18 September 1996
Supreme Court
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JAIPUR DEV. AUTHORITY Vs MAHAVIR HSG. COOP. SOCIETY

Bench: K. RAMASWAMY,FAIZAN UDDIN,G.B.PATTANAIK
Case number: C.A. No.-012662-012662 / 1996
Diary number: 76287 / 1994
Advocates: Vs SUSHIL KUMAR JAIN


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PETITIONER: JAIPUR DEVELOPMENT AUTHORITY

       Vs.

RESPONDENT: MAHAVIR HOUSING CO-OP. SOCIETY,JAIPUR ETC

DATE OF JUDGMENT:       18/09/1996

BENCH: K. RAMASWAMY, FAIZAN UDDIN, G.B.PATTANAIK

ACT:

HEADNOTE:

JUDGMENT:                             WITH                CIVIL APPEAL NO. 12653 OF 1996          (Arising out of SLP (C) No.14811 of 1994)                          O R D E R      Leave granted.      Notification under  Section 4(1)  of the Rajasthan Land Acquisition Act,  1953 was  published  on  August  21,  1969 acquiring a large extent of 484 bighas 11 biswas of land for Jaipur Urban  Development Scheme by different notifications. An extent  of 4 acres 5 biswas (9845 sq.yds.) relates to the acquisition in appeal arising out of SLP (C) No.14811/94. In respect of the appeal arising out of SLP (C) No.6519/94, an extent  of  10  bighas  7  biswas  was  acquired.  The  Land Acquisition Officer determined the compensation by his award Dated July  16,  1981  and  October  12,  1981  respectively determining the  Compensation at the rate of Rs. 5,000/- per bigha to  the respondent  - Jai  Ambe Co-op. Housing Society and Rs.7,500/-  per bigha  to  the    respondent  -  Mahavir Housing  to-op.  Society.  On  reference,  the  civil  Judge enhanced the  compensation at   the  rate of Rs.40,000/- per bigha. As  regards the   award of the Civil Judge, an appeal was filed  against the  respondent - Jai Ambe Co-op. Society Ltd. The  learned  single  Judge  in  appeal  No.142/92  has confirmed the same by judgment dated May 2, 1994. As regards the award in favour of Mahavir Housing Co-operative Society, no appeal  was filed. But in execution an objection has been raised regarding  additional amount  awarded  under  Section 23(1-A) which  was negatived. On revision, the High Court in Revision No.1059/93  dated December  20, 1993  confirmed the same. Thus, these appeals by special leave.      When  the   matter  relating   to  Mahavir  Housing  Co operative Society  initially came up, notice was confined in respect of  section 23(1-A) but later when it was brought to our notice  of the  fraud and collusion between the officers entrusted with  the prosecution   on behalf of the appellant and the  claimants, we have indicated to the counsel that we would  go   into  the   question  of  determination  of  the compensation Thus these cases are heard together. It is seen that from the evidence adduced before the reference Court in respect of  jai ambe Co-operative Housing Society except one

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claimant Mr.Garg no documentary evidence has been adduced in support of  the claimant  for enhancement.  Two awards under Section 26  came to  be filed in which one award relating to the Mahavir  Housing Co-operative  society and another award relating to  the same  notification but  an  amount  of  Rs. 24,000/-per bighas  was awarded.  As regards  the  claim  in Mahavir   housing co-operative  Society is  concerned,  they relied upon  a judgment  of the High Court in which the High Court has  granted of  some lands  at the rate of Rs.12/-per sq.yd. which  related to  the acquisition of 1994 and also a certificate issued  by  Tehsildar  relating  to  some  other village, which  worked out  at the  rate of  Rs 44,000/- per acre and the sale deeds in support thereof. One curious fact in both  the cases  that cannot be lost sight of is that the claimants  have   purchased  these   properties  after   the notification  under   Section  4(1)   was  published  and  a reference came  to be  made at  their  instance to the civil Court. Though  an opportunity  was   given to the appellant, for well  over 11  years, no   counter  affidavit  has  been filed. As  a result,  they   were set  ex-parte. Yet another curious aspect  that we  cannot lose  sight of  is that  the reference Judge has  merely with parrot-like t consideration swallowed what  with witnesses  had stated  that the  market value is  Rs.50/-  per  sq.yd.  without  subjecting  to  any scrutiny as  per the  tests laid  down by  this Court. It is also to  be noted  that the  same aspect was repeated by the learned Judge  of the  High Court in  to-any scrutiny as per the tests laid down by this court. It is also to be noted be that the  same aspect  was repeated  by the learned judge of the High  court in  jai Ambe  Co-operative Housing society’s case.      The  question,   therefore,  is   what  would   be  the reasonable compensation  to which  the claimants are capable to get?  In view  of the  settled legal  position  that  the claimants being  the subsequent  purchasers  cannot  have  a higher right  than that the original owner himself had. They cannot set up any title to the property on the basis of sale deeds  and  consideration    but  may  be  entitled  to  the compensation  obviously   getting  into  the  shoes  of  the claimant. We  need not  go into  the question of correctness whether or  not the  reference is valid in this case, though open to  doubt since  that question  was not  raised at  any stage much  less in  this Court.  We proceed  on the premise that the reference under Section 18 was valid.      As stated  earlier, the  entire process  has gone on in collusion. When  we have  issued notice to the appellants as to what  steps they  have taken against the officers who are responsible  even   for  not   filing  the  appeals  or  not contesting the  matter, an affidavit has been filed in which it was  stated that  disciplinary action  against  the  Land Acquisition Officer  was taken  and  even  the  counsel  who appeared  for   the  Jaipur  Development  Authority  was  in collusion and  steps were taken by laying a complaint before the Bar  Counsel for  professional misconduct.  We need  not further dwell  up on  that fact but suffice it to state that the acquisition proceedings have proceeded in collusion and, therefore, they  were not reflected the correct market value as is  available in  this case.  As  seen  in  jai  Ambe  Co operative Housing  Society’s case. even their own sale deeds under which  they have purchased from one Bhagwan Singh, who was said  to be  the original  owner, were  not even  filed. Under these  circumstances. We thought over the matter as to what would  be the  appropriate course to be adopted in this case. We  are of  the view  that instead  of relegating  the matter   again, we  can ourselves  decide the  matter ON the

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basis of  the  evidence  on  record.  Accordingly,  we  have considered the case on merits.      It is  seen  that  the  Land  Acquisition  Officer  has awarded compensation  at the rate of Rs.7,500/- per bigha to the lands  purchased by Mahavir Co-operative Housing Society and Rs.5,000/- per bigha to the lands  purchased by Jai Ambe Co-operative Housing Society Ltd. Having regard to the facts and circumstances,  we are  of the  considered view that two times more  than what  was granted  by the  Land Acquisition Officer  would   be  the  just  compensation  in  the  given circumstances of  the case.  Accordingly, we  determine  the compensation to  Jai Ambe  Co-operative Housing Society Ltd. at the  rate of  Rs 15  000/- per  bigha and to the lands of Mahavir Housing  per Co-operative  Society  Rs.22,000/-  per bigha.      As regards  the State of Rajasthan the Land Acquisition (Amendment) Act,  68 of  1984 was  extended  w.e.f. April 30 94. But  the State  Legislature had    amended  the  Act  by Amendment Act  28 of  1987 w.e.f.  August  1.1987.  In  Umed Industries  &   Land  Development  Co.  &  Ors.V.  state  of Rajasthan &  Ors. [(1995)2  SCC 563],  a Bench of two Judges had held  that the  Central Amendment  Act 68  of 1984 would apply from  August 1,1987  to the  acquisition in  State  of Rajasthan. It  is seen  that in Mahavir Housing Co-operative Society’s case,  possession was  delivered on  May 24,  1984 after the  stay was  vacated by  the civil  Court since  the civil Court  granted stay  of dispossession  on October  23, 1983. Therefore,  the respondent-Society  is not entitled to the interest prior to May 25, 1984. Therefore, the decree as regards  payment   of  interest   from  the   date  of   the notification till  May 24,  1984 is  clearly illegal.  It is seen that since the award, if the reference Court is dated-- June 15,  1990 claimants  will be  entitled to interest from 25, 1984 at the rate of 6% per annum till August 1, 1987 and thereafter 15%  per annum  on the enhanced compensation till date of  deposit in  the Court.  As regards  the solatium is concerned, they are entitled to 30% solatium on the enhanced compensation. As regards the additional amount under Section 23 A)  is concerned,  the claimants  are not entitled to the additional amount  since the  awards name  to be  passed  by the reference Court on October 12, 1981 and July 16, 1981 in  Mahavir Housing  Co-operative Society  and Jai Ambe Co-operative Housing Society Ltd. respectively.      In Prem  Nath Kapur  and Anr.  V. National  Fertilizers Corpn. of  India Ltd. and Ors. [(1996) 2 SCC 711, considered the entire  case law by a bench of three Judges in paragraph 17 had  held that the power to grant additional amount under section 23(1-A)  and enhanced  interest under the proviso to Section 28 and solatium at 30 per cent was due to amendments brought under Act 68 of 1984. Prior thereto the court has no power  or   jurisdiction  to   grant  them.  Therefore,  the additional amount,  the excess  rate of interest or solatium at 30  per cent  granted were  without  jurisdiction  are  a nullity. The  courts cannot  correct the award or the decree in exercise  of the  power under Sections 151 and 152 C.P.C. This Court  has relied  upon the Constitution Bench decision in Union  of India   v. Raghubir Singh [(19863 ) 3 SCR 3161. This Court  has reiterated  the same  principle  in  another recent judgment  in Baj  Shakriben v.  spl. L.A.O. [1996 (4) SCALE  636].   Therefore,  objection   would  be  raised  in execution under  section 47.  The award  of  the  additional amount was one of without jurisdiction and so a nullity.      It is  contended for  the respondent in Mahavir Housing Co-operative  Society’s  case,  that  since  the  award  was allowed to become final including grant of additional amount

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under Section  23(1-A), it  is not  open to  the review at a later  date   since  it  is  not  one  of  initial  lack  of jurisdiction  but   an  illegality  has  been  committed  in awarding the additional amount. In support. thereof, learned counsel relied  upon a  judgment of  this Court  in State of Punjab &  Ors.vs.  Mohinder  Singh  Randhawa  &  Anr.  [1993 supp.(1) SCC  49, paragraph  3} It  is true  that in  a case where the  proceedings were properly conducted and the order was allowed  to become final, the matter may be construed to be an  order of  illegality. When it is one of jurisdiction, this Court  has repeatedly,  in plethora  of precedents, had held  that   the  courts   have  no  jurisdiction  to  award additional amount  under Section 23(1-A) since the Collector had already  passed the  award  under  Section  11  and  the benefit of additional amount would be confined to the period between the  date of the notification under Section 4(1) and the award under Section 11 when the proceedings were pending before him. In this case, since we have already recorded the finding that  the award became final due to collusion by the officers and  the claimants,  the principle of illegality in the award  does not  apply since  fraud unravels  the entire procedure and makes the award a nullity.      The appeals are accordingly allowed as indicated above, but  in   the  circumstances,   Without  costs.  As  regards structures  awarded  by  the  reference  Court,  they  stand upheld.