Andhra Pradesh High Court in the case of Bhimidipati Annapoorna (supra) is also somewhat misplaced inasmuch as in that case it was found that where the amount of compensation, finally determined had not been paid, a person must first resort to the alternative efficacious remedy of taking out execution and when despite taking out execution proceedings, if there is any delay caused on the part of authorities, resort can be had to filing of a writ petition. This Court, therefore, must hold that Andhra Pradesh High Court had only reiterated the settled principle of law that the existence of an alternative remedy by itself would not be a bar for maintaining a writ petition and in fact when the land holders were already finding themselves to have been frustrated in their legitimate expectation to have received their amount of compensation even after levying of the execution case, due to frivolous objection of the State, the writ Court under Article 226 of the Constitution could definitely come to the rescue of such land holders. No such case however has been made out by the petitioner before this Court inasmuch as the execution proceedings levied by them have been finally disposed of and in view of their prayer before the executing court as noted in the order dated 20.7.2001. The petitioners now allege fraud on the part of the society and are thereby indirectly questioning the order passed in the execution proceeding. For doing so the petitioners definitely have a remedy under section 47 of the Code of Civil Procedure and that is how this Court would find that the ratio of the Full Bench Judgment of Andhra Pradesh High Court in the case of Bhimidipati Annapoorna (Supra) would not be applicable in the facts of this case. | https://indiankanoon.org/doc/49275886/ |
8c79d10f2daa-33 | Phuljharia Devi & Anr vs The State Of Bihar & Ors on 18 September, 2009 | This Court in fact is fully satisfied that if in the long drawn proceedings of determination of compensation of more than 26 years the petitioners had accepted the amount of compensation by reaching to a compromise outside the court by sacrificing certain amount of interest only for being paid the balance amount of Rs.3,57,450/-, their claim for payment of remaining amount of interest of Rs. 87,711.16 paise on the ground of alleged fraud and/or misrepresentation of respondent no.3 the Society is wholly untenable either on fact or in law. It is always open for a decree holder to reach to a compromise during the pendency of the execution proceedings and the petitioners having made such a compromise with their open eyes cannot now resile from that situation and at least cannot take recourse to the filing of a writ petition alleging fraud on the part of the Society.
That being so, this Court must hold that the writ application filed by the petitioners is wholly misconceived and the same must be and is hereby dismissed.
Though this Court was initially tempted to award an exemplary cost against the petitioners for filing this frivolous writ petition but then taking into account the social status of the petitioners and their ignorance of law as also some misconceived advice given to them for filing this writ petition, this Court would make no order as to costs.
(Mihir Kumar Jha,J.) Patna High Court Dated the 18th September, 2009 Surendra/ | https://indiankanoon.org/doc/49275886/ |
9ec57d95b2f8-0 | Md. Anzar vs Md. Manzar Ali @ Kali on 9 May, 2016 | Patna High Court CWJC No.8216 of 2013 (04) dt.09-05-2016 1
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.8216 of 2013
======================================================
1. MD. ANZAR S/OLATE WALI MOHAMMAD R/O VILLAGE- RATANPURA, P.S.
MORO, DISTRICT- DARBHANGA THROUGH MD. QAMRUZZAMA, S/O LATE
WALI MOHAMMAD, R/O VILLAGE- RATANPURA, P.S. MORO, DISTRICT-
DARBHANGA HOLDING POWER OF ATTORNEY
.... .... PETITIONER/S
VERSUS
1. MD. MANZAR ALI @ KALI S/O LATE ZAINUL ABEDIN R/O VILLAGE-
RATANPURA, P.S. MORO, DISTRICT- DARBHANGA, THROUGH MD. MAZHAR
ALI @ GORE, S/O LATE ZAINUL ABEDIN, R/O VILLAGE- RATANPURA, P.S.-
MORO, DISTRICT- DARBHANGA HOLDING POWER OF ATTORNEY | https://indiankanoon.org/doc/121562430/ |
9ec57d95b2f8-1 | Md. Anzar vs Md. Manzar Ali @ Kali on 9 May, 2016 | .... .... RESPONDENT/S
======================================================
Appearance :
For the Petitioner/s : Mr. Sukumar Sinha-Sr. Advocate
Mr. Abinash Kumar-Advocate
For the Respondent/s : Mr. Najmul Hoda-Advocate
Mr. Md. Ataul Haque-Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
ORAL ORDER04 09-05-2016 Heard learned counsel for the petitioner as well as learned counsel for the respondent.
2. Petitioner is the defendant. A suit for Specific Performance of Contract Act has been filed at the end of the respondent/ plaintiff wherein after appearance of defendant/ petitioner, a petition has been filed on his behalf before the learned lower Court in terms of Order-VII, Rule-11 of the C.P.C. asking for rejection of the plaint in the background of presence of Section 17(1-A) of the Registration Act stating that the document purported to be in support of activities governed under Section 53(A) of the T. P. Act, requires registration. As the present suit has been filed on the basis of alleged unregistered deed of <span class="hidden_text" id="span_1"> Patna High Court CWJC No.8216 of 2013 (04) dt.09-05-2016 2</span> agreement, hence no suit under banner of Section 53(A) of the T. P. Act (Part Performance) is permissible, whereupon plaint is fit to be rejected.
3. The learned lower Court after hearing both the parties has rejected the prayer by the order impugned. Hence this petition. | https://indiankanoon.org/doc/121562430/ |
9ec57d95b2f8-2 | Md. Anzar vs Md. Manzar Ali @ Kali on 9 May, 2016 | 4. In order to substantiate his plea, the learned counsel for the petitioner has submitted that after amendment of the Section 17 of the Registration Act, Section 17 (1-A) has been introduced in order to put safeguard upon the interest of the proposed transferor from being duped, impersonated, cheated, deceived and further, for that purpose registration of the document has been made compulsorily. Once, there happens to be intention of the legislature to have the act performed in particular way in order to justify or accrual of a particular right, then in that event, that act is to be exercised in same manner to achieve such right and so, the document unless and until being registered one, would not give any substantive or legal right to the plaintiff to draw a suit for Specific Performance of Contract. Further, in order to substantiate such plea, relied upon Ashok Goenka vs. Chandra Bhushan Singh and Others reported in 2010(1) P.L.J.R. 317 as well as Gurbachan Singh v. Raghubir Singh reported in A.I.R. <span class="hidden_text" id="span_2"> Patna High Court CWJC No.8216 of 2013 (04) dt.09-05-2016 3</span> 2010 Punjab and Haryana 77. So, submitted that the order impugned passed by the learned lower Court happens to be bad and is accordingly, fit to be set aside.
5. Per contra, it has been submitted on behalf of learned counsel for the respondent that in terms of Section 53(A) of the T. P. Act, the transferor is found duly forbidden to raise such plea and on account thereof, he is precluded in getting any sort of relief in terms of Section 17(1-A) of the Registration Act. | https://indiankanoon.org/doc/121562430/ |
9ec57d95b2f8-3 | Md. Anzar vs Md. Manzar Ali @ Kali on 9 May, 2016 | 6. Before adjudicating upon the order impugned, certain factual events is to be taken note of. There happens to be no controversy with regard to the admitted status of the land under dispute to be mortgaged property and for that, plaintiff happens to be the mortgagee while the petitioner/ defendant happens to be the mortgagor. The land was given in possession of respondent/ plaintiff and so, basically it happens to be an usufructuary mortgage. As the petitioner/ defendant was unable to pay the mortgaged amount on account thereof, both the parties entered into negotiation, which was finalized on a particular consideration amount and in token thereof, deed of agreement was prepared and as, the petitioner/ defendant failed to execute the sale deed within the stipulated period, attracted institution of the instant suit under the banner of Specific Relief Act.
7. In the aforesaid factual aspect, now the relevant law having applicability over the aforesaid dispute is to be taken note of. | https://indiankanoon.org/doc/121562430/ |
9ec57d95b2f8-4 | Md. Anzar vs Md. Manzar Ali @ Kali on 9 May, 2016 | 8. The first one happens to be the T. P. Act relating to transfer of the immovable property. Section 5 of the T.P. Act defines the transfer of property:-
5. ―Transfer of property‖ defined.- In the following sections ―transfer of property‖ means an act by which a living person conveys property, in present or in future, to one or more other living persons, [Inserted by Act 20 of 1929, S.6] and one or more other living persons; and ―to transfer property‖ is to perform such act.
Inserted by Act 20 of 1929, S.6 [In this section ―living person‖ includes a company or association or body of individuals, whether incorporated or not, but nothing herein contained shall affect any law for the time being in force relating to transfer of property to or by companies, associations or bodies of individuals.] | https://indiankanoon.org/doc/121562430/ |
9ec57d95b2f8-5 | Md. Anzar vs Md. Manzar Ali @ Kali on 9 May, 2016 | 9. The second important Section is Section 53(A) of the T.P. Act:-
―Inserted by Act 20 of 1929, S.16 [ 53A. Part <span class="hidden_text" id="span_4"> Patna High Court CWJC No.8216 of 2013 (04) dt.09-05-2016 5</span> performance-53A. Part performance Where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that the contract, though required to be registered, has not been registered, or, where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract:
Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof.‖ | https://indiankanoon.org/doc/121562430/ |
9ec57d95b2f8-6 | Md. Anzar vs Md. Manzar Ali @ Kali on 9 May, 2016 | 10. And the third one is the sale in terms of Section 54 of the T. P. Act:-
"54. "Sale" defined "Sale" is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised. Sale how made: Such transfer, in the case of tangible immovable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, <span class="hidden_text" id="span_5"> Patna High Court CWJC No.8216 of 2013 (04) dt.09-05-2016 6</span> can be made only by a registered instrument. In the case of tangible immovable property of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property. Delivery of tangible immovable property takes place when the seller places the buyer, or such person as he directs, in possession of the property.
Contract for sale: A contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties.
It does not, of itself, create any interest in or charge on such property.‖
11. Now, comes to the another event and that happens to be Section 17 of the Registration Act whereunder document so enlisted therein have been identified to be properly registered for the purpose of its due acknowledgement. For better appreciation Section 17 is quoted below:- | https://indiankanoon.org/doc/121562430/ |
9ec57d95b2f8-7 | Md. Anzar vs Md. Manzar Ali @ Kali on 9 May, 2016 | "17. Documents of which registration is compulsory:-
(1) The following documents shall be registered. if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act No. XVI of 1864, or the Indian Registration Act, 1866 (XX of 1866) or the Registration Act, 1871 (VIII of 1871) or the Indian Registration Act, 1877 (III of 1877) or this Act came or comes into force, namely:-
(a) instruments of gift of immoveable property;
(b) other non-testamentary instruments which purport or operate, create, declare, assign, limit or extinguish, whether in present or in future any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property;
(c) non-testamentary instruments which <span class="hidden_text" id="span_6"> Patna High Court CWJC No.8216 of 2013 (04) dt.09-05-2016 7</span> acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest; and
(d) leases of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent; The Registration Act 1908 6 | https://indiankanoon.org/doc/121562430/ |
9ec57d95b2f8-8 | Md. Anzar vs Md. Manzar Ali @ Kali on 9 May, 2016 | (e) non -testamentary instruments transferring or assigning any decree or order of a Court or any award when such decree or order or award purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property:
Provided that the State Government may, by order published in the Official Gazette, exempt from the operation of this sub - section any lease executed in any district, or part of a district, the terms granted by which do not exceed five years and the annual rent reserved by which do not exceed fifty rupees. | https://indiankanoon.org/doc/121562430/ |
9ec57d95b2f8-9 | Md. Anzar vs Md. Manzar Ali @ Kali on 9 May, 2016 | (f) agreement relating to the Deposit of title deeds, where such deposit has been made by way of security for the repayment of a loan or an existing or future debts ;
(g)sale certificate issued by any competent officer or authority under any recovery Act ;
(h) irrevocable Power of Attorney relating to transfer of immovable property in any way, executed on or after the commencement of the Registration (Maharashtra Amendment) Act, 2010.
(I-A) The documents containing contracts to transfer for consideration, any immovable property for the purpose of section 53A of the Transfer of property Act, 1882 shall be registered if they have been executed on or after the commencement of the Registration and other related laws (Amendment) Act, 2001 and is such documents are not registered on or after such commencement, then, they shall have no effect for the purposes of the said section 53A. | https://indiankanoon.org/doc/121562430/ |
9ec57d95b2f8-10 | Md. Anzar vs Md. Manzar Ali @ Kali on 9 May, 2016 | (2) Nothing in clauses (b) and (c) of sub - section (1) applies to - :
(i) any composition - deed; or
(ii) any instrument relating to shares in a Joint Stock Company, not withstanding that the <span class="hidden_text" id="span_7"> Patna High Court CWJC No.8216 of 2013 (04) dt.09-05-2016 8</span> assets of such Company consists in whole or in part of immovable property; or
(iii) any debenture issued by any such Company, and not creating, declaring, assigning, limiting or extinguishing any right, title or interest, to or in immovable property except in so far as it entitles the holder of the security afforded by a registered instrument whereby the Company has mortgaged, conveyed or otherwise transferred the whole or part of its immovable property, or any interest therein to trustees upon trust for the benefit of the holders of such debentures; or
(iv) any endorsement upon or transfer of any debenture issued by any such Company; or
(v) any document ―any document other than the documents specified in sub-section (1- A)‖not itself creating, declaring, assigning, limiting or extinguishing any right, title or interest of the value of one hundred rupees and upwards, to or in immovable property, but merely creating a right to obtain another document which will, when executed, create, declare, assign, limit or extinguish any such right, title or interest; or
(vi) any decree or order of a Court except a decree or order expressed to be made on a compromise and comprising immovable property other than that which is the subject- matter of the suit or proceeding ; or
(vii) any grant of immovable property by the State Government ;or | https://indiankanoon.org/doc/121562430/ |
9ec57d95b2f8-11 | Md. Anzar vs Md. Manzar Ali @ Kali on 9 May, 2016 | (vii) any grant of immovable property by the State Government ;or
(viii) any instrument of partition made by a Revenue - officer; or
(ix) any order granting a loan or Instrument of collateral security granted under the Land Improvement Act, 1871, (XXV of 1871) or the Land Improvement Loans Act, 1883 (XIX of 1883); or The Registration Act 1908 7
(x) any order granting a loan under the Agriculturists Loan Act, 1884 (XII of 1884) or under the Bombay Non -Agriculturists Loans Act 1928, or instrument for securing the repayment of a loan made under either of those Acts; or (x-a) any order made under the Charitable Endowments Act, 1890 (VI of 1890), vesting any property in a Treasurer of Charitable Endowments or divesting such Treasurer of any property; or* The state amendment w.e.f. 1/4/2013. | https://indiankanoon.org/doc/121562430/ |
9ec57d95b2f8-12 | Md. Anzar vs Md. Manzar Ali @ Kali on 9 May, 2016 | (xi) any endorsement on a mortgage - deed <span class="hidden_text" id="span_8"> Patna High Court CWJC No.8216 of 2013 (04) dt.09-05-2016 9</span> acknowledging the payment of the whole or any part of the mortgage - money, and any other receipt for payment of money due under a mortgage when the receipt does not purport to extinguish the mortgage; or
(xii) any certificate of sale granted to the purchaser of any property sold by public auction by a Civil or Revenue officer. [Explanation:- A document purporting or operating to effect a contract for the sale of immovable property shall not be deemed to require or ever to have required registration by reason only of the fact that such document contains a recital of the payment of any earnest
- money or of the whole or any part of the purchase money.] (3) Authorities to adopt a son, executed after the first day of January 1872 and not conferred by a will shall be registered.
12. Section 49 of the Registration Act, which has got pivotal role in deciding the issue is also to be taken note of and is quoted below:-
―49. Effect of non-registration of documents required to be registered.--No document required by section 17 Added by Act 21 of 1929, S. 10. [or by any provision of the Transfer of Property Act, 1882 (4 of 1882)], to be registered shall--
(a) affect any immovable property comprised therein, or
(b) confer any power to adopt, or
(c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered: | https://indiankanoon.org/doc/121562430/ |
9ec57d95b2f8-13 | Md. Anzar vs Md. Manzar Ali @ Kali on 9 May, 2016 | Added by Act 21 of 1929, S. 10. [Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882 (4 of 1882), to be registered may be received as evidence of a contract in a suit for specific performance <span class="hidden_text" id="span_9"> Patna High Court CWJC No.8216 of 2013 (04) dt.09-05-2016 10</span> under Chapter II of the Specific Relief Act, 1877 (3 of 1877) Now see the Specific Relief Act, 1963, The words ―or as evidence of part performance of a contract for the purposes of section 53-A of the Transfer of Property Act, 1882‖ omitted by Act 48 of 2001, S. 6 (w.e.f. 24.09.2001).[***] or as evidence of any collateral transaction not required to be effected by registered instrument.] State Amendment Uttar Pradesh: In section 49,--
(i) in the first paragraph, after the words ―or by any provision of the Transfer of Property Act, 1882‖ insert the words ―or of any other law for the time being in force‖,
(ii) substitute clause (b) as under: ―(b) confer any power or create any right or relationship, or‖,
(iii) in clause (c), after the words ―such power‖, insert the words ―or creating such right or relationship‖, | https://indiankanoon.org/doc/121562430/ |
9ec57d95b2f8-14 | Md. Anzar vs Md. Manzar Ali @ Kali on 9 May, 2016 | (iv) in the proviso, omit the words ―as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877, or‖. [Vide Uttar Pradesh Act 57 of 1976, sec. 34 (w.e.f. 1-1-1977)].‖ | https://indiankanoon.org/doc/121562430/ |
9ec57d95b2f8-15 | Md. Anzar vs Md. Manzar Ali @ Kali on 9 May, 2016 | 13. At the present moment, another act, Specific Relief Act 1963 is also to be looked into. As per Section 10 of the Specific Relief Act, the following criteria have been perceived wherein Specific Performance of Contract is found enforceable for better appreciation, the same is quoted below:- | https://indiankanoon.org/doc/121562430/ |
9ec57d95b2f8-16 | Md. Anzar vs Md. Manzar Ali @ Kali on 9 May, 2016 | ‖10. Cases in which specific performance of contract enforceable.--Except as otherwise provided in this Chapter, the specific performance of any contract may, in the discretion of the court, be enforced--
(a) when there exists no standard for ascertaining actual damage caused by the non- performance of the act agreed to be done; or
(b) when the act agreed to be done is such that compensation in money for its non- performance would not afford adequate relief. Explanation.--Unless and until the contrary is proved, the court shall presume--
(i) that the breach of a contract to transfer immovable property cannot be adequately relieved by compensation in money; and
(ii) that the breach of a contract to transfer movable property can be so relieved except in the following cases:--
(a) where the property is not an ordinary article of commerce, or is of special value or interest to the plaintiff, or consists of goods which are not easily obtainable in the market;
(b) where the property is held by the defendant as the agent or trustee of the plaintiff.‖ ***************************** ―12. Specific performance of part of contract.--
(1) Except as otherwise hereinafter provided in this section the court shall not direct the specific performance of a part of a contract. (2) Where a party to a contract is unable to perform the whole of his part of it, but the part which must be left unperformed by only a small proportion to the whole in value and admits of compensation in money, the court may, at the suit of either party, direct the specific performance of so much of the contract as can be performed, and award compensation in money for the deficiency. | https://indiankanoon.org/doc/121562430/ |
9ec57d95b2f8-17 | Md. Anzar vs Md. Manzar Ali @ Kali on 9 May, 2016 | (3) Where a party to a contract is unable to perform the whole of his part of it, and the part which must be left unperformed either--
(a) forms a considerable part of the whole, <span class="hidden_text" id="span_11"> Patna High Court CWJC No.8216 of 2013 (04) dt.09-05-2016 12</span> though admitting of compensation in money; or
(b) does not admit of compensation in money, he is not entitled to obtain a decree for specific performance; but the court may, at the suit of other party, direct the party in default to perform specifically so much of his part of the contract as he can perform, if the other party--
(i) in a case falling under clause (a), pays or has paid the agreed consideration for the whole of the contract reduced by the consideration for the part which must be left unperformed and a case falling under clause
(b), 1[pays or had paid] the consideration for the whole of the contract without any abatement; and
(ii) in either case, relinquishes all claims to the performance of the remaining part of the contract and all right to compensation, either for the deficiency or for the loss or damage sustained by him through the default of the defendant. | https://indiankanoon.org/doc/121562430/ |
9ec57d95b2f8-18 | Md. Anzar vs Md. Manzar Ali @ Kali on 9 May, 2016 | (4) When a part of a contract which, taken by itself, can and ought to be specifically performed, stands on a separate and independent footing from another part of the same contract which cannot or ought not to be specifically performed, the court may direct specific performance of the former part.
Explanation.--For the purposes of this section, a party to a contract shall be deemed to be unable to perform the whole of his part of it if a portion of its subject matter existing at the date of the contract has ceased to exist at the time of its performance.‖
14. The status of the plaintiff is found duly acknowledgeable under Section 15 of the Act. Sections 20, 21 and 22 are the relevant provisions guiding the power of the Court and <span class="hidden_text" id="span_12"> Patna High Court CWJC No.8216 of 2013 (04) dt.09-05-2016 13</span> for better appreciation those Sections are quoted below:- | https://indiankanoon.org/doc/121562430/ |
9ec57d95b2f8-19 | Md. Anzar vs Md. Manzar Ali @ Kali on 9 May, 2016 | ―20. Discretion as to decreeing specific performance.--
(1) The jurisdiction to decree specific performance is discretionary, and the court is not bound to grant such relief merely because it is lawful to do so; but the discretion of the court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a court of appeal. (2) The following are cases in which the court may properly exercise discretion not to decree specific performance:--
(a) where the terms of the contract or the conduct of the parties at the time of entering into the contract or the other circumstances under which the contract was entered into are such that the contract, though not voidable, gives the plaintiff an unfair advantage over the defendant; or
(b) where the performance of the contract would involve some hardship on the defendant which he did not foresee, whereas its non- performance would involve no such hardship on the plaintiff; or | https://indiankanoon.org/doc/121562430/ |
9ec57d95b2f8-20 | Md. Anzar vs Md. Manzar Ali @ Kali on 9 May, 2016 | (c) where the defendant entered into the contract under circumstances which though not rendering the contract voidable, makes it inequitable to enforce specific performance. Explanation 1.--Mere inadequacy of consideration, or the mere fact that the contract is onerous to the defendant or improvident in its nature, shall not be deemed to constitute an unfair advantage within the meaning of clause (a) or hardship within the meaning of clause (b). Explanation 2.-- The question whether the performance of a contract would involve hardship on the defendant within the meaning of clause (b) shall, except in cases <span class="hidden_text" id="span_13"> Patna High Court CWJC No.8216 of 2013 (04) dt.09-05-2016 14</span> where the hardship has resulted from any act of the plaintiff subsequent to the contract, be determined with reference to the circumstances existing at the time of the contract. (3) The court may properly exercise discretion to decree specific performance in any case where the plaintiff has done substantial acts or suffered losses in consequence of a contract capable of specific performance. | https://indiankanoon.org/doc/121562430/ |
9ec57d95b2f8-21 | Md. Anzar vs Md. Manzar Ali @ Kali on 9 May, 2016 | (4) The court shall not refuse to any party specific performance of a contract merely on the ground that the contract is not enforceable at the instance of the party.
21. Power to award compensation in certain cases.--
(1) In a suit for specific performance of a contract, the plaintiff may also claim compensation for its breach, either in addition to, or in substitution of, such performance. (2) If, in any such suit, the court decides that specific performance ought not to be granted, but that there is a contract between the parties which has been broken by the defendant, and that the plaintiff is entitled to compensation for that breach, it shall award him such compensation accordingly.
(3) If, in any such suit, the court decides that specific performance ought to be granted, but that it is not sufficient to satisfy the justice of the case, and that some compensation for breach of the contract should also be made to the plaintiff, it shall award him such compensation accordingly.
(4) In determining the amount of any compensation awarded under this section, the court shall be guided by the principles specified in section 73 of the Indian Contract <span class="hidden_text" id="span_14"> Patna High Court CWJC No.8216 of 2013 (04) dt.09-05-2016 15</span> Act, 1872 (9 of 1872).
(5) No compensation shall be awarded under this section unless the plaintiff has claimed such compensation in his plaint: Provided that where the plaintiff has not claimed any such compensation in the plaint, the court shall, at any stage of the proceeding, allow him to amend the plaint on such terms as may be just, for including a claim for such compensation. Explanation.--The circumstance that the contract has become incapable of specific performance does not preclude the court from exercising the jurisdiction conferred by this section. | https://indiankanoon.org/doc/121562430/ |
9ec57d95b2f8-22 | Md. Anzar vs Md. Manzar Ali @ Kali on 9 May, 2016 | 22. Power to grant relief for possession, partition, refund of earnest money, etc.-- (1) Notwithstanding anything to the contrary contained in the Code of Civil Procedure, 1908 (5 of 1908), any person suing for the specific performance of a contract for the transfer of immovable property may, in an appropriate case, ask for--
(a) possession, or partition and separate possession, of the property, in addition to such performance; or
(b) any other relief to which he may be entitled, including the refund of any earnest money or deposit paid or 1[made by] him, in case his claim for specific performance is refused.
(2) No relief under clause (a) or clause (b) of sub-section (1) shall be granted by the court unless it has been specifically claimed: Provided that where the plaintiff has not claimed any such relief in the plaint, the court shall, at any stage of the proceeding, allow him to amend the plaint on such terms as may be just for including a claim for such relief.
(3) The power of the court to grant relief <span class="hidden_text" id="span_15"> Patna High Court CWJC No.8216 of 2013 (04) dt.09-05-2016 16</span> under clause (b) of sub-section (1) shall be without prejudice to its powers to award compensation under section 21.‖ | https://indiankanoon.org/doc/121562430/ |
9ec57d95b2f8-23 | Md. Anzar vs Md. Manzar Ali @ Kali on 9 May, 2016 | 15. Furthermore, one another enactment, the Indian Contract Act is also to be taken note of at the present moment. As per Section 10 of the Act, following agreement have been identified as a contract:-
―10. What agreements are contracts.--All agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void. --All agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void."
Nothing herein contained shall affect any law in force in 1[India], and not hereby expressly repealed, by which any contract is required to be made in writing 2or in the presence of witnesses, or any law relating to the registration of documents.‖ | https://indiankanoon.org/doc/121562430/ |
9ec57d95b2f8-24 | Md. Anzar vs Md. Manzar Ali @ Kali on 9 May, 2016 | 16. After parallel scrutiny of those relevant Sections as indicated above, it is evident that there happens to be specific requirement in terms of Section 54 of the T.P. Act to have registration of document for the purpose of effectuating sale having the consideration amount more than Rs.100. Side by side, it is apparent from Section 54 of the T. P. Act itself, that <span class="hidden_text" id="span_16"> Patna High Court CWJC No.8216 of 2013 (04) dt.09-05-2016 17</span> agreement to sell does not create any interest in or charge on such property. When no interest in terms of agreement for sale is found duly acknowledgeable, then in that event, registration is not all found necessary, and that happens to be reason behind that neither under Section 53(A) nor under Section 54 of the T.P. Act, amendment has been made in consonance with the amendment having been made under Registration Act whereunder under Section 17, Sub-section (1-A) has been introduced. | https://indiankanoon.org/doc/121562430/ |
9ec57d95b2f8-25 | Md. Anzar vs Md. Manzar Ali @ Kali on 9 May, 2016 | 17. Now, there should be parallel scrutiny of Section 17(1-A) as well as Section 49 of the Registration Act. As per Section 17(1-A) of the Registration Act, it has been mandated that the document relating to contracts to transfer for consideration any immovable property, is to be registered, and if not registered, its effect relating to part performance as envisaged under Section 53(A) of the T.P. Act would be worthless. However, if it is taken together with proviso of Section 49 of the Registration Act, it is evident that the unregistered deed of contract is found admissible with regard to the suit having filed in accordance of Specific Relief Act. That means to say, some sort of demarcation is found in terms of Section 53(A) of the T.P. Act, as well as Specific Relief Act. So, it has become crystal clear from the aforesaid analysis that gust of Section 53(A) of the T.P. Act is an event <span class="hidden_text" id="span_17"> Patna High Court CWJC No.8216 of 2013 (04) dt.09-05-2016 18</span> which visualizes before execution of sale as per Section 54 of the T. P. Act while desirability of application of Specific Relief of Contract Act is to coerce the party through process of the Court to follow up the terms so agreed amongst them under the banner of lawful contract. And that happens to be reason behind having presence of proviso of Section 49 of the Registration Act. | https://indiankanoon.org/doc/121562430/ |
9ec57d95b2f8-26 | Md. Anzar vs Md. Manzar Ali @ Kali on 9 May, 2016 | 18. Part performance is an event preceding sale whereunder delivery of possession is given and the incidence of delivery of possession is only accountable, in case, the document is registered while specific performance of contract is an outcome of an agreement having arrived in between the parties whereunder one could bring a suit for performance in terms of contract arrived in between the parties and for that purpose, handing over possession of immovable property is not a condition precedent. So, from analytical approach of the relevant law, it is evident that handing over the property in pursuance of agreement will be considered only on the basis of having the document registered, while for the purpose of launching a suit under Specific Performance of Contract, no such barrier is found in terms of Proviso 49 of the Registration Act. Therefore, both have got two distinct identity and commands two different sphere. Furthermore, be ascertained after due adjudication.
19. In Suraj Lamp and Industries Private Limited (2) through Director vs. State of Haryana and another reported in (2012) 1 SCC 656, it has been held:-
"16. Section 54 of TP Act makes it clear that a contract of sale, that is, an agreement of sale does not, of itself, create any interest in or charge on such property. This Court in Narandas Karsondas v. S.A. Kamtam and Anr. (1977) 3 SCC 247, observed:
―32. A contract of sale does not of itself create any interest in, or charge on, the property. This is expressly declared in Section 54 of the Transfer of Property Act. | https://indiankanoon.org/doc/121562430/ |
9ec57d95b2f8-27 | Md. Anzar vs Md. Manzar Ali @ Kali on 9 May, 2016 | See Rambaran Prosad v. Ram Mohit Hazra [1967]1 SCR 293. The fiduciary character of the personal obligation created by a contract for sale is recognised in Section 3 of the Specific Relief Act, 1963, and in Section 91 of the Trusts Act. The personal obligation created by a contract of sale is described in Section 40 of the Transfer of Property Act as an obligation arising out of contract and annexed to the ownership of property, but not amounting to an interest or easement therein."
33. In India, the word `transfer' is defined with reference to the word `convey'. The word `conveys' in section 5 of Transfer of Property Act is used in the wider sense of conveying ownership.
37. ...that only on execution of conveyance ownership passes from one party to another...."
17. In Rambhau Namdeo Gajre v. Narayan Bapuji Dhotra [2004 (8) SCC 614] this Court held:
"10. Protection provided under Section 53A of the Act to the proposed transferee is a shield only against the transferor. It disentitles the transferor from disturbing the possession of the proposed transferee who is put in possession in pursuance to such an agreement. It has nothing to do with the ownership of the proposed transferor who remains full owner of the property till it is legally conveyed by executing a registered sale deed in favour of the transferee. Such a right to protect possession against the proposed vendor cannot be pressed in service against a third party." | https://indiankanoon.org/doc/121562430/ |
9ec57d95b2f8-28 | Md. Anzar vs Md. Manzar Ali @ Kali on 9 May, 2016 | 18. It is thus clear that a transfer of <span class="hidden_text" id="span_20"> Patna High Court CWJC No.8216 of 2013 (04) dt.09-05-2016 21</span> immoveable property by way of sale can only be by a deed of conveyance (sale deed). In the absence of a deed of conveyance (duly stamped and registered as required by law), no right, title or interest in an immoveable property can be transferred.
19. Any contract of sale (agreement to sell) which is not a registered deed of conveyance (deed of sale) would fall short of the requirements of sections 54 and 55 of TP Act and will not confer any title nor transfer any interest in an immovable property (except to the limited right granted under section 53-A of TP Act). According to TP Act, an agreement of sale, whether with possession or without possession, is not a conveyance.
Section 54 of TP Act enacts that sale of immoveable property can be made only by a registered instrument and an agreement of sale does not create any interest or charge on its subject matter.‖ | https://indiankanoon.org/doc/121562430/ |
9ec57d95b2f8-29 | Md. Anzar vs Md. Manzar Ali @ Kali on 9 May, 2016 | 20. The facts of the decision so relied upon by the learned counsel for the petitioner as reported in 2010(1) P.L.J.R. 317, it is evident that the same was under Order 39 and 1 and 2 read with Section 151 of the C.P.C. relating to Title Suit No.24 of <span class="hidden_text" id="span_21"> Patna High Court CWJC No.8216 of 2013 (04) dt.09-05-2016 22</span> 2003 as well as Title Suit No.19 of 2003 and in the aforesaid background, though the suit were filed asking for directing the defendant to execute sale deed after receiving the due consideration amount and in the aforesaid background, the theme of applicability of injunction was considered and further, in casual manner, the proprietary of the document in question in terms of Section 17 (1-A) of the Registration Act was taken note of. Furthermore, the aforesaid exercise was taken up in the background of argument advanced on behalf of learned counsel for the appellant that the suit was in terms of Section 53(A) of the T. P. Act. | https://indiankanoon.org/doc/121562430/ |
9ec57d95b2f8-30 | Md. Anzar vs Md. Manzar Ali @ Kali on 9 May, 2016 | 21. In A.I.R. 2010 Punjab and Haryana 77, the aforesaid suit was for the purpose of Specific Performance of Contract wherein after appearance of defendant, plea was taken up on the ground of fraud having been played and for that, separate suit was filed and both the suits were clubbed together and then, was decided against which an appeal was filed. After going through the judgment, it is evident that though at an initial stage, the Court had perceived the suit to be that of Specific Performance of Contract, but during course of discussion, the finding was recorded treating the suit to be under Section 53(A) of the T.P. Act and so, applicability of Section 17(1-A) has been perceived. <span class="hidden_text" id="span_22"> Patna High Court CWJC No.8216 of 2013 (04) dt.09-05-2016 23</span>
22. As held, both two, that means to say, plea under Section 53(A) of the T. P. Act as well as a suit under Specific Performance of Contract Act has got independent identity and for that proper adjudication is required. That being so, it happens to be premature to infer at the present moment that instant suit happens to be under Section 53(A) of the T.P. Act, therefore, has got some sort of bezel of Section 17 (1-A) of the Registration Act.
23. In the background of aforesaid observation, instant petition is disposed of.
(Aditya Kumar Trivedi, J) Vikash/-
U | https://indiankanoon.org/doc/121562430/ |
9f3960bb7cbe-0 | Thakur Shambhu Prasad Singh @ ... vs Krishna Kumar Singh & Ors on 11 August, 2017 | IN THE HIGH COURT OF JUDICATURE AT PATNA
First Appeal No.633 of 1998
====================================================== | https://indiankanoon.org/doc/65837090/ |
9f3960bb7cbe-1 | Thakur Shambhu Prasad Singh @ ... vs Krishna Kumar Singh & Ors on 11 August, 2017 | ======================================================
Kusheshwar Purbey .... .... Appellant/s Versus Shri Shri 108 Ram Janaki Jee S .... .... Respondent/s ====================================================== with Miscellaneous Appeal No.508 of 1998 ====================================================== Kusheshwar Purbey .... .... Appellant/s Versus Mohan Nayak & Ors .... .... Respondent/s ====================================================== with First Appeal No.270 of 1998 ====================================================== Jibachh Pradhan .... .... Appellant/s Versus Most.Radha Devi .... .... Respondent/s ====================================================== with First Appeal No.276 of 2008 ====================================================== Thakur Shambhu Prasad Singh @ Thakur Pd. Sinha & Ors .... .... Appellant/s Versus Krishna Kumar Singh & Ors .... .... Respondent/s ====================================================== with First Appeal No.114 of 2013 ====================================================== Kusum Devi Wife Of Uma Kant Pandey Resident Of Village- Gaderia, P.S.- Imamganj, Dist.- Gaya .... .... Appellant/s Versus Pallavi Kumari D/O Late Brajesh Kumar Pandey Alias Brajesh Pandey R/O Village- Babhandi (Gaiwalganj), P.S. And Anchal- Imamganj, Dist.- Gaya .... .... Respondent/s ====================================================== with <span class="hidden_text" id="span_1"> Patna High Court FA No.633 of 1998 (52) dt.11-08-2017</span> First Appeal No.450 of 2001 ====================================================== Ram Ekbal Dubey @ Nathuni Dube .... .... Appellant/s Versus Deo Kumar Dubey & Anr .... .... Respondent/s ====================================================== with First Appeal No.98 of 1991 ====================================================== Indri Kuer & Ors .... .... Appellant/s Versus Krishna Kant Singh & Ors .... .... Respondent/s ====================================================== Appearance : | https://indiankanoon.org/doc/65837090/ |
9f3960bb7cbe-2 | Thakur Shambhu Prasad Singh @ ... vs Krishna Kumar Singh & Ors on 11 August, 2017 | (In FA No.633 of 1998) For the Appellant/s : Mr. Ganpati Trivedi, Sr. Adv. | https://indiankanoon.org/doc/65837090/ |
9f3960bb7cbe-3 | Thakur Shambhu Prasad Singh @ ... vs Krishna Kumar Singh & Ors on 11 August, 2017 | Mr. R.K. Sinha no. 2, Adv.
Mr. Madan Mohan, Adv.
Mrs. Pallavi Pandey, Adv.
For the Respondent/s : Mr. Jitendra Kishore Verma, Adv.
Mr. Anjani Kumar, Adv.
Mr. Abhishek Anand, Adv.
Mr. Gautam Sinha, Adv.
(In MA No.508 of 1998) For the Appellant/s : Mr. Sukumar Sinha For the Respondent/s : Mr. Nirmal Kumar Sinha-3 Mr. Arun Kumar Mr. Nawal Kishore Prasad (In FA No.270 of 1998) For the Appellant/s : Mr. Ray Shivaji Nath, Sr. Adv.
Mr. Ray Saurabh Nath, Adv.
Mrs. Manjari Nath, Adv.
Mr. Chandan Jha, Adv.
Mr. Alok Anand, Adv.
For the Respondent/s : Mr. Subhro Sanyal Mr. Sanjiv Kumar <span class="hidden_text" id="span_3"> Patna High Court FA No.633 of 1998 (52) dt.11-08-2017</span> Mr. S.Kashyap (In FA No.276 of 2008) For the Appellant/s : Mr. Ratan Kumar, Adv. | https://indiankanoon.org/doc/65837090/ |
9f3960bb7cbe-4 | Thakur Shambhu Prasad Singh @ ... vs Krishna Kumar Singh & Ors on 11 August, 2017 | For the Respondent/s : Mr.
(In FA No.114 of 2013)
For the Appellant/s : Mr.
For the Respondent/s : Mr.
(In FA No.450 of 2001)
For the Appellant/s : Mr. Kamal Nayan Choubey, Adv.
Mr. Ambuj Nayan Choubey, Adv.
Mr. Yogendra Kumar Dwiwedi, Adv.
Mr. Nagendra Dubey
For the Respondent/s : Mr. Shrinandan Singh, Adv.
Mr. Ram Nath Sharma, Adv.
(In FA No.98 of 1991)
For the Appellant/s : Mr. Kalyan Kr.Ghosh
Mr. Binay Kr.Ambastha
For the Respondent/s : Mr. Madan Singh
Mr. Hari Nr.Singh
====================================================== CORAM: HONOURABLE MR. JUSTICE KISHORE KUMAR MANDAL and HONOURABLE MR. JUSTICE V. NATH CAV ORDER (Per: HONOURABLE MR. JUSTICE KISHORE KUMAR MANDAL) 52 11-08-2017 The order on the reference of the learned single judge. | https://indiankanoon.org/doc/65837090/ |
9f3960bb7cbe-5 | Thakur Shambhu Prasad Singh @ ... vs Krishna Kumar Singh & Ors on 11 August, 2017 | The irksome issue pertaining to the classification of the appeals filed before this Court under Section 299 of the Indian Succession Act (for short 'the Act') and under section 384(2) of the Act has been placed for determination upon reference <span class="hidden_text" id="span_5"> Patna High Court FA No.633 of 1998 (52) dt.11-08-2017</span> expressing doubts over the decision by a learned single judge in Most. Kewala Devi Vs. Smt. Krishna Devi, 2013 (1) PLJR
176. The reasons for making the reference has been mentioned, in detail, in the order dated 03.11.2015, and the authoritative pronouncements by the Apex Court and other courts have also been elaborately taken into notice which require no repetition in this order. Suffice it to state that some of the appeals have been filed under Section 299 of the Act as First Appeals against the order of grant or refusal of probate or letters of administration and some of the appeals have been filed under Section 384 (2) of the Act against the order of grant or refusal of succession certificate. | https://indiankanoon.org/doc/65837090/ |
9f3960bb7cbe-6 | Thakur Shambhu Prasad Singh @ ... vs Krishna Kumar Singh & Ors on 11 August, 2017 | The main plank of submissions of Mr. Trivedi, learned senior counsel for the appellant in F.A. No. 633 of 1998 and M.A. No. 504 of 1998 is based upon the proposition that in view of the use of the word 'order' in Section 299 of the Act, an appeal filed against such 'order' would be governed by Section 104 of C.P.C. providing for an appeal against an order passed in the suit and would be further regulated by the procedure prescribed therefor. Pyramiding his contentions, learned senior counsel has relied upon general rules of statutory interpretations <span class="hidden_text" id="span_7"> Patna High Court FA No.633 of 1998 (52) dt.11-08-2017</span> frowning upon import of external aid for providing meaning to unambiguous words or provisions in a statute. Placing decisions galore, it has been propounded that an order passed in a proceeding for grant of probate or letters of administration of a Will or a proceeding for grant of succession certificate shall be subject to the procedure envisaged in the Code of Civil Procedure for an appeal against an order. Lastly, it has also been submitted that the Constitution Bench decision in P.S. Sathappan vs. Andhra Bank Ltd., A.I.R. 2004 S.C. 5152 has settled the controversy finally holding that an appeal against the orders in controversy at present would be an appeal under Section 104 C.P.C. Learned senior counsel, in addition, has also referred to the provisions in part-X of the Indian Succession Act for contending that an order passed in a proceeding for grant of succession certificate has also been declared conclusive but according to the practice and procedure of this Court, a Misc. Appeal is filed and entertained against such an order. | https://indiankanoon.org/doc/65837090/ |
9f3960bb7cbe-7 | Thakur Shambhu Prasad Singh @ ... vs Krishna Kumar Singh & Ors on 11 August, 2017 | Mr. Verma, learned counsel appearing on behalf of the respondents in F.A. No. 633 of 1998 and M.A. No. 508 of 1998, however, has taken an entirely different stand by coming out with the proposition that taking a literal meaning of the word 'order' in a statutory provision would not be only a determinative <span class="hidden_text" id="span_9"> Patna High Court FA No.633 of 1998 (52) dt.11-08-2017</span> factor, and the context in which certain order has been passed and its effect on the rights and liabilities of the parties in the proceeding have to be given primacy. It has been propounded that an adjudication in a proceeding shall be a 'decree' if the statute so provides directly or by deeming fiction but there is another classification also where such adjudication has been conferred the status of a decree under certain circumstances, by authoritative pronouncements. It has been argued that in a proceeding for grant of probate or letters of administration there is definitely a final adjudication on the rights and liabilities of the parties and an order under Section 299 of the Indian Succession act will have to be given the status of a 'decree' and an appeal against such order will be regulated by the procedure prescribed for an appeal against a decree. Making a frontal attack on the submissions on behalf of the appellants in first two appeals regarding statutory conclusiveness of the order passed in a proceeding for grant of probate or letters of administration and the proceeding of grant of succession certificate, it has been pointed out that there is substantial difference in the provision under Section 275 and the provision under Section 381 pertaining to the element of conclusiveness inasmuch as a certificate granted under part-X of the Indian Succession Act, as <span class="hidden_text" id="span_11"> Patna High Court FA No.633 of | https://indiankanoon.org/doc/65837090/ |
9f3960bb7cbe-8 | Thakur Shambhu Prasad Singh @ ... vs Krishna Kumar Singh & Ors on 11 August, 2017 | class="hidden_text" id="span_11"> Patna High Court FA No.633 of 1998 (52) dt.11-08-2017</span> envisaged in Section 381, has been expressly made subject to the other provision of said part which includes Section 373 as well but no such condition has been mentioned while declaring the conclusiveness of the order passed in a proceeding for grant of probate or letters of administration. | https://indiankanoon.org/doc/65837090/ |
9f3960bb7cbe-9 | Thakur Shambhu Prasad Singh @ ... vs Krishna Kumar Singh & Ors on 11 August, 2017 | Learned counsel for the parties in other appeals, however, have supported the reference by submitting that a regular First Appeal would lie against the final order passed in a proceeding for grant of probate or letters of administration and a Misc. Appeal would lie against the final order in a proceeding for grant of succession certificate.
Learned counsel for the parties have relied upon large number of decisions which shall be taken into notice in this order appropriately hereinafter. | https://indiankanoon.org/doc/65837090/ |
9f3960bb7cbe-10 | Thakur Shambhu Prasad Singh @ ... vs Krishna Kumar Singh & Ors on 11 August, 2017 | After considering the submissions on behalf of the parties, it is quite limpid that the adjudication in a proceeding for grant of probate or letters of administration involves determination of certain rights of the parties. This is also the view expressed by the Full Bench of the Allahabad High Court in Mrs. Panzy Fernandas Vs. Mrs. M.F. Queoros, A.I.R. 1963 All. 153 observing that an order passed in an application for probate or letters of administration does adjudicate on certain <span class="hidden_text" id="span_13"> Patna High Court FA No.633 of 1998 (52) dt.11-08-2017</span> rights of the parties conclusively. This facet has been now finally settled by the Apex Court in Subal Paul Vs. Malina Paul, (2003) 10 SCC 361 where their lordships have observed as follows:-
"31..........The order passed under Section 299 of the Act may be an interlocutory order determining the rights of the parties or a final order. When a final order is passed in a contentious suit, as would be evident from the provisions contained in Section 295 of the Act, the procedures of the Code of Civil Procedure are required to be followed. Therefore, a final order passed between the parties adjudicating upon the rights and obligations which are binding between the parties thereto and are enforceable, although may not be stricto sensu a decree within the meaning of section 2 (2) of the Code of Civil Procedure Code but it is beyond any cavil that the same would be a judgment within a meaning of Section 2 (9) thereof........" | https://indiankanoon.org/doc/65837090/ |
9f3960bb7cbe-11 | Thakur Shambhu Prasad Singh @ ... vs Krishna Kumar Singh & Ors on 11 August, 2017 | The controversy pertaining to the nature and legal effect of a final adjudicatory order in a proceeding for grant of probate or letters of administration has been also highlighted by the Apex Court in Smt. Rukmani Devi vs. Narendra Lal Gupta, A.I.R. 1984 SC 1866 where their lordships have opined <span class="hidden_text" id="span_15"> Patna High Court FA No.633 of 1998 (52) dt.11-08-2017</span> as follows:-
"2...........It is well-settled that the decision of the probate court is a judgment in rem. The High Court rightly held that till the order granting probate remains in force it is conclusive as to the execution and validity of the will till the grant of probate is revoked. Apart from the fact that a decision of the probate court would be a judgment in rem not only binding on the parties to the probate proceedings but it will be binding on the whole world. Therefore, a solemn duty is cast on the probate court. Section 41 of the Indian Evidence Act, 1872 provides that a final judgment or order of a competent court in the exercise of probate jurisdiction is conclusive proof of what is decided therein that is about the genuineness of the will. To be precise, a probate granted by a competent court is conclusive of the validity of such will until it is revoked and no evidence can be admitted to impeach it except in a proceeding taken for revoking the probate..................." | https://indiankanoon.org/doc/65837090/ |
9f3960bb7cbe-12 | Thakur Shambhu Prasad Singh @ ... vs Krishna Kumar Singh & Ors on 11 August, 2017 | We are inclined to align with the submission of Mr. Verma, learned counsel for the respondents that taking a literal meaning and connotation of the word 'order' in a statutory <span class="hidden_text" id="span_17"> Patna High Court FA No.633 of 1998 (52) dt.11-08-2017</span> provision would not be sufficient for determination of the nature and import of such order. In this context, it would be condign to notice the distinctive feature of the definition of a decree and an order in section 2 (2) and Section 2 (14) of the Code of Civil Procedure. In the former the emphasis is on an adjudication conclusively determining the rights of the parties whereas in the later it is any decision of the civil court which is not a decree. The attempt on behalf of the appellants to wriggle out of the implications flowing from the observations of their lordships in Subal Paul (supra) on the basis of the contention that the issue in the said decision mainly pertained to the connotation of 'judgement', has failed to enthuse this Court because in view of the definition of 'judgment' in the Code of Civil Procedure, there would have to be a judgment in both the cases when there is a 'decree' or 'order'. The crucial test, therefore, for determination of the question whether an order can be raised to the level of the decree is only the consideration whether it finally adjudicates the rights of the parties in the proceeding. | https://indiankanoon.org/doc/65837090/ |
9f3960bb7cbe-13 | Thakur Shambhu Prasad Singh @ ... vs Krishna Kumar Singh & Ors on 11 August, 2017 | In the case of M/s Ram Chand Spg. And Wvg. Mills Vs. M/s Bijli Cotton Mills (p) Ltd., Hathras, A.I.R. 1967 S.C. 1344, a three judge Bench of the Apex Court has laid down the test to adjudge the nature of an 'order' being final order as <span class="hidden_text" id="span_19"> Patna High Court FA No.633 of 1998 (52) dt.11-08-2017</span> follows:-
"12....... As to what is a final order was stated by this Court in Jethanand and Sons Vs. State of Uttar Pradesh, A.I.R. 1961 SC 794, in the following terms:-
"An order is final if it amounts to a final decision relating to the rights of the parties in dispute in the civil proceeding. If after the order the civil proceeding still remains to be tried and the rights in dispute between the parties had to be determined, the order is not a final order within the meaning of Art.
133."
Similarly in Abdul Rahman Vs. D.K. Kassim and Sons, 60 Ind App 76: (A.I.R. 1933 PC 58), Sir George Lowndes observed: "The finality must be finality in relation to the suit. If after the order the suit is still alive in which rights of the parties have still to be determined no appeal lies against it. The fact that the order decides an important and even a vital issue is by itself not material. If the decision on an issue puts an end to the suit, the order will undoubtedly be a final one." | https://indiankanoon.org/doc/65837090/ |
9f3960bb7cbe-14 | Thakur Shambhu Prasad Singh @ ... vs Krishna Kumar Singh & Ors on 11 August, 2017 | 13. In deciding the question whether the order is a final order determining the rights of parties and, therefore, falling within the definition of a decree in S. 2 (2), it would often become necessary to view it from the <span class="hidden_text" id="span_21"> Patna High Court FA No.633 of 1998 (52) dt.11-08-2017</span> point of view of both the parties-in the present case-the judgment-debtor and the auction-purchaser...... ............................"
The dictum of the Apex Court in Rajni Rani Vs. Khairati Lal, (2015) 2 SCC 682, in the context of the present controversy, is relevant to be noticed where their lordships, keeping in view the principles laid down in Jethanand (supra) in detail, has ruled as follows:-
"16.........We have referred to the aforesaid decisions to highlight that there may be situations where an order can get the status of a decree. A court may draw up a formal decree or may not, but if by virtue of the order of the court, the rights have finally been adjudicated, irrefutably it would assume the status of a decree................................................." | https://indiankanoon.org/doc/65837090/ |
9f3960bb7cbe-15 | Thakur Shambhu Prasad Singh @ ... vs Krishna Kumar Singh & Ors on 11 August, 2017 | Learned senior counsel for the appellant in the first two appeals has led emphasis that though the right to appeal against an order in the proceeding for grant of probate or letters of administration has been conferred by Section 299 of the Indian Succession Act but such an appeal, having been expressly noticed/saved in Section 104 C.P.C., would nonetheless be an appeal under the said section of the C.P.C. Strong reliance has been placed on the Constitution Bench decision in P.S. <span class="hidden_text" id="span_23"> Patna High Court FA No.633 of 1998 (52) dt.11-08-2017</span> Sathappan (supra). However, the decision in P.S. Sathappan (supra) came up for consideration by the Apex Court, later on, in Fuerst Day Lawson Limited Vs. Jindal Exports Limited (2011) 8 SCC 333 where after referring to earlier decisions including the decision in Sublal Paul (supra), it has been held as follows:-
"29. P.S. Sathappan is actually an authority on the interplay of Section 104 of the Code of Civil Procedure and the Letters Patent jurisdiction of the High Court.................................................." | https://indiankanoon.org/doc/65837090/ |
9f3960bb7cbe-16 | Thakur Shambhu Prasad Singh @ ... vs Krishna Kumar Singh & Ors on 11 August, 2017 | 30. Having, thus, put the controversy in the historical perspective, the Court in P.S. Sathappan case referred to sections, 4 and 104 of the Code and made the following observation in para 6 of the judgment. "6......To be immediately notice that now the legislature provides that the provision of this code will not affect or limit special law unless specifically excluded. The legislature also simultaneously saves, in Section 104 (1), appeals under „any law for the time being in force‟. These would include letters patent appeals."
The above is really the kernel of the decision in P.S. Sathappan and the rest of the judgment is only an elucidation of this <span class="hidden_text" id="span_25"> Patna High Court FA No.633 of 1998 (52) dt.11-08-2017</span> point....................."
(emphasis supplied) In view of the interpretation to the Constitution Bench decision in P.S. Sathappan (supra) as given above by the Apex Court in Fuerst Day Lawson (supra), we do not find force in the submission by learned senior counsel for the appellant that an appeal filed under Section 299 of the Indian Succession Act is an appeal under Section 104 C.P.C. and governed by the procedure prescribed for such appeal.
The decision in Most. Kewala Devi (supra) has been rendered expressly relying upon the decision of the Full Bench of this Court in Sunita Kumari Vs. Prem Kumar, 2009 (3) PLJR | https://indiankanoon.org/doc/65837090/ |
9f3960bb7cbe-17 | Thakur Shambhu Prasad Singh @ ... vs Krishna Kumar Singh & Ors on 11 August, 2017 | 990. It is manifest, however, that the controversy which came up for consideration by the Full Bench in Sunita Kumari related to the nature of an order passed under the Family Courts Act, 1984 which has been enacted for adjudication of specified disputes mentioned therein and also prescribing the procedure for determination of such dispute/matter. This aspect has also been taken into notice by the Full Bench in Sunita Kumari (supra). We, therefore, find it difficult to subscribe to the proposition that the law laid down in Sunita Kumari (supra) shall have general application to all the statutory provisions providing for the <span class="hidden_text" id="span_27"> Patna High Court FA No.633 of 1998 (52) dt.11-08-2017</span> appeal against an 'order'.
The fact has been accepted by learned counsel for the parties that in this court, prior to the decision in Most. Kewala Devi (supra) an appeal filed under Section 299 of the Act was treated as First Appeal and regulated by the procedure prescribed for a First Appeal and the appeal filed under Section 384 (2) of the Act was treated as Misc. Appeal and regulated by the procedure prescribed for Misc. Appeal. In the order of reference, notice has been taken to the provisions in the Patna High Court Rules having bearing upon the present issue relating to classification of the appeal (s). Even in Fuerst Dau Lawson (supra) their lordships have observed that 'normally, once an appeal reaches the High court it has to be determined according to the rules of practice and procedure of the High Court'. | https://indiankanoon.org/doc/65837090/ |
9f3960bb7cbe-18 | Thakur Shambhu Prasad Singh @ ... vs Krishna Kumar Singh & Ors on 11 August, 2017 | The conclusive nature of an order passed in a proceeding for grant of probate or letters of administration has been envisaged in section 275 of the Indian Succession Act but while prescribing the conclusive nature of the order in a proceeding for grant of succession certificate the provision of Section 381 has been made subject to the other provisions of part-X of the Act. Noticeably, Section 373 (3) falling in part-X of the Act dilutes the conclusive nature of the order in the <span class="hidden_text" id="span_29"> Patna High Court FA No.633 of 1998 (52) dt.11-08-2017</span> proceeding for grant of succession certificate when such proceeding has been stated to be a summary proceeding and the Court has been authorized to grant certificate to the applicant having prima facie the best title. Learned senior counsel on behalf of the appellant in the first two appeals is, therefore, not sound in his submission that the appeal under Section 299 and section 384 (2) can be treated at par so far as the conclusiveness of the orders therein is concerned.
At this juncture, it would be fruitful to refer to a bench decision of Karnatka High Court in Miss Pressy Pinto Vs. Rony Maxim Pinto, A.I.R. 2009 Kar. 157 where the same issue came up for consideration and decided. It has been held as follows:-
"4. The question posed before us is whether such appeal could be termed as misc. first appeal or regular first appeal. If it is a misc. first appeal, S. 104 and O. 43, Rr. 1 and 2 of C.P.C. are applicable and if it is a regular first appeal S. 96, O.41, Rr. 1 and 2 of C.P.C. are applicable.............................." | https://indiankanoon.org/doc/65837090/ |
9f3960bb7cbe-19 | Thakur Shambhu Prasad Singh @ ... vs Krishna Kumar Singh & Ors on 11 August, 2017 | ".........When a decision is made determining the rights of the parties with regard to the matters in controversy, genuineness or otherwise of the Will, etc., such a final decision of the Court would <span class="hidden_text" id="span_31"> Patna High Court FA No.633 of 1998 (52) dt.11-08-2017</span> become a decree. Once the petition under Indian Succession Act becomes a contentious one, it shall be treated as a suit and even the case is numbered as original suit. The Court shall frame issues, allow the parties to lead evidence and then finally proceed to pronounce the judgment decreeing or dismissing the suit as the case may be. As per sub-section (14) of S. 2 "orders" also means formal expression of any decision of a Civil Court which is not a decree. When once the P and SC takes the form of an original suit, all the stages of suit have to be proceeded with and the ultimate result would be either decreeing the suit or dismissing the suit. The final decision of a contested matter pertaining to issues of probate or letters of administration ultimately results in the form of a decree if the case of the plaintiff is approved. | https://indiankanoon.org/doc/65837090/ |
9f3960bb7cbe-20 | Thakur Shambhu Prasad Singh @ ... vs Krishna Kumar Singh & Ors on 11 August, 2017 | 5. In other words, by virtue of S. 295 of Indian Succession Act and the definitions referred to above, the contested matter in respect of a petition for probate or letters of administration becomes a suit and by virtue of S. 299 the appeal shall be in accordance with the provisions of Code of Civil Procedure. By virtue of sub-section (2) of S. 2, S. 96, O. XLI, R.1, such contested matter <span class="hidden_text" id="span_33"> Patna High Court FA No.633 of 1998 (52) dt.11-08-2017</span> against the orders in a original suit pertaining to issue of probate or letters of administration has to be termed as regular First Appeal...................................."
We have not been persuaded to take a different view than that taken in Pressy Pinto (supra). We respectfully agree to the view expressed by the Bench in the said case. Thus we come to the conclusion that the issue in Most. Kewala Devi (supra) regarding classification of an appeal under Section 299 of the Indian Succession Act has not been correctly decided. Accordingly, we answer the reference by holding that an appeal under Section 299 of the Indian Succession Act finally disposing of a contentious proceeding, as envisaged under Section 295, shall be treaded as regular First Appeal and would be governed by the procedure prescribed for such an appeal. It is further held that an appeal filed under Section 384 (2) of the Indian Succession Act shall be treated as Misc. Appeal and would be governed by the procedure prescribed for such an appeal. | https://indiankanoon.org/doc/65837090/ |
9f3960bb7cbe-21 | Thakur Shambhu Prasad Singh @ ... vs Krishna Kumar Singh & Ors on 11 August, 2017 | As the issue decided in Most. Kewala Devi (supra) has held the field since 27.02.2012, in the interest of justice and to avoid complication and harassment to the litigants, it is directed that the appeals filed under Section 299 of the Indian Succession Act in a contentious proceeding as envisaged under <span class="hidden_text" id="span_35"> Patna High Court FA No.633 of 1998 (52) dt.11-08-2017</span> Section 295 of the Indian Succession Act after 27.02.2012 shall be treated for all purposes as First Appeals and similarly the appeals filed under Section 384 (2) of the Indian Succession Act shall be treated as Misc. Appeals for all purposes.
The reference is answered, accordingly.
(Kishore Kumar Mandal, J.) V. Nath, J: I agree.
:
(V. Nath, J.) Devendra/-
U | https://indiankanoon.org/doc/65837090/ |
18f362df360a-0 | Brij Kishore Paswan & Ors vs The State Of Bihar & Ors on 18 April, 2014 | Patna High Court LPA No.140 of 2014 (9) dt.18-04-2014 1
IN THE HIGH COURT OF JUDICATURE AT PATNA | https://indiankanoon.org/doc/189543577/ |
18f362df360a-1 | Brij Kishore Paswan & Ors vs The State Of Bihar & Ors on 18 April, 2014 | LETTERS PATENT APPEAL NO.140 OF 2014
IN
CIVIL WRIT JURISDICTION CASE NO. 18253 OF 2011
======================================================
1. Brij Kishore Paswan, Son of Late Sri Paswan Resident, resident of Village- Mangabar, P.S.- Nabinagar, District- Aurangabad
2. Birendra Singh, Son of Late Brahm Lok Singh, Resident of Village- Kerka, P.S. Nabinagar And District- Aurangabad .... .... Appellants VERSUS
1. The State Of Bihar through the Principal Secretary, Department Of Revenue And Land Reforms, Patna (Bihar)
2. The District Collector, Aurangabad
3. The District Land Acquisition Officer, Aurangabad
4. The Additional District Magistrate, Aurangabad
5. The Circle Officer, Block Nabinagar, Aurangabad
6. The Bhartiye Rail Bijlee Corporation Ltd. Through Its Managing Director, New Delhi
7. Chief Executive Officer, Nabinagar Thermal Power Project, Bhartiye Rail Bijlee Company Limited, Head Quarter First Floor, Vidyut Bhavan, Bailey Road, Patna
8. General Manager, Nabinagar Thermal Power Project, Bhartiye Rail Bijlee Company Ltd., Site Office Satyendra Nagar, Aurangabad .... .... Respondents ====================================================== Appearance : | https://indiankanoon.org/doc/189543577/ |
18f362df360a-2 | Brij Kishore Paswan & Ors vs The State Of Bihar & Ors on 18 April, 2014 | For the Appellant/s : Mr. Binod Kumar Singh, Advocate Mr. Anirudh Kumar Verma, Advocate For the Respondent/s : Mr. Anil Kumar Sinha,, Advocate Mr. A.C.to Advocate General ====================================================== CORAM: HONOURABLE MR. JUSTICE I. A. ANSARI AND HONOURABLE MR. JUSTICE SAMARENDRA PRATAP SINGH C.A.V. ORDER (Per: HONOURABLE MR. JUSTICE SAMARENDRA PRATAP SINGH) 9 18-04-2014 On requisition, vide letter no. ERHQ/NP/41, dated 15.05.2007, of National Thermal Power Corporation, the State Government decided to acquire lands of 9 (nine) villages for the purposes of setting up of Nabi Nagar <span class="hidden_text" id="span_1"> Patna High Court LPA No.140 of 2014 (9) dt.18-04-2014 2</span> Thermal Power Project, titled Bhartiya Rail Bijlee Company Limited, at Aurangabad (hereinafter referred to as „the Company‟). The nine villages, whose lands were placed under acquisition, in terms of the requisition aforementioned, are; (i) Pirauta (ii) Saleya (iii) Kajarain (iv) Egharas (v) Surar (vi) Mangabar (vii) Khaira (viii) Kerka and (ix) Dhundhua. | https://indiankanoon.org/doc/189543577/ |
18f362df360a-3 | Brij Kishore Paswan & Ors vs The State Of Bihar & Ors on 18 April, 2014 | 2. The rate of land, for payment of compensation, was determined on the basis of criteria contained in Clause (1) of the Bihar Land Acquisition Re- settlement and Rehabilitation Policy, 2007. On the basis of the criteria laid down in the said Policy, the value of the land, under acquisition, was determined at Rs. 5,16,221.83/- per acre for five villages, namely, Pirauta, Saleya, Kajarain, Egharas, Surar. The rate, determined for remaining four villages, to which the writ petitioners belonged, namely, Mangabar, Khaira, Kerka and Dhundhua, was at Rs. 2,61,317.61/- per acre and awarded sum was paid in the year 2009 itself to those, whose lands had been acquired including the writ petitioners, and it was, in the year 2009 itself, that the possession of the lands was taken over by the respondents.
3. Almost two years after receipt of the awarded sums, some persons, including the two appellants, who belonged to village Mangabar, Khaira, Kerka and <span class="hidden_text" id="span_2"> Patna High Court LPA No.140 of 2014 (9) dt.18-04-2014 3</span> Dhundhua, filed a writ petition, bearing C.W.J.C. No. 18253 of 2011, seeking direction for payment of compensation for the lands acquired at the rate of Rs. 5,16,281.83/- per acre, as had been determined for lands acquired in other five villages, for the Nabi Nagar Thermal Power Project, in the light of Government Instruction No. 15/D.L.A.07/06- 923R, dated 18.05.2010, contained in Clauses 1.1 (Kha) | https://indiankanoon.org/doc/189543577/ |
18f362df360a-4 | Brij Kishore Paswan & Ors vs The State Of Bihar & Ors on 18 April, 2014 | (ii), (iii) and (v) of Annexure-6 to the writ petition. Under the said instructions, the Government took a decision to pay maximum price fixed for any land acquired under the same transaction.
4. It is relevant to point out herein that all the writ petitioners belonged to one or the other four villages, where the rate of land was determined at Rs.2,61,317.61/- per acre for payment of compensation.
5. It is not the case of the writ petitioners that any of the oustees of the four villages, namely, Mangabar, Khaira, Kerka and Dhundhua, was paid at a rate higher than what was paid to the writ petitioners including the appellants.
6. The stand of the official respondents, in CWJC No. 18253 of 2011, was that though the Government instructions, dated 18.05.2010, had indicated grant of higher rate, the said instructions were subsequently revised vide Government memo, dated 24.05.2011, clarifying <span class="hidden_text" id="span_3"> Patna High Court LPA No.140 of 2014 (9) dt.18-04-2014 4</span> therein that the earlier instructions of the Government, dated 18.05.2010, would be applicable to cases, where award had not been prepared under Section 11 of the Land Acquisition Act, 1894. | https://indiankanoon.org/doc/189543577/ |
18f362df360a-5 | Brij Kishore Paswan & Ors vs The State Of Bihar & Ors on 18 April, 2014 | 7. It was the further case of the respondents, in CWJC No. 18253 of 2011, that the appellants resorted to agitation and even restrained the employees of the Thermal Power Project from entering into the work site hampering, thus, the project on a number of days. The respondents, in the interest of the project, held a meeting with the dissatisfied factions and agreed to pay compensation on the same rate as had been paid to the land oustees of the 5 (five) villages, namely, Pirauta, Saleya, Kajarain, Egharas and Surar, at Rs.5,16,221.83/- per acre as against the rate of Rs. 2,61,317.61/- per acre determined for the oustees of four villages, namely, Mangabar, Khaira, Kerka and Dhundhua, though legally they had no right to make such a claim.
8. In terms of the out of court settlement, so arrived at, the compensation, at enhanced rate, was to be paid only after the writ petitioners had entered into an agreement with the Company that no further claim for compensation would be made. The appellants, though wanted additional compensation at the revised rate, as indicated hereinbefore, refused to enter into such an <span class="hidden_text" id="span_4"> Patna High Court LPA No.140 of 2014 (9) dt.18-04-2014 5</span> agreement. | https://indiankanoon.org/doc/189543577/ |
18f362df360a-6 | Brij Kishore Paswan & Ors vs The State Of Bihar & Ors on 18 April, 2014 | 9. The learned single Judge noticed that a large number of beneficiaries had voluntarily accepted the compensation and only a handful of persons had resorted to arm twisting in order to extract undue advantage under the notion that the respondents would, ultimately, agree to all their demands, because it would be difficult for the respondents to abandon such a big power project. The learned single Judge observed that the appellants have already succeeded in persuading the Company to make payment at the enhanced rate, though they had received the awarded sums, in the year 2009, in terms of the provisions of the Land Acquisition Act, 1894, read with Bihar Land Acquisition Re-settlement and Rehabilitation Policy, 2007.
10. Having arrived at the conclusion, as mentioned above, the writ petition, namely, CWJC No. 18253 of 2011, has been dismissed with observation that if the writ petitioners are desirous to get the enhanced amount, they can only be allowed to get the same in terms of the agreement, which had been entered into between the parties as an out of court settlement. | https://indiankanoon.org/doc/189543577/ |
18f362df360a-7 | Brij Kishore Paswan & Ors vs The State Of Bihar & Ors on 18 April, 2014 | 11. Aggrieved by the dismissal of the writ petition, namely, CWJC No. 18253 of 2011, two of the writ petitioners have preferred this appeal. <span class="hidden_text" id="span_5"> Patna High Court LPA No.140 of 2014 (9) dt.18-04-2014 6</span>
12. The appellants, in this appeal, have taken the same stand as they had taken in CWJC No. 18253 of 2011. They state that the insistence of the respondents to make payment on enhanced rate only on entering into an agreement is unlawful and violative of Sections 15 and 23 of the Contract Act, 1872, as well as Articles 14 and 300A of the Constitution of India. The appellants state that the villagers of Mangabar, Khaira, Kerka and Dhundhua had the right to receive compensation at the same rate as has been awarded to the oustees of the other five villages.
13. On the other hand, learned Counsel for the State as well as learned Counsel appearing on behalf of the Company and Nabi Nagar Thermal Power Project have defended the order of learned single Judge as just and legal. | https://indiankanoon.org/doc/189543577/ |
18f362df360a-8 | Brij Kishore Paswan & Ors vs The State Of Bihar & Ors on 18 April, 2014 | 14. Coming to the merit of the present appeal, it needs to be made clear that the National Thermal Power Corporation, through its Deputy General Manager, made a requisition to the Government of Bihar to acquire lands of nine villages for construction of Nabi Nagar Thermal Power Project titled as Bhartiya Rail Bijlee Company Limited. A notification, under Section 4 of the Land Acquisition Act, 1894, was accordingly published, on 27.09.2008, in daily newspapers, namely, „Aaj‟ and „Piyari Urdu‟ as well as in the District Gazette, on 13.09.2008, for acquisition of the <span class="hidden_text" id="span_6"> Patna High Court LPA No.140 of 2014 (9) dt.18-04-2014 7</span> lands, of those villages for installation of Thermal Power Project. The nine villages, under acquisition, are: (i) Pirauta, (ii) Saleya, (iii) Kajarain, (iv) Egharas, (v) Surar, | https://indiankanoon.org/doc/189543577/ |
18f362df360a-9 | Brij Kishore Paswan & Ors vs The State Of Bihar & Ors on 18 April, 2014 | (vi) Mangabar, (vii) Khaira, (viii) Kerka and (ix) Dhundhua. The declaration under Section 6 of the Land Acquisition Act, 1984, was made in both the newspapers on 02.10.2008. The Joint Secretary, Department of Land Reforms, Government of Bihar, directed, on 02.02.2009, the Collector to make order of acquisition, in the light of the provisions of Sections 7 and 17(1) of the Land Acquisition Act, 1894. On 16.03.2009, notices, under Section 9 of the Land Acquisition Act, 1894, were given to the land holders to make their claim. The authority concerned made enquiry under Section 11 of the Land Acquisition Act, 1894, for determination of compensation in terms of the guidelines embodied in Bihar Land Acquisition Re-settlement and Rehabilitation Policy, 2007. An enquiry was made under Section 11(1) of the Land Acquisition Act, 1894. The rate of compensation was determined on the basis of the guidelines provided in the Bihar Land Acquisition Re- settlement and Rehabilitation Policy, 2007. The compensation for the lands of five villages, namely, Pirauta, Saleya, Kajarain, Egharas and Surar was determined @ Rs. 5,16,221.83/- per acre; whereas compensation for the lands of other villages, namely, Mangabar, Khaira, Kerka <span class="hidden_text" id="span_7"> Patna High Court LPA No.140 of 2014 (9) dt.18-04-2014 8</span> and Dhundhua was fixed @ Rs. 2,61,317.61/- per acre. Most of the oustees of all these nine villages, including the appellants, received the awarded sum under Section 12 | https://indiankanoon.org/doc/189543577/ |
18f362df360a-10 | Brij Kishore Paswan & Ors vs The State Of Bihar & Ors on 18 April, 2014 | of all these nine villages, including the appellants, received the awarded sum under Section 12 of the Land Acquisition Act, 1894, without any demur or objection. | https://indiankanoon.org/doc/189543577/ |
18f362df360a-11 | Brij Kishore Paswan & Ors vs The State Of Bihar & Ors on 18 April, 2014 | 15. The appellants herein did not even apply for making of reference to the Civil Court in terms of the provisions of Section 18 of the Land Acquisition Act, 1894. If any such reference had been sought for, but not made, the person or persons, who had applied for making of such a reference, ought to have, at the relevant point of time, taken recourse to law. Nothing, however, was done and the award attained finality.
16. After two years of acquisition, it was only in the year 2011 that the appellants as well as the other writ petitioners, who are residents of villages Mangabar, Khaira, Kerka and Dhundhua, began to demand compensation at the same rate as had been paid to the occupants of other five villages. The State Government, in the year 2007, came out with a policy, namely, Bihar Land Acquisition Re- settlement and Rehabilitation Policy, 2007, embodying therein uniform guidelines for determination of rate of land depending upon the nature of their use. The Government, vide its instructions, dated 18.05.2010, decided to grant compensation at the same rate to all the villagers, whose <span class="hidden_text" id="span_8"> Patna High Court LPA No.140 of 2014 (9) dt.18-04-2014 9</span> lands were acquired in the same transaction. The Government instructions, dated 18.05.2010, have been revised, vide Government memo, dated 24.05.2011, stating therein that the guidelines, contained therein, would be applicable to cases, where award has not been finalized. | https://indiankanoon.org/doc/189543577/ |
18f362df360a-12 | Brij Kishore Paswan & Ors vs The State Of Bihar & Ors on 18 April, 2014 | 17. There is no dispute that the appellants have received their awarded sum in the year 2009. Situated thus, it becomes clear that 2010 instructions, which stood replaced by 2011 instructions, would not ipso facto be applicable to the cases of the appellants.
18. Though the appellants herein had received the awarded sum, the appellants, taking the law into their own hand, had forced almost closure of the work of the Thermal Power Project. The respondents, in such circumstances, agreed, under pressure, to extend the benefit, which had accrued to a person under the Government instructions, dated 18.05.2010/24.05.2011, to the appellants subject to the condition that the parities concerned would enter into an agreement to the effect that the settlement, so arrived at, was final and conclusive and no further claim for compensation would be made. The respondents were, and still are, ready to make payment at the enhanced rate of Rs. 5,16,222.83/-, which was paid to others of the said five villages.
19. The plea of the appellants herein that <span class="hidden_text" id="span_9"> Patna High Court LPA No.140 of 2014 (9) dt.18-04-2014 10</span> insistence upon entering into the agreement by the respondents is unlawful and contrary to Sections 15 and 23 of the Contract Act is devoid of merit and is only to be noticed to be rejected.
20. Section 15 of the Contract Act defines "Coercion" as committing, or threatening to commit, any act forbidden by the Indian Penal Code or the unlawful detaining, or threatening to detain, any property, to the prejudice of any person whatever, with the intention of causing any person to enter into an agreement. | https://indiankanoon.org/doc/189543577/ |
18f362df360a-13 | Brij Kishore Paswan & Ors vs The State Of Bihar & Ors on 18 April, 2014 | 21. Section 23 of the Contract Act, which enumerates as to what considerations and objects are lawful and what consideration or objects shall be recorded as unlawful, read as under:
"23. What considerations and objects are lawful, and what not- The consideration or object of an agreement is lawful, unless- It is forbidden by law; or is of such a nature that, if permitted, it would defeat the provisions of any law; or is fraudulent; or involves or implies injury to the person or property of another; or the Court regards it as immoral, or opposed to public policy.
In each of these cases, the consideration or object of an agreement is said to be unlawful.
Every agreement of which the object or <span class="hidden_text" id="span_10"> Patna High Court LPA No.140 of 2014 (9) dt.18-04-2014 11</span> consideration is unlawful is void".
22. It would appear from the admitted materials on record that the award was prepared in the year 2009 and the appellants accepted the same without any objection. The appellants, at no point of time, while receiving the awarded sums, complained that they had received the awarded sums under any coercion. No reference was sought for in terms of Section 18 of the Land Acquisition Act, 1894, nor was any reference made and the appellants herein, at no stage, came to this Court seeking a direction to be issued to make reference for determination of the correct sum to be paid as compensation to the appellants. | https://indiankanoon.org/doc/189543577/ |
18f362df360a-14 | Brij Kishore Paswan & Ors vs The State Of Bihar & Ors on 18 April, 2014 | 23. Further-more, I find that compensation was paid at such a rate as was warranted by Bihar Land Acquisition Re-settlement and Rehabilitation Policy, 2007. Later on, the Government, vide its instructions, dated 18.05.2010, came out with a policy to pay compensation at the same rate to all villagers, whose lands had been acquired under the same transaction. The Government revised its policy, in the year 2011, clarifying therein that the said policy would be applicable, where award had not been received. Nonetheless, as, on account of agitation launched by the appellants and the writ petitioners, the work of the Thermal Power Corporation was getting <span class="hidden_text" id="span_11"> Patna High Court LPA No.140 of 2014 (9) dt.18-04-2014 12</span> hampered, the respondents, under such duress, agreed for an out of court settlement subject to the condition that the appellants would enter into an agreement, as mentioned hereinbefore. By no stretch of imagination, such an offer can be said to be unlawful or one involving coercion. The learned single Judge has rightly observed that it is for the appellants either to accept or not to accept the offer of the respondents.
24. I find that though the demand of the appellants, for payment of higher rates to which they may not have been entitled to, has been acceded to by the respondents, yet the appellants‟ grievances seem to be unending as they do not want to execute any agreement despite the fact that they could not have had any grievance, now, with respect to the rate of compensation, which the respondents have agreed to pay. The learned single Judge has noticed that except for some, a large number of oustees have accepted the awarded sums and the awards stand satisfied. | https://indiankanoon.org/doc/189543577/ |
18f362df360a-15 | Brij Kishore Paswan & Ors vs The State Of Bihar & Ors on 18 April, 2014 | 25. I agree with the view of the learned single Judge that on account of agitation launched by the appellants, the respondents have come out with an out of court settlement by making the offer to pay compensation at the enhanced rate as desired by the appellants subject to entering into agreement in larger interest of public <span class="hidden_text" id="span_12"> Patna High Court LPA No.140 of 2014 (9) dt.18-04-2014 13</span> project. It is up to the appellants to accept the offer by entering into an agreement or not. In case the appellants are agreeable to the offer and enter into an agreement, the respondents would fulfill their commitment of making payment at the enhanced rate without any delay.
26. With the aforesaid observations, this appeal stands dismissed.
27. No order as to costs.
(Samarendra Pratap Singh, J) I. A. Ansari, J.: While completely agreeing with the conclusions arrived at, and the directions passed by, my learned brother, Samarendra Pratap Singh, J., I consider it apposite to add a few lines to make a little explicit the nature of the offer, which the respondents concerned have, in the present case, made. | https://indiankanoon.org/doc/189543577/ |
18f362df360a-16 | Brij Kishore Paswan & Ors vs The State Of Bihar & Ors on 18 April, 2014 | 2. With regard to the above, it may be pointed out that Section 18 of the Land Acquisition Act, 1894, prescribes two distinct periods of limitation for seeking reference under Section 18 of the Land Acquisition Act, 1894. If a person, who makes an application for compensation, was present or represented before the Collector at the time, when the award was made, the <span class="hidden_text" id="span_13"> Patna High Court LPA No.140 of 2014 (9) dt.18-04-2014 14</span> application for reference has to be filed within six weeks from the date of the award. In a case, however, where the applicant was not present or was not represented before the Collector, at the time of making of the award, Section 18(2) provides that such an application for reference shall be made within six weeks from the date of receipt of the notice or within six months from the date of the Collector's award, whichever period shall first expire. | https://indiankanoon.org/doc/189543577/ |
18f362df360a-17 | Brij Kishore Paswan & Ors vs The State Of Bihar & Ors on 18 April, 2014 | 3. The Supreme Court, in Raja Harish Chandra Raj Singh v. Deputy Land Acquisition Officer [MANU/SC/0386/ 1961 : AIR 1961 SC 1500 : (1962) 1 SCR 676], having considered the legal character of an award, which the Collector in a proceeding under the Land Acquisition Act, 1894, makes, concluded to the effect that the determination of the amount of compensation by the Collector and making of the award is, in law, nothing more than an offer or tender of the compensation to the owner of the property acquisitioned. It was held, in Raja Harish Chandra Raj Singh (supra), that if the owner accepts the offer, no further proceeding is required to be taken. Consequently, the awarded sum has to be paid and the proceedings, for compensation, shall stand concluded. If, however, the owner does not accept the offer, Section 18 gives the owner, points out the Supreme Court, in Raja Harish Chandra Raj Singh (supra), statutory right of <span class="hidden_text" id="span_14"> Patna High Court LPA No.140 of 2014 (9) dt.18-04-2014 15</span> having the question of adequacy of compensation determined by the District Court and whatever amount is determined by the Court, as compensation, would be binding on the owner as well as the Collector. It has been further pointed out, in Raja Harish Chandra Raj Singh (supra), that where the reference is made or sought for, the amount, judicially determined by the Court, would be the compensation payable to the owner of the property acquired and, on such determination, the acquisition proceeding would stand concluded. | https://indiankanoon.org/doc/189543577/ |
18f362df360a-18 | Brij Kishore Paswan & Ors vs The State Of Bihar & Ors on 18 April, 2014 | 4. From the above scheme of land acquisition, it becomes abundantly clear that having accepted award without seeking a reference to be made by taking recourse to Section 18 of the Land Acquisition Act, 1894, a person cannot, thereafter, agitate that the compensation, which had been paid to him, was inadequate.
5. Had the appellants sought for a reference to be made under Section 18 of the Land Acquisition Act, 1894, and had such reference not been made, the appellants could have come to this Court by way of a writ petition under Article 226 of the Constitution of India, seeking issuance of a writ in the nature of mandamus commanding the Collector concerned to make a reference, as envisaged by Section 18 of the Land Acquisition Act, 1894. No such step has been taken by the appellants and, <span class="hidden_text" id="span_15"> Patna High Court LPA No.140 of 2014 (9) dt.18-04-2014 16</span> hence, the award given, in the present case, by the Collector stood finality.
6. In the backdrop of the law, which has been pointed out above, it becomes clear that in the case at hand, when the appellants had not sought for any reference to be made in terms of Section 18 of the Land Acquisition Act, 1894, and when the appellants had, thus, accepted the awarded sums, they could not have legally turned around and armed twisted the respondents to pay further sum or sums of money as compensation. | https://indiankanoon.org/doc/189543577/ |
18f362df360a-19 | Brij Kishore Paswan & Ors vs The State Of Bihar & Ors on 18 April, 2014 | 7. Notwithstanding the fact, that the appellants had no legal right to claim any further sum or sums of money, as compensation, the respondents concerned have, under duress, offered to make, as already discussed by my learned brother, Samarendra Pratap Singh, J., further sums of money as compensation, and, hence, it is, now, for the appellants to accept or not to accept the money, which has been offered to be paid to them by the respondents concerned.
8. I would like to further clarify that the sum of money, which the respondents concerned, has offered to pay subject to entering into an agreement, as indicated above, is nothing but a gratuitous payment and a Writ Court would not, therefore, force payment of such an amount unless the appellants enter into an agreement in <span class="hidden_text" id="span_16"> Patna High Court LPA No.140 of 2014 (9) dt.18-04-2014 17</span> terms of the offer, which has been made by the respondents concerned.
(I. A. Ansari, J.) KHAN/ ANAND/ NAFR | https://indiankanoon.org/doc/189543577/ |
aa71c92d23d8-0 | Amiri Lal Sah And Anrs vs The State Of Bihar & Ors on 26 June, 2014 | IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.19011 of 2013
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1. Amiri Lal Sah S/o Late Ayodhya Sah, resident of village - Basahiyan
Sheikh, P.O+P.S+ Anchal- Piprahi, District- Sheohar.
2. Jamiri Lal Sah S/o Late Ayodhya Sah, resident of village - Basahiyan
Sheikh, P.O+P.S+ Anchal- Piprahi, District- Sheohar. .... Petitioner/s | https://indiankanoon.org/doc/71207862/ |
aa71c92d23d8-1 | Amiri Lal Sah And Anrs vs The State Of Bihar & Ors on 26 June, 2014 | Versus
1. The State of Bihar, through the Principal Secretary, Land Reforms
Department, Government of Bihar, Patna.
2. The District Magistrate- cum- Collector, Sheohar.
3. The District Magistrate- cum- Collector, Muzaffarpur.
4. The District Land Acquisition Officer, Sheohar.
5. The District Land Acquisition Officer, Muzaffarpur.
6. The Special Land Acquisition Officer, Gandak Project, Muzaffarpur.
7. The Rehabilitation Officer, Bagmati Project, Sitamarhi.
8. The Sub-Divisional Officer, Sheohar.
9. The Anchal Adhikari, Piprahi Anchal, District- Sheohar.
10. The Anchal Adhikari, Purnahiya Anchal, District- Sheohar.
.... .... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Ritesh Kumar Narain Singh
For the Respondent/s : Mr. Yogendra Pd. Sinha
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CORAM: HONOURABLE MR. JUSTICE SHIVAJI PANDEY
ORAL ORDER5 26-06-2014 Heard learned counsel for the petitioners and learned counsel for the State.
In this case, petitioners are claiming to be owners of the raiyati land, details of the same are as follows:-
Khata Khesra Area
No. No.
A.D.
Village Basahiya 809 218 0.23 | https://indiankanoon.org/doc/71207862/ |