Justice D.K. Mahajan and Others vs The Union of India and Another

Sukhdev Singh Kang, J.—Identity of legal issue raised and similarity of facts involved in Civil Writ Petitions Nos. 4726 of 1984 and 3820, 4942 and 5150 of 1985 invite a common determination and judgment.

A broad-brush factual backdrop of C.W.P. No. 4726 of 1984 will help illumine the contours of the pristinely legal controversy.

A vast tract of land comprised a number of revenue estates and lying on the outskirts of Pathankot town of district Gurdaspur was acquired for defense purposes vide two notifications issued u/s 7(1) of the Requisitioning and Acquisition of Immoveable Property Act, 1952 (hereinafter to as ''the Act J and published in the Punjab Government Gazette dated March 6 and March 13, 1970. The lands of the Petitioners in these writ petitions were covered by these notifications. The Punjab Government, in exercise of the powers conferred by Clause (b) of Sub-section (1) of Section 8 of the Act read with the Government of India''s notification No. SRO-2519, dated May 24, 1957, appointed Sh. M. S. Ahluwalia, Senior Subordinate Judge, Gurdaspur as an arbitrator for the purposes of making an award determining the amount of compensation payable in relation to the acquired property. On December 5, 1977, the arbitrator pronounced his award and determined compensation payable to the claimants at the rate of Rs. 1,000/- per Kanal for Barani land, Rs. 800/- per Kanal for Banjar Jaded and Barani Soan lands, Rs. 500/- per Kanal for Banjar Kadim land and Rs. 250/- per Kanal for Gair Mumkin land. He also directed the Respondent to pay the claimants solarium at the rate of 15 per cent and interest at the rate of 6 per cent per annum, on the excess amount of compensation determined, with effect from March 13, 1970, till the amount of compensation had been actually paid or deposited. Harbans Singh and some other landowners, whose lands had been acquired as also the Union of India dissatisfied with the award of the arbitrator, filed appeals u/s 11 of the Act against the award of the arbitrator. These appeals were heard together and disposed of by a common judgment rendered in F.A.O. No. 39 of 1978 (Shankar Singh and Ors. v. Union of India) F. A. O. No. 39 of 1978. The learned Single Judge allowed the appeals of the landowner-claimants and determined the market value of the suit land at the flat rate of Rs. 200/- per Marla. He also directed the Respondents to pay the claimants solarium at the rate of 15 per cent and interest at the rate of 6 per cent per annum. The appeals filed by the Union of India against the said award were, however, dismissed. It is pertinent to note at this stage that none of the Petitioners in those writ petitions filed an appeal against the said award of the arbitrator. They even did not choose to file cross-objections in the appeals filed against them by the Union of India.

One Shri Inder Singh, resident of village Mamon, tehsil Pathankot made an execution application in the Court of the Additional District Judge, Gurdaspur praying for enhanced compensation at the rate of Rs. 200/- per marla as determined by the learned Single Judge in F. A. O. No. 39 of 1978. Shri Inder Singh had been awarded compensation at the rate of Rs 50/- per marla by the arbitrator. Shri Inder Singh had not filed appeal against the award of the Arbitrator. On receipt of notice of this application, Respondent deposited com-pensation to be paid to Shri Inder Singh at the rate of Rs. 200/- per Marla. The Additional District Judge paid this compensation to Shri Inder Singh. The Respondents, however, declined to pay the Petitioners compensation for their lands at the enhanced rate of Rs. 200/- per Marla. The Petitioners in these writ petitions contend that this action of the Respondents in not paying to them compensation at the enhanced rate of Rs. 200/- per Marla is discriminatory. They seek the modification of the award of the arbitrator and pray that the Respondents be directed to pay the Petitioners enhanced amount of compensation at the rate determined by the learned Single Judge in F.A.O. No. 39 of 1978.

The facts of the other three writ petitions are similar.

The Respondents have resisted the writ petitions. They have filed written statements controverting the allegations made in the writ petitions. They have inter alia pleaded that the Petitioners were not entitled to invoke the extraordinary jurisdiction of this Court by way of writ petitions. The ratio of F.A.O. No. 39 of 1978 relied upon by them is not applicable to their case. The Petitioners did not belong to the same category as Harbans Singh, above mentioned. The award made by the Arbitrator enured for the benefit of only those claimants who had moved appropriate applications for the purpose. It is stated in the award that "the benefit of the rates adjudged by this award shall be available to the claimants abovementioned and not to those landowners who have not filed any claim," It was admitted that the payment of compensation at the enhanced rate was made to Shri Inder Singh on the orders of the executing Court. Shri Inder Singh was not entitled to enhanced compensation as he was not a party to the afore mentioned appeals and there was no order in his favour for the payment of enhanced compensation. The enhanced compensation had been wrongly paid on misrepresentation by Shri Inder Singh. Action for recovery of enhanced compensation paid wrongly had been initiated against the said Shri Inder Singh and the restitution application had been filed against said Shri Inder Singh in the Court of Additional District Judge. It was denied that there had been any discrimination against the Petitioners. The Petitioners in fact never agitated against the award of the arbitrator.

An amended written statement was filed under the order of this Court, wherein the stand taken in the previous written statement was elaborated. It was averred that the payment of enhanced compensation was made to Shri Inder Singh and others through the Executing Court due to the collusion of the office of the D. E. O., Pathankot. These landowners were not entitled to enhanced compensation as they had not filed any appeal or cross objections against the award of the Arbitrator.

Shri J. N. Kaushal, Senior Advocate, learned Counsel for the Petitioners, aruged that it is the duty of the State authorities who acquire citizen''s property to pay compensation equivalent to the market value of such property. This obligation is inherent in the plenary power of compulsory acquisition vesting in the State. In a welfare state, it is not obligatory on the citizen whose lands have been acquired to knock at the doors of the Courts to get fair and just compensation for his property which has been acquired by the state for public purpose. It is the duty of the State to offer and pay the market value of the lands acquired. In the present case, a large area of land had been acquired for defence purposes. The Collector had not offered fair compensation. On the applications of the landowner the matter regarding determination of compensation was referred to arbitrator, Shri M.S. Ahluwalia, Senior Subordinate Judge. Gurdaspur. The Arbitrator, however, did not determine compensation for the acquired lands correctly. Some of the landowners filed appeals and I. S. Tiwana, J. in F. A. Order 39 of 1978 determined the market value of the whole of the land acquired, including the lands of the Petitioners at the flat rate of Rs. 200/- per marla. The Letters Patent appeal filed by the Union of India against this judgment has been dismissed. The judgment in F.A.O. No. 39 of 1978 has become final. The Respondents are bound by it. It is their moral and legal duty to pay the Petitioners compensation at the rate of Rs. 200/- per Marla. The State cannot deny the Petitioners just and fair compensation on the technical plea that they had not filed appeals against the award of the arbitrator. Taking cue from the observations of their Lordships of the Supreme Court in Bhag Singh and Others Vs. Union Territory of Chandigarh through the land acquisition collector, Chandigarh, . Mr. Kaushal contended that if the Petitioners are not paid compensation at the rate of Rs. 200/- per Marla, it will tantamount to permitting the State to acquire the land of the Petitioners on payment of less than the true market value. He further contended that in order to pay fair and just compensation to the landowners, whose lands are acquired, the Land Acquisition Act has been recently amended by the Land Acquisition Amendment Act, 1984 (Parliament Act 68 of 1984). Sections 25 and 28-A have been incorporated therein enabling the authorities to redetermine the compensation once any once landowner has obtained orders for payment of higher compensation on a reference. Referring to the objects and reasons of Act 68 of 1984, Mr. Kaushal contended that the amendments were made in the principal Act because many landowners did not take advantage of the provisions of reference to the Civil Court u/s 18 of the Land Acquisition Act and only the affluent segment of the landowners availed of this facility, thereby causing inequality in the payment of compensation for the same or similar quality of land to different interested parties. So, the amended Act provided an opportunity to all aggrieved parties whose land was acquired under the same notification, to seek redetermination of compensation, once any one of them had obtained orders for the payment of higher compensation from the Civil Court on a reference u/s 18 of the Act. The Petitioners could, subject to the other provisions contained in Act 68 of 1984, obtain re-determination of compensation from the Collector. There is, therefore, no bar to this Court in exercise of its extraordinary jurisdiction under Articles 226/227 of the Constitution to direct the Respondents to pay the Petitioners compensation at the higher rate determined by the learned Single Judge in F. A. O. No. 39 of 1978.

On the other hand, Shri Govind Dass, Senior Advocate, learned Counsel for the Respondents, argued that an elaborate procedure for determination of just and fair compensation has been devised in the Act itself. The forum therefore has been prescribed. Dissatisfied claimants, whose lands have been acquired by the State under the provisions of the Act, can seek the reference of their dispute to arbitration The parties aggrieved by the award of the arbitrator has been given rights to file an appeal against the award In the present case, one of the claimants, Harbans Singh, had in fact, filed an appeal and the same had been allowed The Union of India was dissatisfied with the award; it had also filed appeals. One of the landowners had filed cross objections in the appeals. The appeals of the Union of India had been dismissed but cross objections had been allowed. The Petitioners had statutory right of appeal against the award of the arbitrator. They did not choose to avail of the remedy, which is far more efficacious then the present proceedings. Not only that, they did not even care to file any cross-objections on receipt of the summonses from this Court in the appeals filed by the Union of India. These facts and the conduct of the Petitioners fully establish that they were satisfied with the compensation determined by the Arbitrator. They had filed the writ petitions only on coming to know that Shri Inder Singh, though he had not filed an appeal, had been paid compensation at the enhanced rate determined in F. A. O. No. 39 of 1978 However, the executing Court has reviewed its order and dismissed the application filed by Shri Inder Singh and similar other claimants. It has ordered them to pay back the enhanced compensation. The appeal filed by those landowners have been dismissed by this Court on November 25, 1986. So, the basis for the plea of discrimination has been knocked out. The award was rendered by the arbitrator on December 5, 1977. The Petitioners could file the appeal against that award within 30 days thereof. However, they have chosen to file the present writ petitions on October 16, 1984, i. e. about 7 years after the decision. Since the Petitioners have not availed of the statuary remedy of appeal and have not given any reason whatsoever for not doing so, they cannot be allowed to invoke the extraordinary jurisdiction of this Court at such a belated stage.

Regarding the policy of the Legislature as articulated in Section 28-A, incorporated in the Land Acquisition Act by Act 68 of 1984, Shri Govind Dass contended that the acquisition in this case was made under the provisions of the Requisioning and Acquisition of Immoveable Propery Act. The Act has not been amended by the Parliament and provisions analogous to Section 25 and 28A of Act 68 of 1984 do not find place in the Act. Moreover, the provisions of Sections 25 and 28-A were incorporated, as is evident from the objects and reasons for enacting Act 68 of 1984, for the benefit of inarticulate and poor people who were generally unable to take advantage of the provisions of conferring the right to claim a reference to the Civil Court u/s 18 of the Act. The Petitioners surely don''t fall in the category for whose benefit the provisions was extended The Petitioners could make an application under these provisions to the Collector only within one month of the decision in F. A. O. No. 39 of 1978 and that too if they had not claimed the reference and the compensation had in fact been enhanced the award; it by the arbitrator. So, the provisions of Sections 25 and 28-A would hot have been attracted even if the acquisition was made under the Act. The plea of limitation was not a technical one. The enhancement of rate of compensation in F. A. O. No. 39 of 1978 could not furnish a ground for ignoring the larches on the part of the Petitioner in filing the writ petitions. In support of this contention he has relied upon the latest decision of the final Court in Mewa Ram (Deceased) by his Lrs. and Others Vs. State of Haryana through The Land Acquisition Collector, Gurgaon,

It is apparent from the pleadings of the parties and submissions made by the learned Counsel for them that a big chunk of land contiguous to Pathankot town had been acquired for defense purposes. The Collector did not offer adequate compensation. The landowners, including the Petitioners in these writ petitions, sought a reference. Shri M. S. Ahluwalia, Senior Subordinate Judge, Gurdaspur, who had been appointed arbitrator, determined the compensation of the acquired lands at various rates mainly taking into account the agricultural potential thereof. Harbans Singh and other landowners, whose lands had been acquired along with the Petitioners in these writ petitions, filed F. A. O. No 31 of 1978. The Union of India also filed appeals against this award of the arbitrator. The case was heard together and T. S. Tiwana, J., vide his judgment dated April 6, 1983, determined the compensation of the acquired lands at the flat rate of Rs. 200/- per Marla. The claimants were also awarded solarium and interest on the enhanced amount of compensation. Appeals filed by the Union of India were, however, dismissed. The judgment was rendered in F.A.O. No 39 of 1978 (Shankar Singh and Ors. v. Union of India F. A. O. No. 39 of 1978.) which related to another village, the lands whereof had been acquired along with the lands of the Petitioners and Harbans Singh and others, above-mentioned. The Petitioners did not file any appeal against the award of the arbitrator. They did not even choose to file cross-objections when they received notices in the appeals filed against them by the Union of India. As observed earlier, the judgment in F.A O No. 39 of 1978 was rendered on April 6, 1983- The Petitioners filed the present writ petitions on October 16, 1984. The main pleas for seeking relief in the writ petitions is the payment of enhanced compensation to Shri Inder Singh, though he had not filed any appeal against the award of the arbitrator. In the writ petitions there is no explanation as to why the appeals had not been filed by the Petitioners against the award of the arbitrator. Apart from payment to Shri Inder Singh, there is no other ground urged in the writ petitions seeking higher compensation at the rate of Rs. 200/- per Marla It has been proved to my satisfaction by the Respondents and is, in fact, very fairly conceded by the learned Counsel for the Petitioners that on the application of the Respondents, Shri Inder Singh and other landowners, who had claimed compensation at the enhanced rate, have been asked to pay back the same with interest and that the appeals filed by these landowners have been dismissed by D. V. Sehgal, J. on November 26, 1986. So, the only ground raised in the writ petitions regarding the discriminatory treatment is no more available to the Petitioners.

Faced with this situation, Shri Kaushal had argued that it was the bounden duty of the authorities themselves to pay the Petitioners, whose lands had been acquired, compensation therefore at the market value. The market value had been determined by the learned Single Judge in F.A.O. No. 39 of 1978. The State could not be permitted to defeat the Petitioners'' rights on technical pleas like limitation and alternative remedy.

The arguments have not impressed me The statute providing for compulsory acquisition of land provided comprehensive procedure and adequate machinery for the determination of the true market value of the acquired land In the very nature of things there cannot be an agreement between the landowners and the State authorities who acquit lands, on the question as to what exactly and truly was the market value of the acquired land. Keeping this thing in view, parliament devised procedure, machinery and forum for determining the market value. The claimants, if dissatisfied with the offer of the Land Acquisition Collector or a representative of a State, can seek a reference to the Civil Court or the arbitrator depending on the statute under which the land has been acquired. If either of the parties is dissatisfied with the award of the Civil Court or of the arbitrator, as the case may be, it is the statutory right of the claimant or the State to file an appeal. The appeal is an effective remedy. If a person does not avail of this statutory remedy of appeal within the time prescribed and in accordance with the procedure prescribed therefore, he cannot invoke the extraordinary jurisdiction of this Court as a matter of course or right. In the present case, the Petitioners, as noticed earlier, have given no reasons whatsoever for not filing the appeals against the award of the arbitrator. Shri Govind Dass is fully justified in contending that the Petitioners did not do so because they were satisfied with the determination of the market value by Shri M. S Ahluwalia.

The provisions of the amending Act are not of any help to the Petitioners. As is evident from the reasons and objects for their enactment, only inarticulate and poor people have been sought to be protected. From the areas acquired and the amount of compensation determined and paid to the Petitioners, it cannot be said that they fell in that category. Moreover, since the Petitioners had claimed reference to arbitration, they could not avail of the remedy u/s 28-A, because only those landowners, who have J not availed of the remedy of reference, can approach the Collector for receiving compensation at a higher rate as determined by a com- patent Court. It is true that it is the duty of the state authorities to offer market value of the acquired land as compensation. However, there is generally no unanimity amongst the parties regarding the true market value of the land acquired. It is for that reason that provision has been made in the Acts providing for compulsory acquisition for determination of the market value by competent judicial or quasi-judicial authorities. Any party dissatisfied with such determination has been given a statutory right of appeal. The party which does not avail that right of appeal cannot, as a matter of course, approach this Court under Articles 226/227 of the Constitution of India complaining that the authorities have not offered just and fair compensation for the acquired land. The State authorities have every right to resist such a claim may be on the plea of limitation or failure to avail of an alternative remedy. The decision of the final Court in Bhag Singh''s case (supra) does not in any way help the Petitioners. The factual matrix in which the observations relied upon by Shri Kaushal were made was entirely different. In that case, the claimants-landowners dissatisfied with the award and determination of the compensation by the Civil Court, had filed appeals in this Court. The appeals of the landowners were allowed and the pleas for enhancement of compensation were accepted by a learned Shgle Judge of this Court. The order awarding compensation was, however, made subject to the claims put forward in the memoranda of appeal preferred by the claimants landowners and the Court fee paid on such claims. It seems that the Appellants had not paid the requisite Court fee on the enhanced amount of compensation claimed and they, therefore, could not get the benefit of the order of the learned single Judge. They preferred a Letters Patent Appeal. The Division Bench affirmed the judgment of the learned Single Judge in regard to the rate of compensation qua one category and enhanced the compensation regarding the second category. The Division Bench, however, restricted the benefit of enhanced compensation only to those claimants who had made payment of proper Court fee. The result was that the Letters Patent Appeal of the Appellants was dismissed, though according to the view taken by the Division Bench, the Appellants were entitled to enhanced compensation for their lands. The landowners filed Special Leave Petitions in the Supreme Court. It was in this context that their Lordships of the Supreme Court held that the Appellants should have been given an opportunity of paying up the deficit Court fee so that they, like other claimants, could also get enhanced compensation at the same rate as others. It was in these circumstances that they had observed that the learned Single Judge and the Division Banch should not have adopted a technical approach and denied the benefit of enhanced compensation to the Appellants merely because they had not initially paid the proper Court fee It is evident that in Bhag Singh''s case (supra), the claimants landowners had not only filed appeal against the award of the Civil Court, but they had also filed a Letter Patent Appeal against the judgment of the learned Single Judge. The only flaw in their case was that they had not affixed the full Court fee. The present petitions are covered by ratio of the latest decision of the apex Court in Mewa Ram''s case (supra). In that case, the Special Leave petitions filed by the landlords-claimant whose lands had been acquired, against the judgment of this Court, were dismissed at time-barred. In another case, the apex Court, enhanced the rate of compensation for the adjacent land. Mewa Ram and others did not file any SLP within the time prescribed. However, after about three years when compensation for the adjacent land had been enhanced, they preferred Special Leave Petitions. These were dismissed and the plea regarding the beneficial effect to Sections 25 and 28-A enacted by Parliament Act 68 of 1984 was also considered and the objects and reasons thereof were gone into. Even then, it was held that the Petitioners could not plead their own laches as a ground sufficient for condensation of delay. Since the Petitioners in these writ petitions did not file appeals against the award of the arbitrator, they, after 7 years thereof, cannot claim compensation at the enhanced rate merely because the market value of (he adjoining land has been determined at a higher rate in an appeal filed by another landlord-claimant It is more so when there is no explanation whatsoever for the inaction in not pursuing the statutory remedies available to them.

In the result, the writ petitions have no merit and are dismissed but with no order as to costs.