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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE CIVIL JURISDICTION
FIRST APPEAL NO. 1119 OF 1997
IN
L. A. R. NO. 158 OF 1989
The State of Maharashtra )
(Through the Special Land Acquisition Officer, )
Metro Centre No.4, Panvel ).. Appellant
(Vaitarna Hydro Electric Project , Nasik is deleted and
substituted by Metro Centre No.4, Panvel by order dated 10th
July, 2009 (Coram: Swatanter Kumar,C.J. & A.P.Deshpande, J.)
Versus
Shri Ashok Laxman Wani )
R/o Padaghe, Taluka Panvel, District Raigad ).. Respondent
ALONG WITH
FIRST APPEAL NO. 867 OF 1997
Ashok Laxman Wani ).. Appellant
Versus
Special Land Acquisition Officer, Metro )
Centre No.4, Panvel and another ).. Respondents
ALONG WITH
FIRST APPEAL NOS. 1199 OF 1996, 829, 866, 1118, 1120 OF
1997, 98/2000, 1510, 1511, 1512, 1513 OF 2006, 2051, 2052,
2053, 2054, 2055, 2056, 2057, 2058, 2059, 2060, 2061, 2062
OF 2007, 402, 403, 404 OF 2008,
ALONG WITH
CROSS OBJECTIONS (STAMP) NOS. 5817, 5818, 5819, 5826,
5828, 7415, 7416, 7417, 7419, 7421, 7423, 7424, 7426,
7427, 8203 OF 2008
AND
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CIVIL APPLICATION NOS. 7209 OF 1997, 2565, 2566, 3441,
3481, 3482, 3483 of 2004 , 2677 OF 2006, 3421, 3783, 3784
OF 2007, 1980, 1981, 1982, 1983, 1984, 1985, 1986, 1987,
1988, 1989, 1990, 1991, 1992, 3476, 3477, 3478, 3479, 3480,
3481, 3482, 3483, 3682, 3683, 3684, 3685 OF 2008
(C.A. Nos. 3484/2004 & 3784/2008 deleted and C.A. Nos.
3783/2007 and 1992/2008 added by order dated 10th July,
2009 (Coram: Swatanter Kumar,C.J. & A.P.Deshpande, J.)
Mrs G P Mulekar, Assistant Government Pleader, for the State.
Mr R V Pai with Mr S S Kulkarni for the Respondent-Claimant
and
Cross-Objectionists.
Mr S G Surana for the Appellants-Claimants in F.A. Nos.1510 to
1513
of 2006.
CORAM: SWATANTER KUMAR, C.J. AND
A. P. DESHPANDE, J.
JUDGMENT RESERVED ON : 16TH JULY 2008
JUDGMENT PRONOUNCED ON : 31ST JULY 2008
JUDGMENT : (PER SWATANTER KUMAR, C.J.)
Common, but, question of some significance in law
arises for consideration of the court in all these Appeals.
Despite liberal construction of application of law of
amendment in Appeals before the Court of competent
jurisdiction, we are called upon to determine the issue, as to
whether the provisions of Order 6 Rule 17 of the Code of
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Civil Procedure, 1908 are applicable to the proceedings
including the Appeal proceedings arising under the Land
Acquisition Act, 1894 and if the answer is in the affirmative,
what is the scope and limitation of such application. To
examine various facets of this, reference to the facts giving
rise to these Appeals would be necessary.
2.
Vide its judgments dated 4th May 1996, 17th January
1997, 22nd August 2005 and 29th August 2005, the Joint
District Judge, Raigad at Alibaug, answered 23 Land
References made to it by the Collector under Section 18 of the
Act. Aggrieved from the enhancement granted under the
impugned judgments, the State filed present Appeals for
reduction of the compensation awarded, while the Claimants
being dissatisfied from the compensation awarded to them by
the learned Court, have come before this Court for
enhancement of compensation.
3. Government of Maharashtra issued a Notification
under Section 4 of the Act on 24th September 1986 proposing
to acquire huge chunk of land from revenue estate of Village
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Padaghe, Taluka Panvel, District Raigad for a public purpose,
namely, New Bombay Project. Declaration under Section 6
was issued on 10th May 1987. The SLAO exercising the
powers of the Collector made and published his Award under
Section 11 of the Act on 18th September 1989 awarding
compensation to the Claimants at the rate of Rs.4/- per sq.
mtr. The Claimants appeared to have accepted the
compensation without prejudice and filed References under
Section 18 of the Act claiming compensation at the rate of Rs.
50/- per sq. mtr. which was subsequently amended to Rs.
500/- per sq. mtr. These claim petitions, presented before the
S.L.A.O. on 8th November 1989, were referred to the
Reference Court by the Collector on 29th November 1989. The
parties produced documentary and oral evidence before the
Reference Court. The Reference Court pronounced its
judgments and answered the Reference in L A R Nos.158 of
1989, 145 of 1989, 147 of 1989 and 148 of 1989 on 4th May
1996 enhancing the compensation payable to the Claimants
at the rate of Rs.160/- per sq. mtr. While awarding this
compensation to the Claimants, the Reference Court primarily
relied upon the report of the Valuer which was prepared by
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Economist of CIDCO, Exhibit 53, and calculated the cost of the
land in proportion to the cost of project. While relying upon
the cost in the area of steel market which was developed as
Kalamboli. The Valuer arrived the price of the developed plot
was fixed at Rs.475/- per sq. mtr. It also noticed the fact that
the price of the developed land in the year 1986-87 was about
Rs.346/- per sq. mtr. Reliance was also placed upon the land
sold by CIDCO and MIDC.
ig After the appreciation of this
evidence, the Reference Court awarded the compensation
taking it to be the just and fair market value of the land
prevalent at the relevant time i.e. as on 24th September 1986.
4. In all, 23 References were answered by the
Reference Court. Against the judgment of the Reference
Court, 19 Appeals have been preferred by the State praying
for reduction of compensation and/or restoration of the
Collector’s Award, while in 15 State Appeals the Claimants
have filed Cross-Objections claiming enhancement of the
awarded amount. The Claimants have also filed 8 Appeals
claiming the same relief. During the pendency of these
proceedings, 19 Civil Applications have been filed by the
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Claimants for amendment either in their respective Appeals or
in the Cross-Objections filed by them primarily praying for
substituting the amount of Rs.500/- per sq. mtr. claimed by
them on account of compensation for acquisition of their
lands to Rs.5000/- per sq. mtr. Furthermore, 10 Civil
Applications also have been filed by the Claimants in some of
the Appeals/Cross Objections seeking leave of the Court to
place additional documents, i.e Exhibits “A” to “D” to their
respective applications, on record. These documents are (i)
the judgment of the court in the case of State of Maharashtra
vs. Trimbak J. Thakur, 2008 (1) AIR Bombay Reporter 196
(First Appeal No.646 of 1995 decided on 21st June
2007); (ii) plan showing acquired land and its surrounding
areas prepared on the basis of the visit of the Architect on
24th March 2008; (iii) letter of allotment dated 16th October
1984 allotting the land for a weight bridge in truck terminal at
Kalamboli; and (iv) letter dated 18th August 1997 allotting land
for shopping-cum-residential use.. It may also be mentioned
that in some of the cases, a common prayer has been made
for amendment and for leading additional evidence limited to
placing the judgment in Trimbak Thakur (supra) on record.
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5. Civil Application Nos. 2677 of 2006, 3421 of 2007,
3784 of 2007 and 3783 and 3784 of 2008 are for bringing the
legal representatives of the deceased Claimants/ Respondents
on record. There is a delay in filing the Applications. The
Applicants have also prayed for setting aside the abatement.
There is no objection. Delay in filing the Civil Applications is
condoned. Abatement is set aside. There is no opposition to
the Civil Applications for bringing the legal representatives on
record and consequently they are allowed. The legal
representatives of the deceased Respondents/ Claimants
would be entitled to the benefit of this order in accordance
with law and subject to just exceptions. These Civil
Application are accordingly disposed of.
6. Civil Application No. 7209 of 2007 has been filed by
the State for praying for stay of the judgment and award of
the learned Reference Court. As the main judgment in the
Appeal itself is being pronounced, this Civil Application does
not survive for consideration and is accordingly disposed of.
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Scheme of the Act in relation to matters in controversy
in the present Appeals.
7. Let us first examine the relevant provisions and
scheme of the Land Acquisition Act. A Notification under
Section 4 of the Act is commences a definite step towards
acquisition proceedings which in its nature and substance is
compulsory acquisition proceedings. After following the
prescribed procedure under Sections 5A, 6 and 9 of the Act,
the Collector exercises his powers to conduct complete
enquiry and makes an Award under Section 11 of the Act. The
enquiry by the Collector as contemplated under Section 11,
relates to measurements, value, claims and all other ancillary
matters thereto. The Award so made by the Collector attains
a status of finality and is status of conclusive evidence
between the Collector and the persons interested of true area
and value of the land and apportionment of compensation
amongst the interested persons in terms of Section 12 of the
Act. In determining the amount of compensation, the Court is
to be guided by provisions contained in Sections 23 and 24 of
the Act except to the extent of making a correction of clerical
errors under the scope of Section 13A of the Act. Once the
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Collector forwards the application under Section 18 to the
Reference Court for determination, becomes functus officio in
regard to acquisition proceedings in so far as his power and
authority under Part II of the Act is concerned.
8. Part III of the Act deals with reference to the Court,
procedure to be followed thereupon, and rights of interested
persons under Section 18 of the Act who has not accepted the
Award or accepted it without prejudice to his rights enabling
him to move an application to the Collector with the matter or
reference by the Collector for determination of the Court, his
objections as to measurement of land, amount of
compensation and the person to whom it is payable or
apportionment of such compensation amongst the interested
persons. In other words, in an application under Section 18(1)
of the Act, the Applicant is expected to raise a challenge to the
awarded compensation by the Collector in his Award under
Section 11 of the Act and in terms of Section 18(2) of the Act,
the application shall state the grounds on which the objection
to the Award is being taken. In other words, application
under Section 18 is not a mere formality but is exercise of a
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substantive legal right in the manner specified in the
provisions.
9. Once the provisions of law states how a right is to be
exercised, then the right should normally be exercised in that
manner alone and no other. The expression “shall” has been
cautiously used by the Legislature which indicates its intent
that the application should state grounds on which objection
or exception to the Award is being taken. It is expected of the
Applicant to be aware of what was the value of his land at the
time of issuance of the Notification under Section 4 of the Act
as that date alone is relevant for determining compensation
payable to the Claimants. He is at liberty to raise all factual
and legal objections. This is a reference by the Collector to
the Court of competent jurisdiction and proceedings of
reference are expected to be carried out in accordance with
law. Proviso to Section 18(2) spells out a limitation within
which the application contemplated under Section 18 of the
Act is to be filed. The period of limitation depending on the
facts of a given case would be six weeks to six months. Six
months being the outer case limit, in either of the events,
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where the Applicant was present before the Collector at the
time when the Award was made or where he was served with
a notice under sub-section (2) of Section 12 of the Act. This
specific period of limitation is mandatory and is not flexible
either in its term or by any enunciated principles of necessary
implication. In fact, this legal issue is no more res integra and
stands finally settled by the judgment of the Supreme Court in
the case of Mahadeo B. Patil vs. State of Maharashtra, 2006
Mh. L. J. SC 206, where referring to Raja Harish Chandra Raj
Singh vs Dy. Land Acquisition Officer, AIR 1961 SC 1500 and
State of Punjab vs Satinder Bir Singh, (1995) 3 SCC 330, the
Court held as under :-
” 14. We are here not concerned with the
correctness of the decision, but the fact
remains that having considered the claim of
the appellant for compensation, the Special
Land Acquisition Officer rejected the claim.
This does amount to the making of an award,commonly described as “nil award”. If the
appellant was aggrieved by such an award, it
was open to him to seek reference under
section 18 of the Act which the appellant
actually did. We, therefore, cannot hold that
no award as envisaged by section 11 of the
Act was declared on 29/8/1994, since the
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manner in which the compensation was
computed. Since, the application under
section 18 was not filed within six weeks of
the receipt of notice under section 12(2) ofthe Act, the High Court did not commit any
error in holding that the application was
barred by limitation. It was not disputed
before us that the Land Acquisition Officermaking a reference, or the Court considering
a reference under section 18 of the Act has
no power of condonation of delay in making
an application under the aforesaid section.”
10.
Even a Division Bench of this Court while following
the above principles, held in the case of The State of
Maharashtra vs. Sadashiv Ganpat Avhad and others, First
Appeal No.251 of 1996, decided on 31st January 2008, as
under :-
” 18. We are unable to find any merit in the
contention raised on behalf of the claimants.
It is neither disputed before us nor was
disputed before any other for a that in the
applications filed by the claimants underSection 18 of the Acquisition Act they had
categorically and specifically admitted that
they had received the notices under Section
12(2) of the Acquisition Act on 31.3.1986.
The applications under Section 18 of the
Acquisition Act are dated 5th June, 1986. No
purpose would be served by remanding the
matter to the Reference court inasmuch as
the claimants cannot be permitted to go
back from their admission of receipt of a
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statutory notice. Furthermore, it is not for
any other purpose that the dates were
mentioned in the application. The applicants
were fully aware that they are filing
applications under Section 18 of the
Acquisition Act and had already received the
notices under Section 12(2) of the
Acquisition Act. These applications are
signed by the applicants and that fact is also
not in dispute. That being so, it is not
necessary for us to set aside the judgments
of the Reference Court and remand the
matters to that Court. It is settled principle of
law which in fact was not even disputed
before us that the Collector and for that
matter any other Court has no power to
condone the delay in filing an application
under Section 18 of the Acquisition Act. That
being the settled position of law, again it will
be futile for the Courts to accept the
contentions raised on behalf of the claimants
for remanding the matter to the Court of the
learned Joint District Judge. ….
19. In the light of the enunciated
principles and the documents available on
record before us, it is not required of this
Court to remand the matter to the learned
Joint District Judge. The reference
applications have thus been erroneously
decided by the learned Joint District Judge,
in fact, under a mistaken impression of fact
and law both. All the above appeals of the
State thus necessarily should be allowed and
we hereby allow the same, set aside the
judgment of the reference Court in favour of
the appellants in the above noticed appeals,
while leaving the parties to bear their own
costs.”
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11. From the above analysis of the above settled
principles of law, it is clear that the limitation prescribed under
Section 18 of the Act is inflexible, uncondonable and is
capable of rigid interpretation. Its effect on the merits of the
case, we shall proceed to discuss shortly.
12.
The requirement of law is that in a application under
Section 18 of the Act, the Claimant should state the grounds
on which objection to the Award is taken and it should be
comprehensive enough to require the Applicant to state with
exactitude what compensation he desires to receive as a
result of disposal of his objection and particularly what is the
deficiency in amount of compensation awarded to him, guided
by the requirement of determination of compensation under
Sections 23 and 24 of the Act. This view would find support
from the language of Section 19 of the Act where the Collector
while making a reference has to provide information to the
Court in writing, amongst others, stating the details of land,
names of persons interested, amount awarded and particularly
give the grounds on which the amount of compensation was
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determined if whether the objections raised by the applicant
relating to deficiency or otherwise of the amount of
compensation determined. The language of these two
provisions clearly indicate that the requirement is not a mere
formality or expects the applicant to make vague averments.
The applicant as well as the Collector is expected to adhere to
the requirements of law in this regard.
13. The Claimants get two opportunities before the
Collector to clearly state the amount of compensation which
they actually claim for acquisition of their respective lands.
They are within their rights to lead such evidence and raise
such objection in regard to measurement, valuation or
otherwise in pursuance to the notice issued under Section 9
and prior to passing of an Award under Section 11 of the Act.
The Collector is to form a distinct opinion as to what
compensation, in his opinion, should be allowed for the land
acquired, where after he has to send such an Award for
approval to the appropriate Government and then alone would
make the Award public. Secondly, after the pronouncement of
the Award, while making an application under Section 18 of
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the Act, the Claimants can state the amount which they wish
to claim while raising an objection with regard to quantum of
compensation awarded to them and the grounds in support
thereof that too within the period of limitation prescribed
under those provisions. Once that stage is over, the Claimants
would be bound by the amount stated by them in their
reference application. In the scheme, the legal provisions, it
appears to us that the Claimants may not be bound by their
admission made in response to Section 9 notice in regard to
quantum of compensation claimed in an application under
Section 18 of the Act.
14. Section 25 of the Act places an obligation upon the
Reference Court that it cannot award an amount less than the
amount awarded by the Collector. In other words, so to say,
the Award made by the Collector is final in absolute terms vis-
a-vis the Government and Court can only enhance it to the
extent of the amount claimed by the Claimants in the
reference petition under Section 18 of the Act. The Award so
made by the Court in its judgment would then become a
decree within the meaning of Section 2 clause (2) and Section
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2 clause (9) of the Code of Civil Procedure.
15. By the Act of 68 of 1984, Section 25 of the Act was
amended with effect from 24th September 1984. The
unamended provisions of Section 25 placed an embargo upon
the authority of the Court to award excess compensation to
the amount awarded by the Collector, in some cases. It
provides that when an applicant has made a claim for
compensation pursuant to any notice given under Section 9,
then the amount awarded to him by the Court shall not exceed
the amount so claimed or be less than amount awarded by the
Collector under Section 11 of the Act. Secondly, when the
applicant has refused to make any such claim or has omitted
without sufficient reason to make any such claim, the amount
awarded by the Court shall not exceed the amount awarded
by the Collector. Still further, when the applicant has omitted
for sufficient reason to make such a claim, the amount
awarded by the Court shall not be less than the amount
awarded by the Collector. All these three stages were
relatable to the claim made by the Claimant in furtherance to
a notice under Section 9 of the Act. The purpose was not to
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grant amount higher than the amount awarded by the
Collector except in one case where it could exceed the amount
awarded by the Collector.
16. By amendment of Section 25, the restriction placed
upon the power of the Court to award limited compensation
has been removed. Thus, determination of compensation in
excess of the amount awarded under Section 11 award is
permissible. What amount is now claimed by the Claimants
for acquisition of their lands may be much in excess to the
amount claimed by them before the Collector in response to
the notice issued under Section 9 and the Court can award an
amount in excess thereof. However, the extent of claim
obviously would be controlled by the amount stated by the
Claimants in their reference petition under Section 18 of the
Act. The proceedings before the Court are initiated by virtue
of a reference made under Section 18 of the Act, as a
reference proceedings. The Claimants have no right to
commence the proceedings before the Reference Court
directly on their own within the ambit and scope of Section 18
of the Act. The Collector is expected to comply with the
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requirements of Section 19 before he forwards a reference
while ensuring that the reference has been filed within the
prescribed period of limitation and thus satisfying the
requirements of provisions of Section 18(1) of the Act. The
Scheme of the Act appears to be that the Claimant would be
bound by the amount claimed in his Reference Petition, it
being remedy of limited jurisdiction and being initiable only
upon a reference in accordance with law. There may be cases
where the Claimants have not been able to take advantage of
this channel of legal remedy and could not file References
under Section 18 of the Act, in that event they could take
recourse to the proceedings under Section 28A of the Act
praying before the Court for re-determination of the
compensation. In terms of Section 28A, where the Court
allows to an applicant any amount of compensation in excess
of the amount awarded by the Collector under Section 11, the
persons interested in all the other land covered by the same
Notification under Section 4, sub-section (1) and who are also
aggrieved by the award of the Collector may, notwithstanding
that they have not made an application to the Collector under
Section 18, by written application within three months from
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the date of the Award of the Court, claim that amount upon re-
determination.
17. Section 28A thus was introduced in the Statute book
to provide a kind of alternative remedy and an opportunity to
all aggrieved parties whose lands have been acquired by the
same Notification even if they were not able to invoke the
remedy of Section 18 and where one or more persons relating
to some Notification of acquisition of same lands have
received higher compensation by award of the Court. It
introduces a kind of an election of remedy by a party, may be
out of necessity, mistake or compulsion. Though, these two
independent legal remedies are available to a claimant, but
are completely distinct and different remedies. One can be
invoked when award under section 11 is made by the Collector
with reference to the provisions of sections 18 and 19 of the
Act,while in the other, after award under section 11 has
merged into an order of the court and court awards higher
compensation, the claimants who had not taken recourse to
the proceedings under section 18 would directly approach the
Collector for redetermination of the compensation in terms of
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section 28A of the Act while relying upon the judgment of the
court. However, in both events, the law specifies the
limitations within which the respective remedies can be
invoked.
18. The claimant could even lawfully elect not to take
recourse to the legal remedy available to him under section 18
of the Act and await till the judgment of the court of
competent jurisdiction enhancing the amount of compensation
awarded by the Collector in relation to same Notification and
in the case of similarly situated persons. Thus, the law is tilted
in favour of the Claimants, and offers them protection even
without entering into prolonged litigation of the proceedings
under section 18, they could directly take recourse to the
provisions of section 28A in accordance with law. But having
once taken recourse to the provisions under section 18, they
are bound by the results and cannot, in law, alter that petition
in regard to amount of compensation after the period
prescribed is over.
19. Once the proceedings before the Court of competent
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jurisdiction are commenced either by way of a reference or
under Section 28A, the provisions of the Code of Civil
Procedure are applicable to those proceedings in so far as
they are not inconsistent with the provisions of the Act in
terms of Section 53 of the Act. Two prominent expressions in
Section 53 are “save in so as far as they may be inconsistent
with anything contained in this Act” and “the provisions of the
Code of Civil Procedure shall apply to all proceedings before
the Court under this Act”. The provisions of Section 53 of the
Act are applicable to proceedings before the Court and not the
Collector. The provisions of the Civil Procedure Code therefore
would be applicable to the proceedings before the Court under
the Act i.e. in proceedings taken by the Court in furtherance to
the reference made by the Collector under Sections 18 and 19
or the proceedings initiated by the Claimants under Section
28A of the Act. Another limitation of the application is that
such provisions of the Civil Procedure Code should not be
inconsistent with the provisions of the Act. Even to the
proceedings in Appeal before the Court, the provisions should
be applicable as to the Appeals from original decrees and
Section 54 of the Act states that to which Court further an
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Appeal would lie.
Applicability of provisions of Order 6 Rule 17 read with
Order 41 Rule 3 of the Code of Civil Procedure.
20. The law relating to amendment of pleadings had been
construed quite liberally and noticing its impact on
administration of justice and inevitable delays in conclusion of
the proceedings, the Legislature by Code of Civil Procedure
(Amendment) Act 2002 amended Rule 17 of Order 6 with
effect from 1st July 2002. Amended Order 6 Rule 17 reads as
under :-
” 17. Amendment of pleadings – The
Court may at any stage of the proceedings
allow either party to alter or amend hispleadings in such manner and on such terms
as may be just, and all such amendments
shall be made as may be necessary for the
purpose of determining the real questions in
controversy between the parties.;
Provided that no application for
amendment shall be allowed after the trial
has commenced, unless the Court comes to
the conclusion that in spite of due diligence,
the party could not have raised the matter
before the commencement of trial.”
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21. The language of the amended Rule was quite distinct
and intended to limit the scope for dealing with the
applications for amendment as is obvious from the following
language of unamended Rule 17 :-
” 17. Amendment of pleadings – The
Court may at any stage of the proceedings
allow either party to alter or amend hispleadings in such manner and on such terms
as may be just, and all such amendmentsshall be made as may be necessary for the
purpose of determining the real questions in
controversy between the parties.”
22. Still the Court even under the amended provisions,
has been vested with very wide powers and may allow either
party to alter or amend his pleadings at any stage. The
amendments have to be made which are necessary for the
purpose of determining real question between the parties.
However, it is obligatory upon the Court to examine that no
application for amendment should be allowed after the trial
has commenced unless the Court arrives at the conclusion
that the party claiming amendment, despite due diligence,
could not have raised the matter before the commencement
of the trial. This obviously is intended to prevent, firstly,
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carrying out of unnecessary or casual amendments by the
parties intended to delay the proceedings and, secondly, after
commencement of the trial, additional burden is placed upon
the applicant seeking amendment to satisfy the Court with
regard to above requirements. While amending these
provisions, the Legislature also amended Rule 18 of Order 6 to
ensure that the amendments allowed by the Court are carried
out within the granted time and where no time was granted by
the Court, within fourteen days from the date of the order
where after the parties shall not be permitted to amend the
pleadings unless again a specific order of extension is passed
by the Court.
23. The object of the amendments is to achieve
expeditious disposal of cases and to ensure that law relating
to amendments is not abused by a party to the proceedings.
Wherever an amendment is permitted by the Court after
recording its satisfaction in accordance with these provisions,
the same may be carried out within the specified time. The
provisions of Order 6 Rule 17 are applicable to appeals as well.
A party would be entitled to make an application for
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amendment of his pleading in accordance with law and subject
to satisfaction of the prescribed conditions. Under the
unamended as well as the amended law, the principle has not
changed that the amendments which are forbidden by law or
would be impermissible in face of provisions of the limitation,
need not be allowed. The applicability of these provisions of
the Code to the proceedings pending before the Court while
exercising the powers of the provisions of the Act and its
extent has been subject matter of some legal controversy in
the past.
24. The learned Counsel appearing for the Claimants-
Applicants while relying upon the judgments of the Supreme
Court in the case of Harcharan vs. State of Haryana, (1982) 2
SCC 408, Bhag Singh and others vs. Union Territory of
Chandigarh, (1985) 3 SCC 737, Ghaziabad Development
Authority vs Anoop Singh and another, (2003) 2 SCC 484,
and a Single Judge judgment of this Court in First Appeal No.
700 of 1989 (State of Maharashtra vs Sitaram B. Bhoir) on 14th
March 2008, to argue that the Claimants are entitled to amend
their pleadings in the appeal in relation to factual matrix as
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well as enhancing the claim of compensation made by them in
their Petition under Section 18 of the Act before the Collector.
It is argued that the amendment is bona fide and is based
upon the fact that judgments have been delivered by the
Court in different cases and CIDCO for whose benefits the
lands were acquired have been selling land at the rate of Rs.
10,000/- per sq. mt. and above and as such they desire to
amend their claim and they wanted to increase the claim from
Rs.500/- per sq. mtr. to Rs.5000/- per sq. mtr.
25. While relying upon the case of Harcharan (supra),
emphasis is laid where the Supreme Court considered the
question that because of delay of six years, the amendment
could be disallowed and while referring to the principle of
procedural law it is intended to facilitate and not to obstruct
the course of substantive justice the amendments sought
were allowed.
26. In Bhag Singh (supra), the Supreme Court had
examined the necessity for requiring the State to do what is
fair and just to citizen and the compensation for acquisition of
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the land of the claimants should be paid on the basis of the
market value of the land determinable at the time of
acquisition.
27. In Ghaziabad Development Authority (supra), the
Supreme Court held as under :-
“7. As in the above case, in the instant
case too, the award was passed by the LandAcquisition Officer and the Reference Court
earlier to the effective date of substitution of
Section 25. Hence, the limitation on the powerof the court to award compensation as enjoined
by the pre-amended section would be
attracted. However, there is a formidable
impediment for the appellant to take shelterunder the pre-existing Section 25. On a
petition filed by the claimant, the applicationdated 11/7/1967 wherein compensation was
claimed at Rs 20 per square yard was allowed
to be amended by an order of the ReferenceCourt passed in the year 1983. It is to be noted
that by virtue of Section 53 of the Land
Acquisition Act, the provisions of the Code of
Civil Procedure shall apply to all proceedings
before the court unless they are inconsistentwith anything contained in the Act. In the light
of this provision, the High Court rightly held
that there is no bar under the Land Acquisition
Act to file a petition for amendment of the
claim application in regard to the quantum of
compensation claimed as there is no provision
in the Land Acquisition Act which is
inconsistent with the power to allow
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by Rs 100 per square yard. When once this
amendment is recognized and taken note of, it
is obvious that the bar under Section 25 does
not get attracted. Whether this amendmentcould have been permitted in the face of the
unamended Section 25 has not been put in
issue before the High Court in specific terms.
Even in the SLP we found, in vain, any groundquestioning the order allowing the amendment.
No doubt, a party has right to challenge a non-
appealable order in an appeal against the
decree as laid down in Rule 1-A of Order 43.
But, the fact remains that the legality or
propriety of the order permitting amendmentwas neither specifically challenged before the
High Court nor a specific ground taken that it
was contrary to Section 25. At this stage, theappellant cannot be permitted to assail the
correctness of the order permitting
amendment. If that be so, the first contention
based on the pre-existing Section 25 has to benecessarily rejected.”
The above dictum of the Supreme Court has been heavily
relied upon by the Applicants-Claimants.
28. The learned Counsel for the Claimants while referring
to these judgments and emphasizing that the provisions of
Section 18 do not contemplate any specific claim being raised
by the applicant argued that mere protest would suffice the
compliance of provisions of Section 18 and ultimately
submitted that the application for amendment of the claim for
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market value, the Court has unrestricted powers and
provisions of Section 18(2) of the Act do not in any way affect
grant of such application and prayed for allowing the
amendment.
29. It was argued on behalf of the State that all the above
judgments of the Supreme Court do not lay down any ratio
decidendi which would be applicable as a legal precedent to
be applied uniformly in relation to law of amendment to the
proceedings under the Land Acquisition Act. According to her,
the Supreme Court has repeatedly rejected the request of the
Claimants in the cases before it for receiving higher
compensation by paying additional Court fee. Reliance in this
regard has been placed upon the case of M. Govinda Raju and
another vs Special Land Additional Land Acquisition Officer
and another, (1996) 5 SCC 547. Reliance was also placed
upon the judgment of the Supreme Court in the case of
Scheduled Caste Co-op. Land Owning Society Ltd. vs Union of
India, (1991) 1 SCC 174, where the Court took the view that
redetermination of compensation under Section 28(1) is not
applicable where the Claimant has sought and secured a
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reference under Section 18 and has even preferred Appeal
before the High Court. Further, the Court also took the view
that the Applicants were not entitled to claim higher
compensation after a considerable delay by paying the Court
fee as the society had restricted its claim to Rupees Four lakhs
and against the order of the learned Single Judge, no further
remedy was availed.
30. This was again followed by a judgment of the
Constitution Bench of the Supreme Court in the case of Buta
Singh (dead) byLRs vs Union of India, (1995) 5 SCC 283,
where the Court held as under :-
“… we are of the opinion that the decision
rendered by a two-Judge Bench in the case
of Chand Kaur had failed to notice the
decisions rendered subsequent to the
decision in the case of Bhag Singh, inparticularly the decision in the case of
Scheduled Caste Coop. Land Owning Society
Ltd.” which explained the earlier two
decisions. It is, therefore, obvious that the
decision rendered in the case of Chand Kaur
is per incuriam, inasmuch as, the attention
of the Bench was not invited to a three-Judge
Bench decision in the case of Scheduled
Caste Coop. Land Owning Society Ltd. which
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Kaur case, thus being per incuriam, does not
in fact consciously differ from the decision in
the case of Scheduled Caste Coop. Land
Owning Society Ltd.. We, therefore, put thematter beyond the pale of doubt by stating
that the law as laid down in the decision in
Scheduled Caste Coop. Land Owning Society
Ltd. is correct and should hold the field; weapprove of it and, therefore, the subsequent
decision in the case of Chand Kaur to the
extent it conflicts with the view taken in that
case cannot be said to be laying down thecorrect law. We dispose of the reference to
this Bench accordingly and the matter willnow go back to the appropriate Bench for
disposal in accordance with law laid down in
Scheduled Caste Coop. Land Owning SocietyLtd., hereby affirmed and approved by us.”
31. It is contended on behalf of the State that the
Ghaziabad Development Authority (supra) case does not
enunciate the relevant principles of law, after appropriate
discussion which could be applied as good precedent of law to
a subsequent case, as it primarily discussed the effect of
amendment of Section 25 on the claim petitions. To buttress
the submission on behalf of the State, further argued that the
applications which are barred by time for amendment should
not be allowed and in this regard reliance was placed on the
case of Dattaram V. Dharwadkar and another vs Ghanashyam
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G. Bhende and another, 2003 (1) Mh. L. J. 43, and judgment
of the Supreme Court in the case of T.N. Alloy Foundry Co. Ltd.
vs T.N. Electricity Board and other, (2004) 3 SCC 392, where
the Court reiterated with approval the principles in L.J. Leach
and Co. Ltd. vs Jardine Skinner and Co., AIR 1957 SC 357,
that in case the claims which are barred by limitation on the
date of the application, the Court would as a rule decline such
amendment.
32. The law of limitation would have a limited application
to the cases under the provisions of the Land Acquisition Act
inasmuch as to permit amendment of pleadings as a matter of
routine may result in great prejudice to either of the parties
and may even be against specific provisions of law. In the
above-referred judgments of the Supreme Court, it is not
stated as an absolute proposition of law that amendment of
petition filed under Section 18 of the Act can be permitted as a
matter of course. Further, with respect, we are unable to
contribute to the view expressed by the learned Single Judge
of this Court in the case of Sitaram B Bhoir (supra) and
Scheduled Caste Co-op. Land Owning Society Ltd. (supra), as it
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does not appear to be correct exposition of law. It is not really
necessary for us to examine the judgment relied upon by the
Claimants in the present case as they have been discussed in
great elaboration by the Supreme Court itself in the case of
Union of India vs Pramod Gupta and others, (2005) 12 SCC 1,
where the Court examined all these cases and enunciated the
law under the heading `amendment of reference and
additional evidence’. The relevant part of the judgment reads
as under :-
“132. We have noticed hereinbefore that
before the Land Acquisition Collector therespondents had claimed only a sum of Rs
12,000 per bigha. Despite the same therespondents filed an application purported to
be under Order 6 Rule 17 of the Code of Civil
Procedure praying for amendment of thememo of appeal and the reference claiming
higher compensation. The respondents appear
to have further filed applications under Order
41 Rule 27 of the Code for adduction of
additional evidence in support of theiramended claim. The High Court while rejecting
the claim application filed by the appellants
allowed the application for amendment as also
the application for adduction of additional
evidence filed by the respondents.
133. Mr Salve submitted that the bar under
Section 25 of the Act must be considered
having regard to Section 53 thereof which
provides for applicability of the provisions of
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the Code of Civil Procedure. The learned
counsel urged that the respondents had
already filed an application for amendment of
the memo of appeal in terms of Order 41 Rule
3 of the Code of Civil Procedure, which having
been allowed, would amount to amendment of
the claim application in the reference case
itself. Strong reliance in this behalf has been
placed on Harcharan v State of Haryana and
Ghaziabad Development Authority v Anoop
Singh.
134. We do not agree. The pleadings
before the trial court are the basis for
adduction of evidence either before the trial
court or before the appellate court. By
amending the memo of appeal the original
pleadings cannot be amended. The
respondent claimants made their claim before
the Reference Court claiming compensation for
the lands acquired under two different
references at a certain rate. They are bound
by the said pleadings. Section 53 merely
provides for applicability of the provisions of
the Code of Civil Procedure including the one
containing Order 6 Rule 17 thereof. Order 6
Rule 17 of the Code of Civil Procedure
postulates amendment of pleadings at any
stage of the proceedings. Before an
amendment can be carried out in terms of
Order 6 Rule 17 of the Code of Civil Procedure
the court is required to apply its mind on
several factors including viz whether by reason
of such amendment the claimant intends to
resile from an express admission made by him.
In such an event the application for
amendment may not be allowed. (See Modi
Spg. & Wvg. Mills Co. Ltd. v Ladha Ram & Co,
Heeralal v Kalyan Mal and Sangramsinh P.
Gaekwad v Shantadevi P Gaekwad).
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135. Delay and laches on the part of the
parties to the proceedings would also be a
relevant factor for allowing or disallowing an
application for amendment of the pleadings.
The High Court neither assigned sufficient or
cogent reasons nor applied its mind as regards
the relevant factors while allowing the said
application for amendment. It has also not
been taken into consideration that the
application for amendment of pleadings might
not have been maintainable in view of
statutory interdict contained in sub-section (2)
of Section 25 of the Act, if the same was
applicable.
136. In Anoop Singh whereupon reliance
has been placed by Mr Salve, the Division
Bench of this Court did not have any occasion
to consider that decisions of this Court in Krishi
Utpadan Mandi Samiti v Kanhaiya Lal and B.V.
Reddy which, it will bear repetition to state,
are authorities for the proposition that once it
is held that Section 25(2) of the Act would be
attracted in a given case, the parties are
estopped and precluded from claiming any
amount higher than that claimed in their claim
petition before the Collector. An observation
made to the effect that an application under
Order 6 Rule 17 would be maintainable having
regard to Section 53 of the Act, with utmost
respect, does not constitute a binding
precedent. No ratio has been laid down
therein and the observations made therein are
without any discussion. Furthermore no
reason has been assigned in support of the
said proposition of law.
137. In Harcharan also this Court did not
address the question as to whether Order 6
Rule 17 would be applicable in relation to the
original claim petition or memo or appeal.”
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33. The amendment of Memorandum of Appeal has to be
understood in complete distinction to amendment of
Reference Petition under Section 18 of the Act. The Petition
filed before the Collector is in compliance of a statutory
provision and can only be filed within the prescribed period of
limitation. The provisions of Order 6 Rule 17 of the Code of
Civil Procedure would have no application to the proceedings
before the Collector even with the aid of Section 53 of the
Land Acquisition Act and Collector does not act as a Court
within the meaning of Section 3(d) of the Act. In other words,
there will be no occasion for an applicant to amend his
application under Section 18 of the Act particularly when the
period of limitation specified under Section 18(2) is over. It is
a settled principle of law that the Collector empowered even
to refuse to make a Reference and reject the same if it is
barred by time. The Collector or the Court, for that matter,
have no jurisdiction to condone the delay in filing an
application under Section 18 of the Act. In other words, a
Petition under Section 18, if filed within time, will be referred
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to Court and would be incapable of being altered or amended
with the aid of procedural provisions provided under the Code.
The provisions of the Code are procedural in nature, while the
provisions of the Land Acquisition Act are statutory and
binding. The Land Acquisition Act is a special enactment
intended to prescribe procedure and is a Code in itself
particularly in relation to the proceedings taken under Part II
of the Act and the Collector upon making a Reference under
Section 18 of the Act, loses its control and jurisdiction over
such proceedings.
34. The law of amendment which will enable a party to
amend the Memorandum of Appeal could normally relate to
certain circumstances, like potential, location of the acquired
land or reference to certain transactions which for bona fide
reasons and despite due diligence could not be placed before
the Court. In law, it would be difficult to hold that a Reference
Petition which has been filed before the Collector within time
can be amended in relation to quantum and can be altered
after the prescribed period of limitation is over. Section 18(2)
of the Act prohibits certain dealings and proceedings after
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expiry of the prescribed period and what cannot be achieved
directly can also not be achieved indirectly by adopting
recourse to the procedural law. The procedural law cannot
frustrate a substantive right that has accrued in favour of one
of the parties to the proceedings. It is an admission of a party
of which the other party would be fully entitled to take
advantage, where every Claimant would know and at least is
expected to know that the Collector is to fix the market value
of the land as on the date of acquisition i.e. when Section 4
Notification is issued. The stage of issuance of notice under
Section 9 of the Act is much later in point of time by which
they are expected to collect all the evidence that may be
necessary for proper determination of the claim of
compensation. Even thereafter when Award is made under
Section 11, the Claimants are at liberty to raise an issue for
receiving higher compensation even more than the
compensation which they may have claimed in response to
the notice under Section 9 of the Act. A Claimant being fully
aware of his rights and having sufficient time to prepare his
application for making a Reference to the Court of competent
jurisdiction, is expected to state grounds and his objections as
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to why the amount awarded by the Collector is not acceptable
to him, while also stating the amount and grounds on which
he claimed higher compensation. The application under
Section 18 cannot be termed as a mere formality, but it is
besides being a statutory application is an admission of facts
and grounds stated therein by the party concerned.
Withdrawal of an admission as a rule is impermissible, of
course, to certain extra ordinary exceptions, permissible under
the law.
35. The learned Counsel appearing for the
Claimants while referring to the provisions of the Land
Acquisition Act argued that the function of the Collector under
Section 18 is a ministerial function and the forwarding of a
reference is merely a duty for commencing of the proceedings
for reference petition. With the aid of the provisions of
Section 53 of the Act, the provisions of Civil Procedure Code
are applicable to reference proceedings, therefore,
amendment can be carried out at any stage of proceeding
under Section 18 of the Act. Section 3(d) of the Act defines
“Court” which means a Principal Civil Court of original
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jurisdiction, unless the appropriate Government has appointed
a special judicial officer to exercise such powers within the
specified limits to perform function of the Court. There can be
no doubt to the position of law that the Collector while
exercising powers under this Act is not a “Court” within the
meaning of the provisions of the Act and for that matter even
under legal parlance. Once an application is presented before
the Collector and it conforms to the requirement of Sections
18 and 19 of the Act, even then the Collector has power to
reject the reference if it is barred by time as the Collector or
the Court for that matter have no power to extend the period
prescribed under Section 18(2) of the Act. Thus, it is not
correct to say that the function of the Collector is merely
ministerial or can be effected without application of mind.
Section 19 places an obligation upon the Collector to apply his
mind, see if the reference is within time and satisfy the
requirement of Section 18 before forwarding the reference for
determination of the Court of competent jurisdiction in
accordance with law. The Collector while exercising such
powers does not have the trapping of a Court and to that
extent provisions of the Code of Civil Procedure per se would
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not be applicable to the proceedings before the Collector.
Admittedly, once the matter comes within the realm of the
Court, the provisions of the Code of Civil Procedure would be
applicable with the aid of Section 53 of the Act again and only
to the extent they are not in conflict with the provisions of the
Act. If a petition has become barred by time, then the
provisions of the Code cannot be utilized for the purposes of
defeating the bar which emerges from the specific provisions
of the Act. Merely because subsequently a law is amended
and/or a judgment is pronounced which may give some
benefit by itself would not be a sufficient ground for permitting
an amendment which at the face of it is impermissible in law.
36. Even under the provisions of old Section 25 of the
Act, the expression `as may a claim’ and the `amount so
claimed’ were referable under Section 9 of the Act. In other
words, there was a bar in the way of the applicant to claim
compensation higher than what he had claimed in response to
a notice under Section 9(1) and/or (2) of the Act. Section 9
under the old as well as the new law requires the Collector to
give a public notice stating that Government intends to take
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possession of the land, and that claims to compensation for all
interests in such land be made to him and further requires the
applicants-claimants later than 15 days, to submit their
interest in the land, and the amount and particulars of the
claim of compensation and their objections, if any. The
applicant was expected to submit the specific amount of
compensation he claims for acquisition of his lands. But after
amendment of Section 25, the Legislature in its wisdom lifted
the bar and granted liberty to the claimant that while filing an
application under Section 18, they could claim any higher
amount than what was claimed in response to a notice under
Section 9 and such claim would no way hamper their right to
challenge the award with complete freedom and regarding
quantum. These are not the cases where the applicants have
either omitted or have not chosen to pursue or have not filed
their applications under Section 18 within the prescribed time.
37. The learned Counsel for the Claimants also made a
reference to the format provided under the Maharashtra Land
Acquisition Manual in relation to making of an order under
Section 18 of the Act. While relying on the said form, it is
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stated that this form does not contemplate mentioning of any
amount. This argument is misconceived. The format referred
to in the Manual is not the form of the application which the
Claimant is required to submit under Section 18 of the Act but
it is a form of the order which is to be passed by the Collector
while referring the matter to the Court. The relevant form is
“VI”. It reads as under :-
” Case No. 19
VI. Reference to the Court under Sec.
18
WHEREAS A. B., son of
, has not accepted the award a copy of which is
hereto annexed (Repeat Form V) made by meunder Sec. 11 of Act I of 1894, and has
required by the accompanying application
(dated _____________) that the matter bereferred to the Court, I hereby make the
reference to the Court of theGround on which the (A copy of the
awardamount of Compensation relevant
portion
was determined : should
accompany)Nature of the objection
taken to the award.
SCHEDULE: Particulars of the notices served
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delivered by the parties interested.
Dated 19 Collector.”
38. The bare reading of the above form shows that it is
not even to be signed by the applicants nor it is required to be
filled in by the applicant. This order of reference is in
conformity with the provisions of Sections 18 and 19 of the
Act. At the cost of repetition we may say that the application
of the Claimant under Section 18 of the Act has to be in
conformity with the requirements of law i.e. to state the
amount, grounds of objections and grounds in support thereof
and the reasons why the Claimant claims higher compensation
amount than the one awarded by the Collector. Thus, this
argument is also of no avail to the applicants.
39. Besides this legal position that emerges from the
above judgments and the provisions of the Land Acquisition
Act, let us also examine the aspect of prejudice to the parties.
40. The claimants are expected to act vigilantly and
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raise their appropriate claim for acquisition of their lands.
However, even if the Claimants, despite exercise of due
diligence, are not able to make an appropriate claim for
determination of market value of the land as on the date of
issuance of section 4 notification, in response to notice under
section 9 of the Act, still after amendment of the provisions of
section 25 of the Act, they can raise the claim for a higher
amount in an application under section 18 of the Act. As
already noticed, these provisions require the applicants to
submit their objections and grounds, interalia, for inadequacy
of the compensation awarded to the claimants and claim such
other amount as they deem fit and proper. The legislative
intent appears to be that there should be appropriate and
expeditious disposal of land references. The scheme of the
Act does not contemplate amendment of section 18 petition
at a subsequent stage. In view of the legislative protection
provided, there is hardly any prejudice being caused to an
applicant-claimant if amendment to Petition is denied as it is
the duty of every interested person to act diligently and in
accordance with law.
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41. On the contrary, if Petition under Section 18 is
permitted to be amended at a late stage, it is likely to result in
prejudice to the State or the acquiring authority. They will
hardly be in a position to defend prayer for enhancement and
the matter would have to be remanded to the court of
reference which again would result in delay of conclusion of
proceedings and lastly such an approach does not appear to
be permissible under the provisions of the Act.
42. Reverting back to the judgment of the Supreme Court
in the case of Pramod Gupta (supra), the court has already
discussed the judgments relied upon by the claimants. It was
noticed in this case that claimants would be bound by their
pleadings before the Collector. The court will have to consider
that the claimants intent to resile from an express admission
made by them and the observation in Gaziabad Development
Authority case (supra) was not a binding precedent for no ratio
having been discussed in the judgment as well as in
Harcharan’s case, where the court did not address the
question as to whether Order 6 Rule 17 would be applicable in
relation to petition under Section 18. In the case of Ghaziabad
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Development Authority (supra), the Supreme Court had stated
the principle that where a question in relation to amendments
are allowed are not put up in issue before the High Court in
specific terms, then the Court particularly when a party has a
right to challenge an order otherwise or in any case in
memorandum of appeal even if it was not appealable and
once the order permitted amendment is neither specifically
challenged nor taken up in the grounds of memorandum of
appeal, the appellate Court will not interefere with such a
plea.
43. In the light of the recent judgment of the Supreme
Court in the case of Pramod Gupta (supra). which provides the
reasoning, discussion and which appropriately discusses the
previous judgments of the Supreme Court referred by the
Petitioner would be a binding precedent. The judgment and
the specific dictum spelled out in the judgment of Pramod
Gupta (supra) provides the clear ratio decidendi to the court
for answering the matters in issue in the present petition.
44. For the reasons afore-recorded, we are of the view
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that the provisions of Order 6 Rule 17 read with Order 41 Rule
33 of the Code of Civil Procedure cannot be resorted to amend
the application filed by the claimants under section 18 of the
Land Acquisition Act in so far as it relates to enhancement of
the amount of compensation claimed. However, the
provisions of amendment under the Code can be invoked in
amending the memorandum of appeal or a petition before the
reference court in so far as it relates to other matters
pertaining to pleading and/or evidence, e.g. location, potential
of the acquired land, sale instances which would benefit the
applicants to justify the amount claimed under Section 18 and
which could not be brought before the Court by them despite
due diligence. In other words, amendment of memorandum of
appeal should be understood in distinction to amendment of
an application filed before the Collector under Section 18 of
the Act.
45. Having discussed various legal aspects of the
questions involved in the present Appeals, now we would even
proceed to discuss the application for amendment in the
alternative. Even if we were to assume that provisions of
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Order 6 Rule 17 of the Code of Civil Procedure can be invoked
in amending a petition under Section 18, even then on merits
the present applications ought to be dismissed. The claim
petitions under Section 18 were filed by the applicants on 8th
November 1989, while the Notification under Section 4 of the
Act was issued on 24th September 1986. Obviously, prior to
filing of the application for reference, the Claimants had
claimed compensation and contested the proceedings before
the Collector in respect to the notice under Section 9 of the
Act. The claim petition in turn were referred to the Reference
Court which made its Award and judgment on 4th May 1996
after a lapse of nearly seven years. During the pendency of
these petitions, the Claimants filed an application for
amendment of the claim petition on 10th August 1994 which
was allowed vide order dated 24th August 1994 and the
Claimants claimed compensation at the rate of Rs.500/- while
they had initially claimed it at the rate of Rs.50/- under Section
18 of the Act. The parties led evidence on this basis and
finally vide Award dated 4th May 1996, the Reference Court
granted compensation at the rate of Rs.160/- per sq. mtr. to
the Claimants. These Appeals were filed by the State as well
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as the Claimants in the years 1996 and 1997 onwards and
since then these Appeals have been pending, while the Civil
Applications for enhancing the compensation claim from Rs.
500/- to Rs.5,000/- and seeking amendment have been filed in
the year 2004 and onwards after a lapse of more than seven
years. It is doubtful whether the amendment applications filed
by the Claimants could have been allowed by the learned
Reference Court, but since there is no challenge to that order
before us and the Appellants had already accepted the
amendment and led evidence in that regard, we are not
entering into that controversy in the present Appeals primarily
for want of challenge and that parties by their conduct
accepted the said amendment and faced the trial before the
learned Reference Court. The conduct of the applicants is
such that they would not be entitled in equity and law from
claiming such an amendment. Firstly, when they filed an
application for amendment before the Reference Court, they
were in a position and ought to have asked for the amount
whatever they wanted to. They opted to amend their petitions
and claim compensation only at the rate of Rs.500/- per sq.
mtr. that too after a lapse of more than seven years from the
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date of filing the application for Reference. Again, when the
present Appeals were filed, they waited for a period of seven
years before they filed the present applications. The
Claimants cannot wait indefinitely and then ask for
amendment after such a prolonged and unexplained delay.
The present application for amendment obviously suffers from
the defect of delay and laches. Even reference to the
judgment of this Court in First Appeal No. 646 of 2004 (supra)
does not advance the case of the applicants any further. The
Reference Court, in those cases, already had granted
compensation at the rate of Rs.200/- to Rs.230/- per sq. mtr.
and in those Appeals, the Claimants in their Appeals, at the
first instance, had asked for compensation at the rate of Rs.
2000/- to Rs.2200/- per sq. mtr. Which were filed in year 1995
though relating to the same Notification and adjacent villages.
In other words, even before they filed the Appeal, the amount
claimed by other claimants in those Appeals was well known
and at least it would be expected to be known. The present
applicants fairly would have knowledge or deemed to have
knowledge of those appeals where the claimants had claimed
compensation at the rate of Rs.2000/- to Rs.2200/- per sq. mtr.
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Now, suddenly raising the claim at the rate of Rs.5000/- per
sq. mtr. is not only a belated attempt on the part of the
applicants but even lacks bona fide. In support of their claim,
they have attempted to file some documents, such as, map,
judgment of this Court in First Appeal No.646 of 1995 and
letter dated 16th October 1984 issued by CIDCO giving a piece
of land for weigh bridge on lease for 60 years at the rate of Rs.
1873.28 per sq. mtr. This, in any case, would not advance the
case of the Applicants even in regard to the prayer made for
leading additional evidence. The application similar to the
application for amendment is belated and is an application
which lacks bona fides. These letters are of the year 1984
referred in Land References and against the judgments out of
which First Appeal No.646 of 1995 arises, were passed in the
year 1993 and they must have been well within the knowledge
of these Applicants. More so, the applications are vague and
one a mere attempt to delay the present proceedings. We
also cannot ignore the fact that the State Government would
have to accrue further liability for payment of statutory
interest on the enhanced compensation for the period during
which these proceedings are pending. There is no justification
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made out by the Applicants to show that the present Civil
Applications are bona fide and the prayers made should be
granted as, despite due diligence and care, they were not in a
position to bring on record the documents and to lead
additional evidence besides prayer for amendment of the
claim petition.
46.
Another aspect of these Applications for amendment
is that the claim now sought to be amended by the Applicants
is hit by the provisions of Section 18(2) of the Act as they
would be deemed to be barred by time. It is a settled principle
of law that the provisions of Order 6 Rule 17 for amending a
plaint even cannot be permitted where the claim has become
barred by time and the application for amendment is moved
after undue delay. Reference in this regard can be made to
the case of K. Raheja Construction Ltd.vs. Union of India, AIR
1995 SC 1768.
The Collector and the Court had no power to condone the
delay, which obviously means that whatever claim they have
raised while making Reference under Section 18 of the Act
before the Collector would bound the Applicants.
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47. Still another argument which can be fairly addressed
against the Applicants is that they are trying to withdraw an
admission made by them with full awareness of the law and
the consequences thereof. Under Section 17 of the Evidence
Act, admission has been defined as a statement, oral or
documentary, which suggests any inference as to any fact in
issue or relevant fact and which is made by any of the persons
and under the circumstances stated in the Act. Statement of
a fact made by a party to a proceeding are admissions. Under
Section 18, the persons who have any proprietary or pecuniary
interest in the subject matter of the proceeding and who make
a statement in their character of the persons so interested are
admissions. Keeping in view the scope of Sections 18 and 19
of the Act, admission of fact is made by the applicant by
referring to the amount of compensation they claim as true
market value of the acquired land. No doubt, it is obligatory
upon the State to pay true market value of the acquired land
to the claimants, but it has to be in accordance with law.
Once the Collector makes his award, then the onus shifts to
the applicants to show that their objections in regard to extent
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of compensation are justifiable and the amount claimed by
them in that application is payable to them. They are bound
by the admission and are expected to prove their claim in
accordance with law.
48. Reliance on behalf of the State was also
placed upon the principle of estoppel as it creates a bar that
prevents the Claimants from making higher a claim was right
that contradicts what they had claimed earlier in an
application under Section 18 of the Act. There is no
justification on record to show as to why the Applicants should
be permitted to withdraw such definite admissions when even
no circumstances have been suggested. As held in the case of
P.B. Gupta (supra), withdrawal of admission cannot be
permitted as a matter of routine and the party which made the
admission normally would be bound by such admission.
49. The cumulative effect of our above discussion of well
settled principles of law is that the present Civil Applications
for amendment as well as for leading additional evidence
suffer from the defect of delay, laches and even lack bona
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fides. These Civil Applications, if allowed at this stage, would
certainly cause serious prejudice to the non-Applicants.
Resultantly, all these Civil Applications are dismissed as not
maintainable as well as on merits.
Merits of the Appeal
50. During the course of argument, the learned Counsel
appearing for the Claimants also referred to the letter of
September 2007 which was placed on record during the
course of hearing stating that the Government had decided to
acquiesce to the to the judgment of the Court dated 21st June
2007 passed in First Appeal No. 646 of 1995 and argued that
they are entitled to the amount of compensation claimed by
them. The learned Counsel appearing for the State then
informed the Court that the State had not preferred any
Special Leave Petition against the judgment of the Court. In
these circumstances, the judgment has attained finality and,
therefore, the Claimants would be in any way entitled to the
compensation at the rate of Rs.500/- per sq. mtr. as claimed
by them.
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51. It has been brought on record that first notification
under section 4 of the Act was issued on 1st February, 1970 as
this notification lapsed. In view of the amended provision of
the Land Acquisition Act, the State Government issued a fresh
notification under section 4 on 24th September, 1986. On
lapsing of the first notification and upon acquisition of the
lands vide the second notification dated 24.9.1986, as already
noticed, SLAO while exercising the power of the Collector vide
his award dated 18th September, 1989 granted compensation
at the rate of Rs.4/- per sq. mtr. The possession of the land
was taken in October, 1989. Section 18 petitions had been
filed upon which the reference court enhanced the
compensation payable to the claimants at the rate of Rs.160/-
per sq. mtr. in respect of the lands from village Padgha as well
village Roadpali. The compensation was granted between Rs.
200/- to Rs.230/- per sq. mtr., depending upon the location of
the land, vide his award dated 4.5.1996. The appeals in
regard to village Roadpali have been disposed of by this court
by First Appeal No.646 of 1995. In the present case, the
learned reference court while making the award and
enhancing the compensation at the rate of Rs.160/- observed
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as under:
“35. The above observation make it clear
that if the other evidence of the sale of the
similar land is not available, then this type of
the evidence be considered for working outthe market value of the land. Here, the
claimants’ valuer in his valuation report has
shown some instances made by the
acquiring body. The evidence of the witnessof the acquiring body also shows the
instances made by the acquiring body at thetime of Notification, which I have considered.
In addition to this I have already stated that
these lands face a draw back. These landsare situate on the boundary of the
development plan and there are no free
access or the road to go to the acquired
lands. In addition to this the judgments,produced on behalf of the claimants are
challenged in the appeals. The view takenby my predecessor has not been finalized.
For all these reasons, I find it very difficult to
ascertain the market value of the land at theclaimant.
36. We usually see considering the
present we estimate about the future, but we
do not find for estimating things of pastthings of future considered. Therefore,
considering the land value awarded in those
judgments, which were not in existence at
the time of the Notification, I find it difficult
to go back because this evidence came into
existence after 7 years of the date of the
Notification. This is not the proximate time
allowing me to consider to be an instance on
or about the date of the Notifications.
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37. Counsel of the claimants also relied
on the judgments of Nos.172 of 1986 and
168 of 1986 of the lands situated in village
Ambetarghar, which is adjoining to village
Padaghe towards the West. These lands
were notified in the year 1970. In the year
1977 compensation was awarded at the rate
of Rs.90/- psm. Counsel submits that
considering the ratio of appreciation, the
claimants be awarded compensation at the
rate of Rs.500/- psm. I find it very difficult to
accept this contention. In existence of sales
made by the acquiring body at the time of
the Notification or in proximate of the date of
the Notification, if available and relied by
both the parties, then it will not be better for
me to consider the market value on the rate
of appreciation which will not provide
justification to the acquiring body. In this
case the claimants also claimed
compensation at the rate of Rs.100/- psm.
But actually claimed compensation at the
rate of Rs.50/- psm. disclosing the reason
that the claimants had no amount to pay the
Court fee, so less claim was made. Later on
the references were amended and they
claimed compensation at the rate of Rs.500/-
psm. for accepting the market value at the
rate of Rs.500/- p.m. Absolutely from all the
angles, there is no evidence with the
claimants. The market value, after all is a
value of the bonafide sale transaction passed
by the buyer to the seller, and this is the
value which provides satisfaction and
justification to the seller and also to the
buyer, having realizationed knowledge about
the market value of the land at the time of
making reference, the claimants made claim
of Rs.100/- psm. On the basis of the
valuation report and judgments, which were
not relied in the petition, but produced in
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Court, after 7-8 years, enhanced the claim. I
think this conduct of the claimants is not fair.
I do agree they have right to claim this much
amount of compensation for the acquired
lands. But at the same time it is their duty to
express their satisfaction in showing definite
market value of the land before making the
initial claim. Shri Ambike on oath specifically
stated that there is no any kind of
development on the acquired lands. Still the
lands are lying as barren lands. For all these
reasons, I find the market value of the land
should be Rs.160/- psm. which provides
satisfaction to the buyer and seller. I award
the same. Hence the order.”
52. As is evident from the above discussion, the main
reliance was placed upon the report of the expert valuer and
the letters issued by CIDCO in relation to sale of plots from the
same vicinity. According to the claimants, as CIDCO had sold
the land at much higher price, they are entitled to
compensation at the rate of Rs.500/- per sq. mtr. while
according to the State, the compensation awarded by the
reference court is much on the higher side and should be
reduced, if not, restore it to the award of the Collector.
53. During the course of arguments, the learned counsel
appearing for both the parties fairly conceded that the
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evidence led, documents produced and deposition of the
witnesses is similar to that of LAR No.138 of 1990. This award
which was made on 23rd December, 1993 was available to the
reference court which passed the award under appeal and
furthermore that village Roadpali is adjacent to village Padghe.
Thus, the judgment of this court in First Appeal No.646 of 1995
decided on 21st June, 2007 shall squarely cover the issue of
fact and law even in the present appeals. In First appeal No.
646 of 1995, after detailed discussion, this court held as under
and granted the following compensation to the claimants:
“23. Thus, in view of the above stated
principle, we have to make substantialdeduction from the price that we determine
with particular reference to the facts of the
present case. Certain areas have been
developed. Even the purpose for which thelands were acquired had potential, but it does
not mean that at the time of acquisition, the
same could be compared to a developed area
or an area which was totally commercial andwas capable of fetching much higher price
than that a willing purchaser would buy in
relation to the acquired lands. We have also
held that we cannot blame the parties and
particularly the claimants that they have not
produced and proved any sale-deeds on
record. There were no sale-deeds executed
right from 1970 to 1984 and it was only
already developed land which was given on
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instances are available on record which have
been proved in accordance with law and have
to be considered for determining the fair
market value of the lands. First instance is anallotment letter dated 16th October 1984 vide
which an area of 420 square metres being plot
No.413 at Kalamboli, Navi Mumbai, was
allotted on 60 years’ lease for total premium ofRs.7,06,777. This instance was proved by the
witness No.1 Shrikrishna, who stated and who
gave rate of the plot at Rs.1873.28 per square
metre. The letter of allotment showed thatwater and power supplies were available; and
charges were to be paid directly by the allotteeto the authorities concerned. Another witness
Karyal, on behalf of the Claimants, also made a
reference to this instance, and also stated thatCIDCO had developed wholesale steel market
in the year 1980 by planning an area of 305
hectares. In his statement he has further
stated that in regard to the sale of Anusuya forthe purpose of petrol pump the land was
leased out by way of tender; and it was at therate of Rs.240 per square meter. The other
instance is a lease-deed dated 2nd May, 1986
which was proved and placed on record. In thesubmission of this witness, the instance was,
where the plot in question was given at a
premium of Rs.345.87 per square metre; and
this was with regard to the plot admeasuring
2250.24 square metre. Still another instancewhich was proved by the Claimants is with
regard to the plot which was admeasuring
1466 square meters given for a weigh bridge
at the rate of Rs.2727 per square metre.
24, All the above instances relate to
village Kalamboli. From Exhibit 15, the map, it
is clear that the location of these lands is
nearer to the highway and is part of the
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industrial area. Certainly, the lands in
question are neither developed to that extent
nor entire lands about the national highway.
The instances that have been referred to bythe acquiring authority related to the lands
which are much farther away from the
acquired lands and the developed area. The
respondents did not lead any evidence beforethe learned reference Court, and only relied
upon the record of the acquiring authority. On
the basis of the instances proved by the
Claimants, it is clear that there has been anincreasing trend in the values of the lands
surrounding the acquired lands; but that itselfwould not entitle the Claimants for the same
compensation for which the property was
leased out or leasehold rights were created bythe Corporation. These lands were given after
they were fully developed where commercial
development had taken place, water and
electricity were available, roads and otheressential amenities were duly provided for and
that all would form part of the costs ofdevelopment, which have to be deducted from
the compensation to be given to the claimants.
The Court would also have to consider that inthe award in LAR No.172 of 1996, the learned
reference Court had awarded R.90 per square
metre in the year 1977. The lands in question
were acquired 7 years later i.e. In the year
1984. Merely three instances referred to bythe Claimants as well as a petrol pump
instance can hardly form the basis for
determination of the compensation. Since we
have found that the instances referred to are
of the lands which are fully developed they
cannot be taken into consideration and
therefore, we have taken the average of two
instances referred to in paragraph 23 above;
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the compensation has been worked out by us
at the rate of Rs.1725/- per square metre with
statutory benefits as contemplated under
Sections 23 and 23(1A) of the Land AcquisitionAct.
25. In the result, the Appeals are
dismissed. Consequently, the Cross Objectionsare partly allowed. All Civil Applications stand
disposed of. No order as to costs.”
54. As in
the present case, the applications for
amendment have been rejected and the claimants would be
entitled at best to claim the amounts which they had claimed
by amending their petitions before the reference court i.e. at
the rate of Rs.500/- per sq. mtr. The evidence discussed in the
judgment under appeal clearly shows that in the MIDC area,
development was started in the year 1968 and there are
number of industrial area adjacent to village Roadpali and
Village Padghe is only divided by a river. This has come in
evidence and there is hardly any dispute in that regard. As
per the valuation report Exhibit 47, it was stated that in village
Kalamboli, there was a premium of Rs.1837.28 per sq. mtr.
when it was given for a weigh bridge for 60 years lease. It is a
settled principle of law that the development on commercial or
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even residential plots would not reflect the true market value
for an agricultural lands which have been acquired as large
chunk. Be that as it may, the compensation granted by the
reference court in the judgment under appeal is in no way
unreasonable or unfair. It is to be enhanced in terms of the
judgment of this court in different cases.
55.
The Claimants, thus, would be entitled to the full
claim for compensation claimed by them i.e. at the rate of Rs.
500/- per sq. mtr.
56. The above order would be applicable to all the
Appeals and the Cross-Objections except in the four Appeal
Nos. 1510 of 2006 to 1513 of 2006 where the Claimants had
claimed compensation at the rate of Rs.1000/- per sq. mtr. in
their applications under Section 18 of the Land Acquisition Act.
However, before the trial Court as well as before this Court in
their Appeals, they have restricted their claim to Rs.400/- per
sq. mtr. and they paid Court Fee before the Courts on that
quantum. In other words, they have not pressed their claim
for any sum higher than Rs.400/- per sq. mtr. and no steps
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were taken by them before this Court even to make up the
deficiency in payment of Court Fee and/or take any other
steps relating to amendment or otherwise in these Appeals.
Thus, keeping in view the judgments of the Supreme Court in
the case of Govinda Raju (supra) and Scheduled Caste Co-op.
Land Owning Society Ltd. (supra), these Claimants would be
entitled to claim and are granted compensation at the rate of
Rs.400/- per sq. mtr. with all other statutory benefits.
56. In view of the above discussion, the Appeals filed by
the State are dismissed, while the Appeals and the Cross-
objections filed by the claimants are allowed. They are
granted compensation at the rate of Rs.500/- per sq. mtr. with
all other statutory benefits in accordance with law, except First
Appeal Nos. 1510/2006, 1511/2006, 1512/2006 and
1513/2006, where the Claimants are granted compensation at
the rate of Rs.400/- per sq. mtr. with all statutory benefits in
accordance with law. Resultantly, all the Appeals and
Applications are disposed of with no order as to costs.
CHIEF JUSTICE
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A. P. DESHPANDE, J.
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