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CASE NO.: Appeal (civil)  6825-26 of 2003

PETITIONER: Union of India                                                   

RESPONDENT: Pramod Gupta (D) by LRs. & Ors..                                 

DATE OF JUDGMENT: 07/09/2005

BENCH: Ashok Bhan & S.B. Sinha

JUDGMENT: J U D G M E N T WITH C.A. Nos. 6827-6832/2003, 950, 2661 of  2005, CIVIL APPEAL NOS. 5566-5569 OF  2005 [arising out of SLP(C) Nos. 14383 OF  2004, 17913,  17915, 17916 OF 2005]

S.B. SINHA, J :

Leave granted in the special leave petitions.

INTRODUCTION :

       These appeals are directed against a common judgment and order  dated 5.10.2001 passed by a Division Bench of the High Court of Delhi in  R.F.A. No. 85 and 86 of 1987 under Section 54 of the Land Acquisition Act,  1894 (for short "the Act") whereby and whereunder the amount of  compensation in respect of acquisition of land in village Masoodpur with  china clay and without china clay was fixed @ Rs. 56/- per sq. yard and Rs.  30/- per sq. yard respectively in relation to the notification dated 24.10.1961  and Rs. 98/- per sq. yard and Rs. 72/- per sq. yard  with China Clay and  without China Clay respectively in relation to the notification dated  23.01.1965.

       The basic fact of the matter is not in dispute.  Two notifications dated  24.10.1961 and 23.01.1965 were issued for acquisition of the lands  measuring 1105.04 bighas and 3895.07 bigha respectively situated in village  Masoodpur for the public purpose of planned development of Delhi, i.e., for  construction of Jawahar Lal Nehru University.  Declarations under Section 6  of the Act were issued on 6.08.1966 and 6.12.1966.  Two awards being  award Nos. 2040 and 2225  were made on 2.12.1967 and 8.04.1969.  The  Land Acquisition Collector for the purpose of computation of the amount of  compensation payable for acquisition of said land divided the acquired lands  in three categories \026  viz. Blocks A, B & C and awarded compensation @  Rs. 1000/- per bigha for Block A, Rs. 900/- per bigha for Block B and Rs.  600/- per bigha for Block C in respect of the acquisition of land under  notification dated 24.10.1961 and Rs. 1580/- per bigha for Block A, Rs.  1175/- per bigha for Block B and Rs. 600/- per bigha for Block C in respect  of the acquisition of land under notification dated 23.01.1965.  The owners  of the lands being aggrieved by and dissatisfied with the said awards filed  applications seeking reference in terms of Section 18 of the Act pursuant  whereto and in furtherance whereof the Reference Court by a judgment and  award dated 28.07.1986 awarded compensation @ Rs. 18000/- per bigha for  the lands covered by Award No. 2225 and Rs. 12000/- per bigha for the  lands covered by Award No. 2040.  The Reference Court further granted  compensation @ Rs. 10,000/- per bigha for minor mineral, i.e., China Clay.  

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       On or about 8.12.1986, the Appellants herein preferred appeals in  terms of Section 54 of the Act being aggrieved by and dissatisfied with the  said judgment and award which were marked as R.F.A. No. 85 & 86 of  1987.  The Respondents herein upon  service of notice filed cross objections  seeking enhancement of compensation both in respect of land as well as the  mineral China Clay.   

HIGH COURT:

The High Court by reason of the impugned judgment dismissed the  appeals filed by the Appellants  herein holding, inter alia, that the judgments  and awards granting compensation for the lands acquired in the  neighbouring villages which were upheld by it in R.F.A. Nos. 567/1990 and  694/1990, would attract the principle of res judicata and, thus,  the appeals  filed by the Appellants were not  maintainable. The High Court, however,  allowed the cross-objections filed by the Respondents herein in part.

       The High Court further refused to entertain an application filed by the  Appellants herein under Order XLI Rule 27 of the Code of Civil Procedure  for bringing on record inter alia a sale deed whereby and whereunder one of  the Respondents herein obtained assignment of 1/8th of the amount of  compensation in the year 1980 for a sum of Rs. 30,000/- holding that the  same was not relevant for disposal of the appeals  and in any event the same  should have been brought on records by the Appellants before the Reference  Court.

       The Appellants before the High Court, inter alia, had raised a  contention that as the proceeding arising out of reference having  remained  stayed at the instance of the Respondents for the period January, 1972 and  May, 1980; they were not entitled to  any interest which was  rejected  opining that the statutory provisions for grant of interest as contained under  Sections 28 and 34 of the Act being mandatory in nature cannot be waived.   

For computing the market value of the lands, the High Court  proceeded on the basis that the lowest category of residential developed  plots, as in the year 1965, should be taken to be  the base therefor i.e. @ Rs.  150/- per sq. yd. and directed deduction of 40% therefrom on the premise  that some time would have been necessary for excavating minor minerals  and to make the lands fully developed having regard to their tremendous  building potential.  The High Court also directed further deduction of 20%  from the wholesale price opining that Rs. 72/- per sq. yard would be a fair  market price for the acquired land in the year1965.  However, as regard the  lands which were the subject matter of acquisition in terms of notification  dated 24.10.1961,  relying on or on the basis of a decision of the High Court  in Rameshwar Solanki & Anr. Vs. Union of India & Anr. [57 (1995) DLT  410], further deductions @ 12% p.a. were directed to be made therefrom   working out the amount of compensation at Rs. 30/- per sq. yard  for lands  without China Clay and  Rs. 56 per sq. yard  with China Clay.  

Aggrieved by and dissatisfied with the said judgment and order, the  Union of India and the Delhi Development Authority are before us.

SUBMISSIONS :

       The learned Additional Solicitor General appearing for the Appellants   raised the following contentions in support of these appeals:

(i)     The nature of the lands being ’Gairmumkin Pahad’ and ’Banjar  Kadim’, as described in the entries made in the revenue record of rights for  the years 1907 and 1908, the Respondents were entitled to such amount of  compensation only payable to a holder of Bhumidari rights in terms of the  provisions of the Delhi Land Reforms Act and no other, wherefor Sections  5, 6, 7, 11, 22, 23 and 154 thereof were required to be read conjointly.           

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(ii)   China Clay being a minor mineral, in terms of  the provisions of the  Mines and Minerals (Regulation and Development) Act, 1957 as also the  Punjab Minor Mineral Rules, 1934, the same having vested in the Central  Government; no compensation was payable therefor.

(iii)   Judgments and awards made in favour of other claimants having only  evidentiary value, the principle of res judicata was wholly inapplicable.  

In any event as such judgments and awards were passed by  courts  having no jurisdiction therefor; the principle of res judicata was not  applicable.   

(iv)    Even if it be found that any amount of compensation was payable to  the Respondents herein, the High Court misdirected itself in passing the  impugned judgment  insofar as it failed to take into consideration that the  Respondents having made a claim of Rs. 25/- per sq. yard before the Land  Acquisition Collector were estopped and precluded from claiming any  higher amount in view of  Section 25 of the Land Acquisition Act, as it then  stood.  

(v)     In view of the fact that the Respondents themselves prayed for stay of  the proceedings before the Reference Court, no interest was payable  for the  period between 17th January, 1972 and 27th May, 1980.  

(vi)  The High Court failed to take into consideration the fact that the  Respondents themselves purchased the land at the rate of Rs. 6/- per sq. yard  in the year 1960 and 1/8th share of  the acquired land for a sum of  Rs.36,000/- in the year 1980 and the market value of the acquired lands  should have been determined only on that basis.

(vii)  In any view of the matter, as the appeal had been held to be not  maintainable by the  High Court applying the principles of res judicata, the  cross objections filed by the Respondents were also  not maintainable.   

       Mr. Harish Salve, Mr. P.P. Rao, and Mr. Ramamurthy,  learned senior  counsel appearing on behalf of the Respondents, on the other hand, would  support the impugned judgment.

       At the outset we may notice that Mr. Salve conceded that the  principles of res judicata and/ or issue estoppel were not applicable to the  fact of the present case.  The learned counsel would, however, point out that  the High Court in fact entertained the appeals preferred by the Appellants as  regard  : (a) ownership of China Clay, (b) value of the land and (c)  application of Section 25 of the Act.   

       It was furthermore submitted :

(i)     The Land Acquisition Act being an existing statute on the date of  coming into force of the Constitution of India the right to property was a  fundamental right in terms of Article 19(1)(f) and 31 of the Constitution of  India when the notifications under Section 4 were issued and, thus all the  procedural requirements laid down therein were required to be scrupulously  complied with in fulfillment of the legislative purpose.   

(ii)    Section 25(2) of the Act has no application in the fact of the matter as  the High Court has arrived at a finding that ’admittedly no notice under  Sections 9(3) and 10 was served on the Respondents’, in which event only  the bar envisaged under Section 25(2) of the Act, would be attracted.

(iii)   The Respondents having amended their Memo of Appeal as also the  Reference  in terms of Order VI Rule 17 of the Code of Civil Procedure, vis- ‘-vis Section 53 of the Act, the High Court had the requisite jurisdiction to  enhance the amount of compensation in favour of the Respondents.   

(iv)    The notifications issued by the Union of India were admissible in

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evidence as no other admissible evidence was available on record.   

(v)     In view of the fact that the Respondents are armed with the four  decrees passed in their favour by courts of competent jurisdiction, it is not  open to the Appellant to contend that Bhumidhars had no right in the minor  mineral China Clay.  Distinguishing the judgment of this Court in Gaon  Sabha and Anr. Vs. Nathi and Ors. [JT 2004 (4) SC 36 : (2004) 12 SCC  555], the learned counsel would submit that the Respondents therein were  not Bhumidhars and, thus,  the said decision must be held to have been  rendered in the fact situation obtaining therein.  In any event, the question as  regard title is not an issue herein as the matters in relation thereto are  pending consideration, if any, before the High Court.  

(vi)    Mineral right contained in the land did not vest in the Government in  terms of Section 41 of the Punjab Land Revenue Act, 1887 and the said right  would be presumed to have vested in the recorded tenants in terms of sub- section (2) of Section 42 thereof.  

(vii)   Punjab Minor Minerals Rules, 1934 and the Mines and Minerals   (Regulation and Development) Rules, 1957 or the Delhi Land Reforms Act,  1954 do not contain any provision divesting the right of the proprietor in the  minor minerals either expressly or by necessary implication and in that view  of the matter, the ownership on minor minerals continued to remain vested  in the landowners.   

FACTUAL BACKGROUND:

As the fact of the matter has been noticed at some length by a  Constitution Bench in Sardar Amarjit Singh Kalra (Dead) by Lrs. and Others  etc. vs. Pramod Gupta (Smt.) Dead) by Lrs. and Others etc. [(2003) 3 SCC  272], it may not be necessary for us to traverse the same over again.  Suffice  it to notice that the Respondents herein claimed their right, title and interest  in the lands in question measuring 4307 bighas, 17 biswas from one Gulab  Sundari who was said to be the proprietor of M/s Kesri Pottery Works  having a non-occupancy tenancy right therein.  It is not in dispute that  several proceedings had been initiated before different forums by Gulab  Sundari on the one hand and the Gaon Sabha of the village and the Union of  India, on the other, in respect of  the right, title and interest of the respective  parties after coming into force of the Delhi Land  Reforms Act.   

The aforementioned Gulab Sundari had allegedly been declared  Bhumidhar by the Deputy Commissioner of Delhi.

       It may be noticed that an intervention application has been filed on  behalf of Shri Madan Gopal Gupta and Shri Sudhir Jain contending that  there exists an inter se dispute as regard the ownership of the property in  question inasmuch as the applicants therein  are proprietors/owners thereof.   According to the  said applicants the principal dispute between the parties is  as to whether the said Gulab Sundari had had any right, title or interest as  Bhumidhar or otherwise in the said land and the same is pending  determination  before the High Court of Delhi in RFA Nos.309-310 of 1980.    Briefly stated the contention raised on behalf of the said applicants is that  a  lease was granted by the proprietor in the year 1939 and  the lessee in turn  granted a sub-lease in favour of  M/s Kesri Pottery Works,  a partnership  firm,  in the year 1942. The period of lease granted in favour of the lessee  having  expired, Gulab Sundari ceased to have any interest in the property.    In any event, a lessee or a sub-lessee could not have been declared  Bhumidhar in terms of Section 7 of the Delhi Land Reforms Act as only the  proprietor of the village was entitled thereto and in that view of the matter  the declaration of Bhumidhari rights in favour of Gulab Sundari was wholly  illegal and without jurisdiction.   

The Appellants, however, contend that Gulab Sundari or for that  matter any person other than the Central Government or the Gaon Sabha in

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view of the provisions contained in the Delhi Land  Reforms Act, 1954 and  other statutes, as referred to hereinbefore, did not derive any right, title and  interest in the minor minerals.  In any event,  right over mines and minerals  in proprietors being limited under the provisions of the Punjab Land  Revenue Act, Punjab Minor Minerals Rules, 1934 and the Mines and  Minerals (Regulation and Development) Act, 1957, they did not derive any  right to exploit the area for commercial purposes and in that view of the  matter, the Reference Court and the High Court acted illegally and without  jurisdiction in computing the amount of compensation in respect of mineral  rights on the premise that if they were entitled thereto.

PROCEEDINGS BEFORE THE REFERENCE COURT :

       From the claim applications filed before the Reference Court, it  appears that there were five claimants, namely, Smt. Promod Gupta, Shri  Rajiv Gupta, Sanjay Gupta, Smt. Sumangli Gupta and Shri LR. Gupta.   However, in the claim petitions Shri L.R.. Gupta did not put his signature.  The Reference Court in the proceedings under Section 18 of the Act framed  the following issues :

       "i) Whether the petitioners are the Bhumidars of  the land in dispute ?

       ii)  To what enhancement in the amount of  compensation, if any, are the petitioners entitled ?"    

It was noticed  :

"One set of claimants in the reference against each award  is Smt. Parmod Gupta, Sri Ram Gupta, Mehar Chand  Gupta and Babu Ram Gupta and they jointly have  claimed 1/4th share in the land acquired by these awards  and the other set of claimants against each award was  Surinder Gupta, who was substituted by Rattan Lall  Gupta in proceedings u/s 30/31 of the Act before Shri  P.L. Singla.  Now Rattan Chand Gupta has been  substituted by Rajiv Gupta, Sanjay Gupta, Parmod Gupta  and Sumangli Gupta.  The first set of claimants, Sri Ram  Gupta, Mehar Chand Gupta and Babu Ram Gupta stand  substituted by Rajiv Gupta, Sanjay Gupta, Shri L.R.  Gupta, Smt. Parmod Gupta and Sumangli Gupta being  the members of the L.R. Gupta HUF. They jointly have  1/8th share in the land acquired by both the awards."    

The aforementioned five claimants, viz.,  Smt. Promod Gupta, Shri  Rajiv Gupta, Sanjay Gupta, Smt. Sumangli Gupta and Shri LR. Gupta have  also been arrayed as Respondents in the appeals filed before the High Court  by the appellants herein.   

RES JUDICATA :

       The principle of res judicata has been applied by the High Court in  relation to two issues, viz., determination of market value and title of the  Respondents in respect thereof.

       We have noticed hereinbefore that Shri Salve conceded that the High  Court has committed an error in applying the principle of res judicata.   Having regard to the said concession, although it may not be necessary for  us to delve deep into the said question but in view of the order proposed to  be passed by us, we think it fit and proper to deal briefly therewith.

       A bare perusal of the judgments and awards passed by the Reference  Court would indicate that the amount of compensation was fixed on the  basis of some judgments passed by the High Courts in matters which were

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said to be involving similar lands.   

DETERMINATION OF MARKET VALUE:

While determining the amount of compensation payable in respect of  the lands acquired by the State, indisputably the market value therefor has to  be ascertained.  There exist different modes therefor.   

The best method, as is well-known, would be the amount which a  willing purchaser would pay to the owner of the land.  In absence of any  direct evidence, the court, however,  may take recourse to various other  known methods. Evidences admissible therefor inter alia would be  judgments and awards passed in respect of acquisitions of lands made in the  same village and / or neighbouring villages.  Such a judgment and award in  absence of any other evidence like deed of sale, report of expert and other  relevant evidence would have only evidentiary value.   

Therefore, the contention that as the Union of India was a party to the  said awards would not by itself be a ground to invoke the principles of res  judicata and/ or estoppel.  Despite such awards it may be open to the Union  of India to question the entitlement of the claimants \026 Respondents to the  amount of compensation and/ or the statutory limitations in respect thereof.   It would also be open to it to raise other contentions relying on or on the  basis of other materials brought on the records.  It was also open to the  Appellant to contend that the lands under acquisition are not similar to the  lands in respect whereof judgments have been delivered.  The area of the  land, the nature thereof, advantages and disadvantages occurring therein  amongst others would be relevant factors for determining the actual market  value of the property although such judgments/ awards, if duly brought on  records, as stated hereinbefore, would be admissible in evidence.   

Even if the Union of India had not preferred any appeal against the  said judgment and award; it would not be estopped  and precluded from  raising the said question in a different proceeding as in a given case it is  permissible in law to do the same keeping in view larger public interest.  

       In Government of West Bengal vs. Tarun K. Roy [(2004) 1 SCC 347]  repelling the contention that the State is estopped from maintaining an  appeal while from a similar matter which has been implemented no appeal  was filed, it was observed :           "28. In the aforementioned situation, the Division  Bench of the Calcutta High Court manifestly erred in  refusing to consider the contentions of the appellants on  their own merit, particularly, when the question as  regards difference in the grant of scale of pay on the  ground of different educational qualification stands  concluded by a judgment of this Court in Debdas  Kumar1. If the judgment of Debdas Kumar is to be  followed, a finding of fact was required to be arrived at  that they are similarly situated to the case of Debdas  Kumar which in turn would mean that they are also  holders of diploma in Engineering. They admittedly  being not, the contention of the appellants could not be  rejected. Non-filing of an appeal, in any event, would not  be a ground for refusing to consider a matter on its own  merits. (See State of Maharashtra v. Digambar.)

29. In State of Bihar v. Ramdeo Yadav wherein this

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Court noticed Debdas Kumar by holding: (SCC p.  494,  para 4)

"4. Shri B.B. Singh, the learned counsel for the  appellants, contended that though an appeal against the  earlier order of the High Court has not been filed, since  larger public interest is involved in the interpretation  given by the High Court following its earlier judgment,  the matter requires consideration by this Court. We find  force in this contention. In the similar circumstances, this  Court in State of Maharashtra v. Digambar and in State  of W.B. v. Debdas Kumar had held that though an appeal  was not filed against an earlier order, when public  interest is involved in interpretation of law, the Court is  entitled to go into the question.""

       The principle of res judicata would apply only when the lis was inter- parties and had attained finality in respect of the issues involved.  The said  principle will, however, have no application inter alia in a case where the  judgment and/ or order had  been passed by a court having no jurisdiction  therefor and / or  in a case involving pure question of law.  It will also have  no application in a case where the judgment is not a speaking one.                   

       The courts while determining the amount of compensation for  acquisition of land would be bound to take into consideration only the  materials brought on records.  However, factors which would be relevant for  determining the amount of compensation would vary from case to case and  no hard and fast rule can be laid down therefor.  The principle of res judicata  will, therefore, have no application in the fact of the present matter.

RIGHT OVER MINES & MINERALS:         It may be true that the principles of res judicata may be applicable in  respect of the question of title but even for the said purpose it was obligatory  on the part of the High Court to refer to the previous judgments whereupon  reliance had been placed by the Respondents for the purpose of arriving at a  decision as to whether they have been rendered by a competent court or not.   The question as to whether a civil court will have jurisdiction in respect of  declaration and / or cancellation of bhumidhari right was not adverted to by  the High Court.  We may notice that this Court in Nathi (supra) held that in  terms of the provisions of the Delhi Land Reforms Act, 1954 a person can  either be a Bhumidhar or Asami and there is no other class of proprietors or  tenure-holder after coming into force of the said Act.  It was further opined:

"11.1. Therefore, the legal position is absolutely clear  that a person can be either a bhumidhar or an asami of  the agricultural land in a village. He can also be an owner  of the property of the type which is enumerated in  Section 8 of the Act, like private wells, tanks, groves,  abadis, trees and buildings. Except for these, all other  kinds of lands and property would vest in the Gaon  Sabha. The proprietors and the concept of proprietors of  land stands totally abolished with the enforcement of the  Act. The respondents neither claimed to be bhumidhar  nor asami of the land which has been acquired. The  acquired land does not come within the purview of  Section 8 of the Act. In such circumstances the only  inference possible is that the land stood vested with the  Gaon Sabha on the date of the commencement of the Act  and it was the Gaon Sabha which was the owner thereof  and was entitled to receive the entire amount of  compensation."

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       From the impugned judgment of the High Court, it does not appear  that it had taken into consideration the relevant factors, viz., (i) implication  of the provisions of the Delhi Land Reforms Act vis-a-vis the nature of the  land and/ or the source of title; and (ii) the statutory effect as regard the  claim of the Respondent on the sub-soil mineral right in the light of several  existing statutes.

       Even if the proprietors and consequently the bhumidhars were entitled  to mineral right, independently, the statutory interdicts limit the user of such  mineral.  The question would have relevance not only for the purpose of  determination of the claim of ownership over such land and/ or mineral  embedded therein but also the nature and extent thereof.  Ordinarily, the  zamindar of the tauzi is the owner of the sub-soil mineral.  Such zamindars  must be holders of  revenue paying estate.  If the zamindars had granted a  lease, the extent of right of lessee would depend upon the terms of the lease  and in absence of an express grant the lessee would have no right to work  quarries or mines other than those which were open when he entered.  

       In F.F. Christian vs. Tekaitni Narbada Koeri and Others [(1914) CLJ  (20)  527] where a maintenance grant was made for life, it was held that  thereby no right of mines and minerals had been conveyed, observing :

"\005This, it is contended, shows that the grantor Moharaj  Singh was aware of the existence of mica mines when he  made the maintenance grant in 1894.  Let such  knowledge in his part be assumed for purposes of  argument; the fact is really inconclusive.  The view may  well be maintained that if he intended to vest all the  subsoil rights on the grantee, he would have explicitly  stated so, as he did in the mortgage instrument of the 2nd  December, 1889\005"

       In Bageswari Charan Singh vs. Kumar Kamakhya  Narain Singh  [(1931) ILR (X) PC 296 : AIR 1931 PC 30], referring to the statutory  presumption as between  zamindar and jagirdar, it was held that the former   must  be regarded as the owner of the minerals.  It was further observed :

"...Apart from the statutory presumption arising in this  case, there is a general presumption that the land in a  zamindari is the property of the zamindar, and held   under him\005"  

       Yet again in Ras Behari Mandal and Others vs. Raja Jagadish Chandra  Deo Dhaubal Deb,  [1936 IC (160) 114], the Patna High Court reiterated the  presumption that the lessor retains all rights in mines and quarries.  It also  noticed the decision of House of Lords in Great Western Railway Co. vs.  Carpalla United China Clay Co. Ltd. [(1910) AC 83], wherein a grant  reserving minerals was held to exclude a deposit of China clay despite the  fact that the  same was found near the surface.  

In Jagat Mohan Nath Sah Deo vs. Pratap Udai Nath Sah Deo and  Others [AIR 1931 PC 302], the Privy Council affirmed its earlier decision in  Gobinda Narayan Singh  vs. Sham Lal Singh [AIR 1931 PC 89] stating:

"A long series of recent decision by the Board has  established that if a claimant to subsoil rights holds under  the zamindar or by a grant emanating from him, even  though his powers may be permanent, heritable and  transferable, he must still prove the express inclusion of  the subsoil rights."             [See also H.V. Low and Company Ltd. vs. Raja Bahadur Jyoti Prosad

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Singh Deo AIR 1931 PC 299; Onkarmal Agarwalla and Others vs. Bireswar  Hazra and others, AIR 1959 Calcutta 195;  and Bageswari Charan Singh  (supra)]

       Yet again in Bejoy Singh Dudhoria vs. Surendra Narayan Singh [1929  ILR (56) Cal. 1], it was held that in absence of any reference to minerals or  to the subsoil; or to the right to excavate for making bricks or to anything in  the deed of lease, even the patni tenure-holder did not derive any right in the  mines and minerals.

       The provisions of Punjab Land Revenue Act govern the rights of the  tenants. Before us, the original deeds under which the right of  proprietorship, if any, said to be created in favour of Smt. Gulab Sundari, in  terms whereof she became occupancy tenant as also the deeds of sale/ grants  made in favour of her predecessors have not been produced, in absence  whereof it will not be prudent for this Court to venture to arrive at a  conclusion as regard the nature of the right of the proprietor or the lessee as  the case may be.  Even the judgments and decrees passed by the civil courts  and the revenue courts are not before us and, thus, this Court may only  briefly indicate the legal position, the application whereof would depend on  a finding of a court of competent jurisdiction as regard the nature and extent  of right.   

       Sections 41, 42(2), 60-C of the Punjab Land Revenue Act, 1887 read  as under:

"41. Right of the Government in mines and minerals. \026  All mines of metal and coal, and all earth-oil and gold  washings shall be deemed to be the property of the  Government for the purpose of the State and the State  Government shall have all powers necessary for the  proper enjoyment of the Government’s rights thereto.

42. Presumption as to ownership of forests, quarries and  waste land \026 (1) When in any record-of-rights completed  before the eighteenth day of November, 1871, it is not  expressly provided that any forest, quarry, unclaimed,  unoccupied, deserted or waste-land, spontaneous produce  or other accessory interest in land belong to the  landowners, it shall be presumed to belong to the  Government.

(2) When in any record-of-rights completed after that  date it is not expressly provided that any forest or quarry  or any such land or interest belongs to the Government, it  shall be presumed to belong to the landowners.

(3) The presumption created by sub-section (1) may be  rebutted by showing:-

(a) from the records or report made by the assessing  officer at the time of assessment; or

(b) if the record or report, is silent, then from a  comparison between the assessment of villages in which  there existed, and the assessment of villages of similar  character in which there did not exist, any forest or  quarry, or any such land or interest.

That the forest, quarry, land or interest was taken into  account in the assessment of the land-revenue.

(4) Until the presumption is so rebutted, the forest,  quarry, land or interest shall be held to belong to the  Government.

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60-C. Power to issue instructions. \026 The State  Government or the Financial Commissioner with the  approval of the State Government may, for the guidance  of Revenue-officers, from time to time issue executive  instructions relating to all matters to which the provisions  of this chapter apply, provided that such instructions shall  be consistent with the provisions of this Act and the rules  made thereunder."

       Section 60-C of the Punjab Land Revenue Act, 1887 empowers the  State to issue general instructions which are binding on the tenure-holders.   Pursuant to or in furtherance of the said power, the State of Punjab made  rules known as Punjab Minor Minerals Rules, 1934, Rules 3, 5 and 7  whereof read, thus:

"3. (1) No person shall quarry any minerals belonging to  Government from land, whether privately owned or  otherwise included within any revenue estate, or situated  in land the property of Government not included within  the limits of a revenue estate, unless he has first obtained  a permit in the manner hereinafter prescribed.

(2) A person, not being a permit-holder, who is found in  possession of any recently quarried mineral, shall be  deemed to have quarried the said mineral without a  permit, unless he furnishes proof to the satisfaction of the  Collector, that the said mineral was quarried by a permit- holder.

5. Any person being an owner or occupancy tenant of  agricultural land desiring to quarry in the revenue estate  within which his land is situated for use within such  revenue estate any mineral \026  

(a) for his own personal, agricultural or domestic  purposes, and not for alienation by sale or otherwise, nor  for contract work; or

(b) for construction, otherwise than by contract, a  hospital, school, dharamsala, well, piao, tank, mosque,  temple, or any other work of public utility or religious  worship, within the said estate,  

shall make an application in form M. 1 to the Collector  either directly or through the patwari of revenue estate.   If the land from which the mineral is to be quarried is not  in the applicant’s possession the application shall also be  signed by the owner or occupancy tenant thereof as a  token of consent.

7. (i) A person who desires to quarry minerals in  circumstances other than those related in paragraph 5  shall make his application to the Collector.

(ii) Every application by a contractor for quarrying  minerals on behalf of a Government Department or a  local body shall be made to the Collector in form M. 2,  through the Executive Engineer or other official of  corresponding authority concerned, or through the  Secretary of the local body concerned, as the case may  be.

(iii) Application in cases other than those provided for in  the rule 5 and in sub-rule (ii) of the rule, shall be made in

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form M. 3."

       Validity of the said Rules has not been questioned by the Respondents  in an appropriate proceeding.   

Rule 3 is not applicable in the instant case. But in terms of Rule 5  even if a mineral is found in the agricultural land, the same could be  extracted only for personal, agricultural or domestic purposes and not for  any commercial one including carrying out any contract.  Even for the  permissible  purposes, an application for grant of permit was necessary.   Assuming that the Bhumidhars were entitled to the mineral right in the lands  in question, minor minerals could have been extracted therefrom only for  their personal use and that too after obtaining a requisite permit in terms of  the Rules.

       Government of India Act came into force in the year 1935.  Entry 36  of List I of the Seventh Schedule contained in the Government of India Act  empowered the Governor General in Council to make laws relating to  regulation of mine and mineral development.  Pursuant to or in furtherance  of the said power, Mines and Minerals (Development and Regulation) Act,  1948 was enacted; in terms of Section 4 whereof mining operation could be  carried out only under a licence or lease to be granted in the manner  prescribed under the rules framed thereunder.   

       The Parliament thereafter enacted Mines and Minerals (Development  and Regulation) Act, 1957;  section 4 whereof reads as under:

"4. Prospecting or mining operations to be under  licence or lease.--(1)  No person shall undertake any  reconnaissance, prospecting or mining operations in any  area, except under and in accordance with the terms and  conditions of a reconnaissance permit or of a prospecting  licence or, as the case may be, of a mining lease, granted  under this Act and the rules made thereunder:                  Provided that nothing in this sub-section shall  affect any prospecting or mining operations undertaken  in any area in accordance with the terms and conditions  of a prospecting licence or mining lease granted before  the commencement of this Act which is in force at such  commencement:                Provided further that nothing in this sub-section  shall apply to any prospecting operations undertaken by  the Geological Survey of India, the Indian Bureau of  Mines, the Atomic Minerals Directorate for Exploration  and Research of the Department of Atomic Energy of the  Central Government, the Directorates of Mining and  Geology of any State Government (by whatever name  called), and the Mineral Exploration Corporation  Limited, a Government company within the meaning of  section 617 of the Companies Act, 1956:               Provided also that nothing in this sub-section shall  apply to any mining lease (whether called mining lease,  mining concession or by any other name) in force  immediately before the commencement of this Act in the  Union Territory of Goa, Daman and Diu.                 (1A) No person shall transport or store or cause to  be transported or stored any mineral otherwise than in  accordance with the provisions of this Act and the rules  made thereunder.                (2) No reconnaissance permit, prospecting licence

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or mining lease shall be granted otherwise than in  accordance with the provisions of this Act and the rules  made thereunder.                  (3) Any State Government may, after prior  consultation with the Central Government and in  accordance with the rules made under section 18,  undertake reconnaissance, prospecting or mining  operations with respect to any mineral specified in the  First Schedule in any area within that State which is not  already held under any reconnaissance permit,  prospecting licence or mining lease"    

       In terms of Section 14 of the said Act, Sections 5 to 13 will have no  application in relation to minor minerals.  Section 15 of the said Act  empowers the respective State Governments to make rules in respect of  minor minerals.  Sub-section (2) of Section 15 provides that so long as no  rules are framed by the State in terms of sub-section (1) of Section 15 the old  rules would continue to govern the field.  Pursuant to or in furtherance of the  said power, the State of Punjab framed rules known as Punjab Minor  Mineral Rules, 1964 in terms whereof the Punjab Minor Mineral Rules,  1934 were repealed.    In terms of Rule 2 of the 1934 Rules China Clay was  declared to be a minor mineral.  The State of Delhi, however, made rules  only in the year 1969.  Prior thereto, presumably the rules made by the State  of Punjab were governing the field.

       The attention of the High Court and the Reference Court was not  drawn to the aforementioned statutes and the statutory rules.  The  application of the said rules will go a long way in not only determining the  question of res judicata but also the question  as regard to the limited nature  of right the Respondents under the aforementioned statutes, if any.   Determination on the said issues would be relevant for the purpose of  computing the amount of compensation.

       "Ownership" in respect of an immovable property would mean a  bundle of rights.  Only a proprietor of a surface land will have the sub-soil  right.  But such rights may also have certain limitations.  Tenure holder or  sub-tenure holder and / or an agricultural tenant created for carrying out  agricultural operation per se would not become the owner of the sub-soil  right.  The right granted in favour of such sub-tenure holder, tenure holder or  the agricultural tenant would, thus, depend upon the concerned statute and/  or the relevant covenants contained in the grant.

       A three-Judge Bench of this Court in the State of Punjab vs. M/s  Vishkarma and Co. etc. [JT 1993 (1) SC 448],  construing the provisions of   Sections 31, 41 and 42 of the Punjab Land Revenue Act, 1887, held :

"Brick-earth with which we are concerned in the  present appeals, is a minor mineral was not disputed,  although it is not any of the mines or minerals covered by  Section 41 of the Revenue Act as would make it become  the property of the State. If the owner of such brick-earth  is the State of Punjab, liability to pay royalty for removal  of such brick-earth and to obtain permit or licence for  such removal, necessarily arises because of the operation  of the Act and the Rules. But the courts below have  concurrently found that the brick-earth concerned in the  suits out of which the present appeals have arisen was in  lands which formed the estates of the private owners and  as such the same belonged to such landowners. It is so  found on their reading of the entries in Wajib-ul-arz  pertaining to the concerned estates. That Wajib-ul-arz is a  document included in the record-of-rights cannot be  disputed since it contains the statements on matters

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envisaged under clauses (a) and (b) of sub-section (2) of  Section 31 of the Act. According to the courts below  Wajib-ul-arz document being record-of-rights of estates  completed after November 18, 1871, and there being  nothing expressly stated in them that the forest or quarry  or land or interest in the estates belong to the  Government, the lands in such estates including brick- earth in them shall be presumed to belong to the  concerned landowners as is declared in sub-section (2) of  Section 42 of the Revenue Act."

       From the aforementioned passage it is evident that the brick-earth was  the subject matter of  transfer in favour of the land owners which was  apparent from the entries in Wazib-ul-arz pertaining to the concerned  estates.   

       The entry in the Wazib-ul-arz in the instant case reads as under: " Section                Detail                Subject   10 Ownership of the Nazul land  or Forest or without ownership  or unpossessed or untitled or  non-residential land or Mines  or Ruins or old buildings or  self-fertile and no other land  which give natural fertility is  situated within the revenue  estate village Masood Pur.  Except the 29 bighas land of road  not any other land of Forest,  Mines, buildings, Nazal, self- fertile, Marbal, metals, stones,  coal, sand is under the ownership  of the Government.  But within  the boundires of this village  mountain is stated to be existed.   If the Government wants to take  the stone then the Govt. will not  liable to pay the price of that  stone.  If any mine is found then  the same will be property of the  Government.                                                                                            "

       The evidentiary value of wazib-ul-arz is no longer res integra in view  of the decisions cited at the bar including Prem Chand vs. State of Haryana  [AIR 1972 (P&H) 50 (DB)];  Man Chand vs. State of Haryana [74 (1972)  PLR 508], Chunni Lal vs. State of  Haryana [73 (1971) PLR 159], Gram  Panchayat vs. State of  Himachal Pradesh [AIR 1973 HP 7].   

       The said decisions lay down the principle that in absence of any entry  made in favour of the Government, with respect to mines and minerals a  presumption shall be drawn that the same belongs to the landowner being a  tenure-holder.

       We have noticed hereinbefore a large number of decisions of the  Judicial Committee and  different High Courts which lay down the principle  that only the landowners  have  subsoil rights  but so far as the sub- tenureholders and others are concerned no such presumption shall be raised  unless it is proved from the express covenants made in the grant and/or  the  deed of assignment or sale that such right has expressly been conveyed.   Section 42(2) of the Punjab Land Revenue Act merely states that in absence

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of any entry made in the record-of-rights after 18.11.1971, it shall be  presumed that the right in any forests, quarries or any such land or interest   would be in the landowners.  ’Wazib-ul-arz’ also indicates the custom  prevailing in the village.  The entry in the Wazib-ul-arz is categorical about  the fact that the Government is not the owner of any forest, mines, buildings  nazul, self-fertile, marble, metals, stones, coal  or sand.  It, however,  categorically states that there are mountains in the village and the  Government can extract stones without paying any price therefor.   It further  categorically states that if any mine (in future) is found, the same would be  the property of the Government.  The entry ex facie does not show that china  clay as a minor mineral was available in the land in question.  Existence of  the said mineral  having not been expressly recorded in the record of rights,  no presumption can be raised that the grantor had an intention to pass on title  of the subsoil in relation to china clay in favour of the grantee.  It is one  thing to say that the Government or the State did not have any right over the  minor minerals per se but it is another thing to say that the Government did  not have any right in respect of the minerals or metals which had been  mentioned therein but in the event a new mine is found, the same would vest  in the Government.  The presumption envisaged under sub-section (2) of  Section 42, therefore,  in our considered opinion may not be raised in favour  of the grantee as it is not shown that mines of china clay were existing at the  relevant time.  The expression ’Mine’ having regard to its definition  contained in Section 2(j) of the Mines Act, 1952 is of wide  import.  In the  village in question there may exist one mine for extracting one mineral at  one point of time but other mines containing either the same or different  minerals might not be existing in other parts of the same village at the  relevant time and  may be found in other part of the village at the later part  of time. The expression ’mine’, thus, may have to be given its natural  meaning having regard to the purpose for which such entries are made.  It is  true that the legislature used two different phraseologies ’shall be presumed’  and ’may be presumed’ in Section 42 of the Punjab Land Revenue Act and  furthermore although provided for the mode and manner of rebuttal of such  presumption as regards right to mines and minerals said to be vested in the  Government vis-‘-vis absence thereof in relation to the lands presumed to be  retained by the landowners but the same would not mean that the words  ’shall presume’ would be conclusive.  The meaning of expressions ’may  presume’ and ’shall presume’ have been explained in Section 4 of the Indian  Evidence Act, 1872, from a perusal whereof  it would be evident  that  whenever it is directed that the court shall presume a fact it shall regard such  fact as proved unless disproved.   In terms of the said provision,  thus, the  expression ’shall presume’ cannot be held to be synonymous with  ’conclusive proof’.  It is interesting to note that this Court in Raja Rajinder  Chand vs. Mst. Sukhi and Others [AIR 1957 SC 286] whereupon Mr. Rao  has placed strong reliance observed :

"\005Whether  the statutory presumption attaching to an  entry in the Wajib-ul-arz has been properly displaced or  not must depend on the facts of each case.  In cases under  our  consideration, we hold, for the reasons already given  by us, that  the entries in the Wazib-ul-arz with regard to  the right of the Raja in respect of chil trees standing on  cultivated and proprietary lands of the adna-maliks, do  not and cannot show any existing custom of the village,  the right being a sovereign right; nor do they show in  unambiguous terms that the sovereign right was  surrendered or relinquished in favour of the Raja.  In our  view, it would be an unwarranted stretching  of the  presumption to hold that the entries in the Wajib-ul-arz  make out a grant of a sovereign right in favour of the  Raja: to do so would be to hold that the Wajib-ul-arz  creates a title in favour of the Raja which it obviously  cannot".

       The said decision, therefore, is an authority for the proposition that no  title can be claimed on the basis of an entry made in the revenue records as it

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is for the grantee to show that such title has been conveyed to him by the  owner thereof.

       We may, however, point out that in M/s Vishkarma and Co.  (supra),  the effect of the provisions of the Punjab Minor Minerals Rules, 1934 or the  provisions of the Mines and Minerals (Regulation & Development) Act,  1957 did not fall for consideration.

       In Bheemagari Bhaskar and others Vs. Revenue Divisional Officer,  Bhongir and others [2002 (1) ALT 159] the Division Bench of the Andhra  Pradesh High Court, wherein one of us was a member, while analyzing the  provisions of the A.P. (A.A.) Estates (Abolition and Conversion into  Ryotwari) Act, 1948 vis-‘-vis Mines and Minerals (Regulation and  Development) Act, 1957 and A.P. Minor Mineral Concession Rules, 1966,  held that the agriculturists could not have had any right over minor mineral  stating:

"In terms of Entry 54 of List I of the VII Schedule of the  Constitution of India, by enacting the said Act, the  Parliament has taken over control over mines and  minerals.  Keeping in view the declaration made in that  regard under Sections 18 and 20 thereof, as envisaged in  Entry 54 of List I of the VII Schedule of the Constitution  of India, the State has no legislative competence even to  make any law in this regard, far less grant any settlement  except in terms of the provisions of the said Act, for the  rules framed therein."

       In Shakuntala Devi Vs. Kamla & Ors. [JT 2005 (4) SC 315], this  Court referring to various decisions of this Court including Mathura Prasad  Bajoo Jaiswal & Ors. Vs. Dossibai N.B. Jeejeebhoy [(1970) 1 SCC 613],  Chief Justice of Andhra Pradesh & Ors. Vs. L.V.A. Dixitulu & Ors. [(1979)  2 SCC 34], Ashok Leyland Ltd. Vs. State of T.N. & Anr. [(2004) 3 SCC 1],  Management of M/s. Sonepat Cooperative Sugar Mills Ltd. Vs. Ajit Singh  [JT 2005 (2) SC 481] observed :

"15. From the above principles laid down by this Court,  it is clear that if the earlier judgment which is sought to  be made the basis of res judicata is delivered by a court  without jurisdiction or is contrary to the existing law at  the time the issue comes up for reconsideration such  earlier judgment cannot be held to be res judicata in the  subsequent case unless, of course, protected by any  special enactment."

       In Ramnik Vallabhdas Madhvani and Others Vs. Taraben Pravinlal  Madhvani  [(2004) 1 SCC 497], in which one of us (S.B. Sinha, J.) was a  member, it was observed:

"\005Principles of res judicata is a procedural  provision.  The same has no application where  there is inherent lack of jurisdiction."

       The question of application of principle of res judicata, thus, is  required to be considered afresh in the light of the discussions made  hereinbefore.

       For the views we have taken, it is axiomatic, the principles of res  judicata shall have no application in respect of the cross-objections filed by  the Respondents.  In that view of the matter, the decision of this Court in  Municipal Corporation of Delhi and Others Vs. International Security &  Intelligence Agency Ltd. [(2004) 3 SCC 250], relied upon by the Additional

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Solicitor General, is not applicable.

PUNJAB LAND REVENUE ACT AND DELHI LAND REFORMS ACT:

       The lands in question indisputably were governed by the Punjab Land  Revenue Act, 1887 and the Punjab Tenants (Security of Tenure) Act, 1950.   The Punjab Land Revenue Act 1887 is still applicable save and except those  provisions which are inconsistent with the provisions of the Delhi Land  Reforms Act.  The claim of the Respondents is stated in their counter- affidavit filed in this Court.  The Respondents claimed themselves to be  occupancy tenants.   

       Punjab Land Revenue Act, 1887 was enacted to amend and declare  the law in force in the State of Punjab with respect to "making and  maintenance of record-of-rights in land, the assessment and collection of  land-revenue and other matters relating to land and the liabilities incident  thereto".  The said Act provides for preparation of record of rights of  different types of land held by the owners or tenure holders.  For our purpose  the definitions of "estate", "land-owner" and "holding" may be noticed :

"(1) "estate" means any area \026  

(a)     for which a separate record-of-rights has been  made; or

(b)     which has been separately assessed to land  revenue, or would have been so assessed if the land- revenue had not been released, compounded for or  redeemed; or

(c)     which the State Government may, by general rule  or special order, declare to be an estate;

(2)     "land-owner" does not include a tenant or an  assignee of land-revenue, but does include a person to  whom a holding has been transferred or an estate or  holding has been let in farm, under this Act for the  recovery of an arrear of land-revenue or a sum  recoverable as such an arrear and every other person not  hereinbefore in this clause mentioned who is in  possession of an estate or any share or portion thereof, or  in the enjoyment of any part of the profits of an estate;

(3)     "holding" means a share or portion of an estate  held by one land-owner or jointly by two or more land- owners;"

       Section 61 of the Land Revenue Act provided for security for  payment of land revenue.  In terms of the provisions thereof,  the land  owners need not necessarily be the owners of the land.  The term "land- owner" is a wider term and it does not include a tenant as specifically  mentioned in the definition.

       What was the actual status of Smt. Gulab Sundari vis-‘-vis her  predecessors is not known.   

       Section 31 of the Punjab Land Revenue Act, 1887 provides for  preparation of record of rights and other documents in respect of an estate  including the nature and extent of the interest of the land owners and the  conditions and liabilities attached thereto.  Section 32 provides for special  provision for record of rights in the situations specified therein.  Section 41  provides that minerals mentioned therein shall vest in the Government.   Section 42, however, provides that when such right has not been stated to be  vested in the land owners, the same would be presumed to be belonging to

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the Government although such presumption is not absolute.  Sub-section (2)  of Section 42, however, states that when in any record of rights it is  expressly provided that any forest or quarry or any such land or interest does  not belong to the Government, the same shall be presumed to be belonging  to the land owner.

       In the aforementioned backdrop, the provisions of the Delhi Land  Reforms Act are required to be  interpreted considered.

       The Delhi Land Reforms Act, 1954 was enacted to provide for  modification of zamindari system so as to create an uniform body of peasant  proprietors without intermediaries for the unification of the Punjab and Agra  systems of tenancy laws in force in the State of Delhi and to make provision  for other matters connected therewith.

       In terms of Section 2 of the said Act, the Punjab Tenancy Act, 1887 as  also the Punjab Land Revenue Act, 1887 are repealed insofar as they  are  inconsistent with the said Act, the effect whereof would be that the right of  the land owners, proprietors, zamindars or other superior landlords which  were conferred upon them under the provisions of the said two Acts would  no longer exist.  The Delhi Land Reforms Act contemplates creation of a  new right in two classes of the land owners, viz., only one class of tenure  holder, that is to say, Bhumidhar and one class of sub-tenure holder, that is  to say, Asami.

       We in this case are concerned with  bhumidhari rights.  A bhumidhar  would be a person who is liable to pay land revenue directly to the State.   Section 5 provides that every person belonging to any of the following  classes shall be a bhumidhar and shall have all the rights and be subject to all  the liabilities conferred or imposed upon a bhumidhar by or thereunder:

"(a) a proprietor holding sir or khudkasht land a  proprietor’s grove holder, an occupancy tenant under  section 5 of the Punjab Tenancy Act, 1887, paying rent at  revenue rates or a person holding land under Patta  Dawami or Istamrari with rights of transfer by sale, who  are declared Bhumidhars on the commencement of this  Act;

(b) every class of tenants other than those referred to in  clause (a) and sub-tenants who are declared Bhumidhars  on the commencement of this Act; or

(c) every person who, after the commencement of this  Act, is admitted to land as Bhumidhar or who acquires  Bhumidhari rights under any provisions of this Act."

       Section 7 provides for termination of rights of individual proprietors  as specified therein.  Such rights vest in Gaon Sabha.  Section 11 provides  for declaration of bhumidhari rights by the Deputy Commissioner.  Such  declaration is said to have been made in case of the aforementioned Smt.  Gulab Sundari but it is not on record of the case.  The effect of such  declaration is also required to be considered for the purpose of determining  the questions arising in these matters.  Section 22 confers a right upon a  bhumidhar in exclusive possession of all land comprised in his respective  holding so as to enable him to use the land for any purpose connected with  agriculture, horticulture or animal husbandry which includes pisciculture and  poultry farming and to make any improvement thereupon.  Section 23  provides use of holding for industrial purposes.  Section 154 provides for  vesting of certain lands in Gaon Sabha.

       By Section 185 a hierarchy of courts has been created for the purpose  of determination of the question relating to rights and liabilities regarding  such lands in terms whereof the jurisdiction of the Civil Court is ousted for

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certain purposes.

       Interpretation of the provisions of the Delhi Land Reforms Act came  up for consideration before this Court in Nathi (supra).  It opined that the  Act contemplates only bhumidhari or asami right of an agricultural land in a  village subject of course to the right conferred upon them in terms of Section  8 of the Act.  It was held that Gair mumkin pahar land is not a khudkasht  land.

       It may be true that as  submitted by the learned counsel for the  Respondents  that in that case the Respondent was not favoured with any  declaration of the bhumidhari right in terms of Section 11 of the Act nor the  question of the effect of the provisions thereof as regard the right of the land  owner in relation to mines and minerals was raised, but there cannot be  doubt that therein the law as regard extent of right of a Bhumidhar has been  delineated.   

The Act maintains a silence about the right of the land owners in  respect of mines and minerals.  In absence of the documents which would  throw a light on the right of Smt. Gulab Sundari, we think that it would not  be proper for us to determine the question finally and we must leave the  matter at the hands of the High Court for the said purpose.  We may,  however, observe that such a question may have to be determined having  regard to the provisions contained in  Article 31A of the Constitution of  India vis-‘-vis the repeal of the Punjab Land Tenure Act on  one hand and  the Delhi Land Reforms Act, on the other.  It is  possible to hold that as by  reason of the said provision only limited rights were conferred upon them,  all other rights stood excluded.  We, however, would clarify that as the said  question has not been raised specifically before us and keeping in view of  the fact that Smt. Gulab Sundari might not have any proprietary rights over  mines and minerals, as had been claimed, having regard to the provisions of  the Punjab Tenants (Security of Tenure) Act, we would refrain ourselves  from determining the question at this stage.

       We may, however, notice a few decisions cited at the bar.   

       In Atma Ram Vs. State of Punjab [AIR 1959 SC 519], this Court  considered the conflict of opinion between two Full Benches of the High  Court of Punjab in Bhagirath Ram Chand Vs. State of Punjab, AIR 1954  Punj 167 and State of Punjab Vs. Keshar Singh [AIR 1959 Punj 8], holding  that the view taken by the earlier Full Bench was correct.  It was stated::

"12\005 The judgment of the Full Bench on this part of the  case is based entirely upon the definition of an estate, as  contained in the Punjab Land Revenue Act, set out  above. It has not stopped to consider the further question  why a holding, which is a share or a portion of an estate,  as defined in the Punjab Act, should not partake of the  characteristics of an estate. Keeping in view the  background of the legislative history and the objective of  the legislation, is there any rational reason for holding  that the makers of the Constitution thought of abolishing  only intermediaries in respect of an area constituting one  entire estate but not of a portion thereof? On the other  hand, as indicated above, they have used the expression  "estate" in an all-inclusive sense. They have not stopped  at that; they have also added the words "or any rights  therein". The expression "rights" in relation to an estate  again has been used in a very comprehensive sense of  including not only the interests of proprietors or sub- proprietors but also of lower grade tenants, like raiyats or  under-raiyats, and then they added, by way of further  emphasizing their intention, the expression "other  intermediary", thus, clearly showing that the enumeration  of intermediaries was only illustrative and not

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exhaustive. If the makers of the Constitution have, thus,  shown their intention of saving all laws of agrarian  reform, dealing with the rights of intermediaries,  whatever their denomination may be, in our opinion, no  good reasons have been adduced in support of the view  that portions or shares in an estate are not within the  sweep of the expression "or any rights therein". A recent  decision of this Court in the case of Ram Narain Medhi  v. State of Bombay dealt with the constitutionality of the  Bombay Tenancy and Agricultural Lands (Amendment)  Act, 1956, which contains similar provisions with a view  to doing away with intermediaries, and establishing  direct relationship between the State and tillers of the  soil. In that case also, the contention had been raised that  the expression "estate" had reference to only alienated  lands and not to unalienated lands, and this Court was  invited to limit the meaning of the expression in the  narrower sense\005."

We are not suggesting, as at present advised, that mineral rights or  rights over minerals  can in no situation remain in the hands of the private  individuals.  There may be cases where having regard to the statutory  provisions, the mineral rights may continue to remain in the hands of the  private owners.  But while examining the question of computing the  quantum of compensation, the Courts are required to bear in mind the extent  of such rights and in particular the statutory provisions which prohibit  carrying out mining operations without obtaining appropriate mining lease,  prospective licence or permits. The Courts must also bear in mind that even  in a case where owners are entitled to the minerals having regard to the  provisions contained in the Punjab Minor Mineral Rules, 1934, the amount  of compensation would be much less and with the acquisition of land the  right to use the minerals would come to an end.  Compensation for such  minerals may not be computed on the basis of  the profits earned by a  mining lessee having a valid mining lease therefor.  Furthermore, a person  having a right to use mines and minerals for his personal use and not for sale  will still have to obtain an appropriate permit in terms of the statutory  provisions.  It may not be out of place to notice that right to receive royalty  is a mineral right as has been held by Wanchoo, J. in Hingir Rampur Coal  Co. Ltd. vs. State of Orissa [1961 (2) SCR 537] [See also India Cement Ltd.  and Others Vs. State of Tamil Nadu and Others, (1990) 1 SCC 12]

Mineral may be found in the mineral-bearing land. Mineral-bearing  land may, thus, contain mineral as the product of nature.  

       Thus, in a case it may be theoretically possible for the State to grant a  mining lease of quarry or permit, in favour of an applicant in respect of an  area over which a mineral right is also held by a private owner but in that  event the private owner would be only entitled to royalty.  The legislative  intent contained in the 1957 Act envisages  that even in certain cases the  Central Government or the State Government, as the case may be, in the  event of their undertaking of mining operations from the land belonging to  the private owners may have to pay royalty to them.   The rate of royalty,  however, will be limited to the amount prescribed in the 1957 Act or the  rules framed thereunder  

       The amount of compensation, therefore, in view of the statutory  provisions will depend upon several factors, as noticed hereinbefore.  In any  event, the profit earned by illegal mining i.e. carrying on mining operations   contrary  the 1957 Act or the rules framed thereunder, would by no means be  a safe criteria for determining the amount of compensation.      

COMPENSATION         We have earlier noticed that one of the modes of computing the  market value may be based on  a judgment or award in respect of acquisition

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of similar land, subject of course to such increase or decrease thereupon as  may be applicable having regard to the accepted principles laid down  therefor and as may be found applicable.

       We may notice some precedents in this behalf:

       In Delhi Development Authority vs. Bali Ram Sharma and Others  [(2004) 6 SCC 533], 5% increase in the market value was granted having  regard to the fact that the notification in question was issued about five years  after the notification involved in the earlier judgment.

In Land Acquisition Officer, Kammarapally Village, Nizamabad  District, A.P. vs. Nookala Rajamallu and Others [(2003) 12 SCC 334], it  was observed  :      

"Where large area is the subject-matter of acquisition,  rate at which small plots are sold cannot be said to be a  safe criterion\005"           It was further observed:

"\005While determining the market value of the land  acquired it has to be correctly determined and paid so  that there is neither unjust enrichment on the part of the  acquirer nor undue deprivation on the part of the owner.  It is an accepted principle as laid down in the case of  Vyricherla Narayana Gajapatiraju v. Revenue Divisional  Officer that the compensation must be determined by  reference to the price which a willing vendor might  reasonably expect to receive from the willing  purchaser..."

       In Lila Ghosh (Smt.) (Dead) Through LR Tapas Chandra Roy vs.  State of W.B. [(2004) 9 SCC 337], a Division Bench of this Court has  observed that if a plot is large, then there must be depreciation for largeness,  as large plots always fetch less than small plots.  [See also Viluben Jhalejar  Contractor (Dead) By Lrs. vs. State of Gujarat, (2005) 4 SCC 789]

       In V. Hanumantha Reddy (Dead) by Lrs. vs. Land Acquisition Officer  & Mandal R. Officer [(2003) 12 SCC 642], the law is stated in the following  terms : "\005It is now a well-established principle of law that the  land abutting the national highway will fetch far more  higher price than the land lying interior\005"

       It is also well-settled that for the purpose of  determining the market  value of the acquired lands, the comparable sales method i.e. the lands  sought to be compared must be similar in potentiality and nature may be  adopted. [See Panna Lal Ghosh and Others vs. Land Acquisition Collector  and Others \026 (2004) 1 SCC 467].            It is also trite to state that the market value of agricultural land is  lower than that of land suitable for commercial purposes  [See Om Prakash  (Dead) By LRs. and Others vs. Union of India and Another \026 (2004) 10 SCC  627] .

The Reference Court, it is trite, has to apply the comparable sales  method as also the situation of the land which is to be appreciated keeping in  view the fact as to whether acquired land is similar to any land sold in the  vicinity.

       In Shaji Kuriakose and Another Vs. Indian Oil Corpn. Ltd. and Others  [(2001) 7 SCC 650], this court observed:

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"3. It is no doubt true that courts adopt comparable sales  method of valuation of land while fixing the market value  of the acquired land. While fixing the market value of the  acquired land, comparable sales method of valuation is  preferred than other methods of valuation of land such as  capitalisation of net income method or expert opinion  method. Comparable sales method of valuation is  preferred because it furnishes the evidence for  determination of the market value of the acquired land at  which a willing purchaser would pay for the acquired  land if it had been sold in the open market at the time of  issue of notification under Section 4 of the Act. However,  comparable sales method of valuation of land for fixing  the market value of the acquired land is not always  conclusive. There are certain factors which are required  to be fulfilled and on fulfilment of those factors the  compensation can be awarded, according to the value of  the land reflected in the sales. The factors laid down inter  alia are: (1) the sale must be a genuine transaction, (2)  that the sale deed must have been executed at the time  proximate to the date of issue of notification under  Section 4 of the Act, (3) that the land covered by the sale  must be in the vicinity of the acquired land, (4) that the  land covered by the sales must be similar to the acquired  land, and (5) that the size of plot of the land covered by  the sales be comparable to the land acquired. If all these  factors are satisfied, then there is no reason why the sale  value of the land covered by the sales be not given for the  acquired land. However, if there is a dissimilarity in  regard to locality, shape, site or nature of land between  land covered by sales and land acquired, it is open to the  court to proportionately reduce the compensation for  acquired land than what is reflected in the sales  depending upon the disadvantages attached with the  acquired land\005."

[See also P. Ram Reddy and Others Vs. Land Acquisition Officer,  Hyderabad Urban Development Authority, Hyderabad and Others, (1995) 2  SCC 305]

       The Courts will also have to take into consideration the enormity of  the financial implication of enhancement in view of the size of the land  acquired for a particular project.

       In Viluben Jhalejar Contractor (supra), this Court held :                  "18. One of the principles for determination of the  amount of compensation for acquisition of land would be  the willingness of an informed buyer to offer the price  therefor. It is beyond any cavil that the price of the land  which a willing and informed buyer would offer would  be different in the cases where the owner is in possession  and enjoyment of the property and in the cases where he  is not.  

19. Market value is ordinarily the price the property may  fetch in the open market if sold by a willing seller  unaffected by the special needs of a particular purchase.  Where definite material is not forthcoming either in the  shape of sales of similar lands in the neighbourhood at or  about the date of notification under Section 4(1) or  otherwise, other sale instances as well as other evidences  have to be considered.

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20. The amount of compensation cannot be ascertained  with mathematical accuracy. A comparable instance has  to be identified having regard to the proximity from time  angle as well as proximity from situation angle. For  determining the market value of the land under  acquisition, suitable adjustment has to be made having  regard to various positive and negative factors vis-‘-vis  the land under acquisition by placing the two in  juxtaposition. The positive and negative factors are as  under:

Positive factors                        Negative factors (i) smallness of size   (i) largeness of area

(ii) proximity to a road        (ii) situation in the interior at a  distance from the road

(iii) frontage on a road        (iii) narrow strip of land with  very small frontage compared  to depth

(iv) nearness to developed area (iv) lower level requiring  the depressed portion to  be filled up

(v) regular shape       (v) remoteness from developed  locality

(vi) level vis-‘-vis land under acquisition     (vi) some  special disadvantageous factors which would deter a  purchaser

(vii)   special value for an owner of an adjoining property  to whom it may have some very special advantage  

21. Whereas a smaller plot may be within the reach of  many, a large block of land will have to be developed  preparing a layout plan, carving out roads, leaving open  spaces, plotting out smaller plots, waiting for purchasers  and the hazards of an entrepreneur. Such development  charges may range between 20% and 50% of the total  price."

       It was further observed :                            "24. The purpose for which acquisition is made is also a  relevant factor for determining the market value. In  Basavva v. Spl. Land Acquisition Officer7 deduction to  the extent of 65% was made towards development  charges."  

       The Court noticed a large number of decisions wherein deductions  had been made at different rates varying from 20% to 53%.  The Court  also  noticed an earlier decision of this Court in K.S. Shivadevamma vs. Assistant  Commissioner and Land Acquisition Officer [(1996) 2 SCC 62], wherein it  was opined :  "It is then contended that 53% is not automatic but  depends upon the nature of the development and the  stage of development. We are inclined to agree with the  learned counsel that the extent of deduction depends

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upon development need in each case. Under the Building  Rules   53% of land is required to be left out. This Court  has laid as a general rule that for laying the roads and  other amenities 33-1/3% is required to be deducted.  Where the development has already taken place,  appropriate deduction needs to be made. In this case, we  do not find any development had taken place as on that  date. When we are determining compensation under  Section 23(1), as on the date of notification under Section  4(1), we have to consider the situation of the land  development, if already made, and other relevant facts as  on that date. No doubt, the land possessed potential  value, but no development had taken place as on the date.  In view of the obligation on the part of the owner to hand  over the land to the City Improvement Trust for roads  and for other amenities and his requirement to expend  money for laying the roads, water supply mains,  electricity etc., the deduction of 53% and further  deduction towards development charges @ 33-1/3%, as  ordered by the High Court, was not illegal."

[See also Basavva (Smt.) and Others vs. Spl. Land Acquisition Officer and  Others - [(1996) 9 SCC 640]  

       The High Court, as has been noticed hereinbefore, without assigning   any reason discarded the method of valuation adopted by the reference court.   Before the reference court, the Respondents herein only relied upon the  judgments and awards granting compensation for acquisition of similar  lands.  The High Court while allowing an application for adduction of  additional evidence  referred only  to certain notifications issued by the  Union of India in the year 1965 which were meant for the residential plots  whereby allegedly the market value was stated to be 150 per sq. yd. for   lands situated at Vasant Vihar wherefor certain deductions were made @  12% p.a. therefrom in respect of the lands acquired under the notification  dated 24.10.1961.  

       We fail to understand as to how or on  what basis, the High Court took  recourse to the said method wholly ignoring the other materials on records.  

       We may also observe that the High Court failed to take into  consideration that recourse to such circulars may be impermissible and  particularly in the facts and circumstances of the present  case.

       In Jawajee Nagnatham vs. Revenue Divisional Officer, Adilabad, A.P.  and Others [(1994) 4 SCC 595], this Court observed  :

"\005The market value of the land for proper stamp duty  has to be determined as per the law under Section 47-A  itself. That view was followed by another learned Single  Judge in P. Sasidar v. Sub-Registrar  It is, therefore,  clear that the Basic Valuation Register prepared and  maintained for the purpose of collecting stamp duty has  no statutory base or force. It cannot form a foundation to  determine the market value mentioned thereunder in  instrument brought for registration. Equally it would not  be a basis to determine the market value under Section 23  of the Act, of the lands acquired in that area or town or  the locality or the taluk etc. Evidence of bona fide sales  between willing prudent vendor and prudent vendee of  the lands acquired or situated near about that land  possessing same or similar advantageous features would  furnish basis to determine market value."

       See also in Krishi Utpadan Mandi Samiti, Sahaswan, District Badaun  through its Secretary vs. Bipin Kumar and Another [(2004) 2 SCC 283].

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       We may at this juncture notice a decision of this Bench relied upon by  Mr. Harish Salve being DDA and Others vs. Joginder S. Monga and Others  [(2004) 2 SCC 296].   Therein this Court was not concerned with valuation  of land under the Land Acquisition Act.   In that case DDA granted lease in  favour of a cooperative society in terms of the Delhi Development Act, 1957  and the rules framed thereunder, known as the Delhi Development Authority  (Disposal of Developed Nazul Land) Rules, 1981.  Some members of the  cooperative society intended to sell the land wherefor the DDA was entitled  to recover a portion of unearned increase in value i.e. difference between the  premium paid and market value of plot at the time of sale.  The Government  of India, however without enforcing any increase in the sale price of the land  extended the validity of the land rates in force till 31.3.1996 by a circular  dated 11.11.1994.  A case of discrimination was raised by Monga vis-‘-vis  one Rajiv Gupta.  Although the latter received the benefit of priority under  the policy of conversion from leasehold to freehold, the respondent therein  was denied the same.  The said decision, therefore, will have no application  to the fact of the present matter, as therein 50% of the  unearned increase  was to be paid to the DDA in terms of the covenant contained in the deed of  lease;  and while determining the amount DDA was required to take into  account the amount of consideration  specified in the agreement and/or  clearance certificate issued by the Income Tax Officer, which was not done.    

       In Shakuntalabai (Smt.) and Others vs. State of Maharashtra [(1996) 2  SCC 152], this Court  categorically held that if the owner himself has  purchased some lands,  the same should be taken into consideration having  regard to the admission on market value of the land made by him stating :

"5. It is seen that the reference court blissfully  overlooked the admission of the owner on the surmise  that it is an estimate made by the claimant and the  evidence of the sale deeds under Exs. 38 and 44 being  prevailing prices, it acted thereon and determined the  compensation. The approach of the reference court is  clearly illegal and that of the High Court is quite correct  and it was the only way in which the market value could  be determined on the face of the evidence on record. The  reference court committed manifest error in determining  the compensation on the basis of sq. ft. When lands of an  extent of 20 acres are offered for sale in an open market,  no willing and prudent purchaser would come forward to  purchase that vast extent of land on sq. ft. basis.  Therefore, the reference court has to consider the  valuation sitting on the armchair of a willing prudent  hypothetical vendee and to put a question to itself  whether in given circumstances, he would agree to  purchase the land on sq. ft. basis. No feat of imagination  is necessary to reach the conclusion. The answer is  obviously no. This aspect of the matter was totally  ignored by the reference court and mechanically accepted  the two sale deeds to enhance the compensation at a  value of nearly Rs      35,000 per acre. In State of M.P. v.  Shantabhai and V.M. Salgoacar & Brother Ltd. v. Union  of India, this Court had accepted the principle that when  the owner himself has purchased the land under  acquisition, the consideration mentioned in the sale deed  would form the basis to determine the market value.  Though the High Court has relied on the sale deeds under  Exs. 65 and 66 relating to the lands in Nityanand Nagar  Colony, it is also necessary to go into that aspect of the  matter in the view we have stated above."          

       Having noticed the legal principles, we are of the opinion that this

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case merited a different treatment at the hands of the High Court.  The land  in question was acquired for a University.  The University was constructed  in a large area.  By reason of the two notifications in question alone, about  5000 bighas of lands were acquired.  Out of the said  5000 bighas, the lands  needed for actual construction of the building may be a few bighas only.  A  large portion of the land must have been kept vacant for future development  as also for other purposes e.g. sport and other activities. The area consisting  of stones might not have been utilized for the purpose of raising any  construction.  A portion of land admittedly contained minerals.  A number of  minerals were said to be deposited in the land in question, namely, mica,  berill quards and china clay.  The Respondents, however, having regard to  the materials on records confined their claim only to China clay.  19% of the  total minerals bearing land is said to have been exploited.  How far these  minerals bearing land were suitable for raising construction is a matter of  guess.  As per the evidence on record the minerals can be found upto a depth  of 60 ft.  It is not necessary for us to go into this question in details as the  High Court did not advert thereto.  But suffice it to say that for the purpose  of carrying out mining operation, the Respondents were required to comply  with the safety provisions contained in the Mines Act, 1952 and the rules  and regulations framed thereunder.

       The Reference Court and the High Court unfortunately did not  consider the question as to what amount was required to be expended for  bringing the said area back to the normal so as to enable the University  authorities to raise construction thereon.  Minerals were  evidently taken out  by taking recourse to the quarry method, but there is no evidence adduced by  the Respondents to show that the pits caused by such mining activities have  already been filled up.   

We have been taken through the evidence adduced on behalf of the  Respondents.  The witnesses examined on behalf of the Respondents did not  state as to when the pits had been filled up or what was the costs incurred  therefor.  It is also difficult to rely on the said evidence as witnesses  examined on behalf of the Respondents were not expert witnesses.  No  document has also been filed in support of the case of the Respondents.  Mr.  Ramamurthi when confronted with this question, conceded that there does  not exist any satisfactory evidence on the said issue.

       In fact the Reference Court or the High Court did not address  themselves on the question that the market value of the acquired lands was  required to be determined having regard to the largeness of area and the  purpose for which they are required, namely, for the University and not for  the development of the township or the residential colony wherefor different  standards may have to be adopted.  The Reference Court and the High Court  should have also taken into consideration the fact  that the lands in question  being of different categories would fetch different prices and same price  might not have been available for all types of lands.  Recourse taken  by the  High Court to the circulars issued for the lands acquired for residential  purpose only therefore will have no application in the facts and  circumstances of the present case.     PAYMENT OF INTEREST DURING THE PERIOD 17TH JANUARY,  1972 TO 27TH MAY, 1980

       It is not in dispute that the proceedings between 17th January, 1972 to  27th May, 1980 remained stayed on the representation of the Respondents  that they would not be claiming interest at the enhanced amount of  compensation, if any, during the period of stay.  By an order dated 17th  January, 1972, the Reference Court recorded: "Shri Gupta learned Counsel for the petitioners states that  the petition may be stayed sine die and that the petitioner  would not be claiming any interest on the enhanced  amount of compensation money, if any, for the period of  stay. Counsel for UOI has no objection to the proposed

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stay on the terms stated. I would accordingly stay the  proceedings in this case sine die on the condition that no  interest will be awarded to the petitioners on the  enhanced compensation which may be eventually granted  to him, for the period of stay."

       Similar orders were passed on 25th February, 1981 and 5th March,  1923  in Land Acquisition Case Nos. 189/81 and 188/81 respectively.  

       It appears that in the reference arising out of the award No. 2225 Smt.  Pramod Gupta and Ors. Vs. Union of India and Ors, proceedings were  stayed suo moto by the court, presumably having regard  to the orders  passed in other cases.   

The  contention of the Appellant was negatived on the ground that  Sections 28 and 34 being imperative in character the purported undertaking  /representation made on behalf of the Respondents would not amount to  estoppel or waiver.

       Sections 28 and 34 of the Act read as under: "28. Collector may be directed to pay interest on  excess compensation.--If the sum which, in the opinion  of the court, the Collector ought to have a awarded as  compensation is in excess of the sum which the Collector  did award as compensation, the award of the Court may  direct that the Collector shall pay interest on such excess  at the rate of nine per centum per annum from the date on  which he took possession of the land to the date of  payment of such excess into Court.  Provided that the award of the Court may also direct that  where such excess or any part thereof is paid into Court  after the date of expiry of a period of one year from the  date on which possession is taken, interest at the rate of  fifteen per centum per annum shall be payable from the  date of expiry of the said period of one year on the  amount of such excess or part thereof which has not been  paid into Court before the date of such expiry. 34. Payment of interest.--When the amount of such  compensation is not paid or deposited on or before taking  possession of the land, the Collector shall pay the amount  awarded with interest thereon at the rate of nine per  centum per annum from the time of so taking possession  until it shall have been so paid or deposited.  Provided that if such compensation or any part thereof is  not paid or deposited within a period of one year from the  date on which possession is taken, interest at the rate of  fifteen per centum per annum shall be payable from the  date of expiry of the said period of one year on the  amount of compensation or part thereof which has not  been paid or deposited before the date of such expiry"."

       It may not, thus, be correct to contend that the said provisions are so  imperative in character that waiver thereof is impermissible in law or would  be against public interest.  Grant of interest in terms of Section 28 of the  Land Acquisition Act  is discretionary.  Only rate of interest specified  therein is mandatory.  Section 34 of the  Act ex facie, however, appears to be  imperative in character as the word  ’shall’ has been used. A discretion  vested in the court, it is trite,  may not be exercised where the right to claim  interest has been waived expressly by the parties and/or their counsel.  Even  a mandatory provision of a statute can be waived.   

       The effect of Section 28 of the Act came up for consideration before  this Court in Raghubans Narain Singh Vs. The Uttar Pradesh Government,  through Collector of Bijnor [AIR 1967 SC 465] wherein this Court held the  said provision to be discretionary in character observing that it is for the

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court to consider whether in the facts and circumstances of the case, such  interest should be directed to be paid at all.  It is now trite that the court  having regard to the facts and circumstances of a particular case as, for  example, where there is a short interval between the award and the payment,  may not direct grant of any interest.

       The question came up directly for consideration before a Division  Bench of this Court in State of Assam and another Vs. Jitendra Kumar  Senapati and others [AIR 1981 SC 969 : (1981) 2 SCC 221] wherein the  claimants agreed to the amount awarded to them subject to Government  making payment within the 31st March, 1969 stating:

"We further agree that we will make no further claim in  regard to compensation for the same land provided actual  payment is received within the above period of 31st  March, 1969"

       In that case, before the High Court a plea was raised that the  representation of the claimants was confined to the amount of compensation  but the High Court negatived the same stating:

"Although it is true that in the agreement dated February  24, 1969 which the respondents signed and sent to the  government along with their letter of that date they stated  that they would not make any further claim in regard to  "compensation", but that expression, in our opinion, was  clearly used by them not in the sense in which it is used  in Sections 23 and 34 of the Act but more  comprehensively, meaning reimbursement in full  satisfaction of their claim in respect of the acquisition.  That this was so was made clear in the letter addressed to  them by the Under-Secretary in which he expressly stated  that \027 "you and your co-sharers will make no further  claim for the land thus acquired by the Government". The Under-Secretary did not use the word  "compensation" in his letter nor did the respondents use  it in their reply in which, on the other hand, they made a  grouse of the hardship which the delay in payment had  caused to them and brought it to the pointed attention of  the Under-Secretary that immediate payment was an  essential part of the bargain. In the agreement signed by  them (as pointed out above) they no doubt used the word  "compensation" but they added that they would make no  further claim in regard to it if actual payment was  received by them before March 31, 1969. The condition  thus attached by them to the agreement would show that  by the acceptance of the quantified sum of Rs  4,41,202.45 they condoned the delay in payment and also  relinquished all future claims to interest. If it were  otherwise, there is no reason why the respondents would  not have expressly reserved their right to claim interest  under Section 34 of the Act. The tenor of the two letters  coupled with the agreement leads to no other  conclusion."

       It is not in dispute that if a person alters its position pursuant to the  representation made by the other side, the principles of estoppel would be  applicable and by reason thereof, the person making the representation  would not be allowed to raise a plea contra thereto.  In Krishna Bahadur Vs.  Purna Theatre and Others [(2004) 8 SCC 229] this Court held:

"9. The principle of waiver although is akin to the  principle of estoppel; the difference between the two,  however, is that whereas estoppel is not a cause of action;

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it is a rule of evidence; waiver is contractual and may  constitute a cause of action; it is an agreement between  the parties and a party fully knowing of its rights has  agreed not to assert a right for a consideration.

10. A right can be waived by the party for whose  benefit certain requirements or conditions had been  provided for by a statute subject to the condition that no  public interest is involved therein. Whenever waiver is  pleaded it is for the party pleading the same to show that  an agreement waiving the right in consideration of some  compromise came into being. Statutory right, however,  may also be waived by his conduct."

       [See also Vijay Cotton & Oil Mills Ltd. Vs. The State of Gujarat,  1969 (2) SCR 60 at 63].

       Yet again recently in State of Karnataka and Another Vs. Sangappa  Dyavappa Biradar and Others [(2005) 4 SCC 264], the principles of estoppel  was applied in relation to a consent award holding that once a consent award  had been passed, the claimants were precluded from applying for a reference  under Section 18 of the Act.

       The High Court has relied upon a decision of this Court in Suptd. Of  Taxes, Dhubri and others Vs. M/s. Onkarmal Nathmal Trust [AIR 1975 SC  2065 : (1976) 1 SCC 766].  In that case the proceedings were not stayed  pursuant to any undertaking or representation made by the claimant.  The  order of interim injunction was passed whereunder the claimants enjoyed  certain benefits and in that fact situation the plea of waiver was raised.  The  Constitution Bench observed:

"23. The third contention of the Solicitor-General is that  the respondents waived service of a notice within two  years of the expiry of the return period by reason of the  order of injunction obtained by them. Waiver is either a  form of estoppel or an election. The doctrine of estoppel  by conduct means that where one by words or conduct  wilfully causes another to believe in the existence of  certain state of things and induces him to act on that  belief, or to alter his own previous position, the former is  concluded from averring against the latter a different  state of things as existing at that time. The fundamental  requirement as to estoppel by conduct is that the estoppel  must concern an existing state of facts. There is no  common law estoppel founded on a statement of future  intention. The doctrine of promissory estoppel is applied  to cases where a promiser has been estopped from acting  inconsistently with a promise not to enforce an existing  legal obligation. This doctrine differs from estoppel  properly so called in that the presentation relied upon  need not be one of present fact. The second requirement  of an estoppel by conduct is that it should be  unambiguous. Finally, an estoppel cannot be relied on if  the result of giving effect to it would be something that is  prohibited by law. Estoppel is only a rule of evidence.  One cannot found an action upon estoppel. Estoppel is  important as a step towards relief on the hypothesis that  the defendant is estopped from denying the truth of  something which he has said."

       The ratio of the said decision, therefore, runs counter to the opinion of  the High Court.  In that case a question as regard the jurisdiction of the court  was raised as is explicit from the following observations:

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"28. In the present case, the respondent cannot be said to  have waived the provisions of the statute. There cannot  be any waiver of a statutory requirement or provision  which goes to the jurisdiction of assessment. The origin  of the assessment is either an assessee filing a return as  contemplated in the Act or an assessee being called upon  to file a return as contemplated in the Act. The  respondents challenged the Act. The order of injunction  does not amount to a waiver of the statutory provisions.  The issue of a notice under the provisions of the Act  relates to the exercise of jurisdiction under the Act in all  cases. Revenue statutes are based on public policy.  Revenue statutes protect the public on the one hand and  confer power on the State on the other."

       It is, therefore, not correct to contend that there cannot be any waiver  of the right to claim interest.  Statutory provisions are made for payment of  interest with a view to compensate a party who had suffered damages owing  to a positive action or inaction of the other resulting in blockade of money  which he would otherwise have received.  A party who himself represents  before the court of law that he would not claim interest with a view to obtain  an order of stay which would be for his own benefit, in our opinion, could  not be permitted to take advantage of his own wrong.  [See Sushil Kumar  Vs. Rakesh Kumar, (2003) 8 SCC 673 and Laxminarayan R. Bhattad and  Others Vs. State of Maharashtra and Another (2003) 5 SCC 413]

       Even otherwise it is now well-settled that a person cannot be made to  suffer owing to an action by the Court. (Actus curiae neminem gravabit)  [See Ram Chandra Singh Vs. Savitri Devi and Ors., (2003) 8 SCC 319 and  Board of Control For Cricket in India and Another Vs. Netaji Cricket Club  and Others [(2005) 4 SCC 741]

       We, therefore, are of the view  that the High Court committed a  manifest error in allowing interest for the said period.  In fact, Mr.  Ramamoorthy, learned senior counsel appearing for the Respondents frankly  conceded that interest for the said period shall not be payable..

       We are not oblivious of various decisions of different High Courts  taking one view or the other as regard the mandatory or directory character  of Sections 28 and 34 but in view of our findings aforementioned, it may not  be necessary to advert thereto.   

APPLICABILITY OF SECTION 25 OF THE ACT

       It is not in dispute that in the proceeding giving rise to Award No.  2040 dated 2.12.1967 a claim was made by the Respondent \026 Smt. Pramod  Gupta claiming compensation to the extent of 1/4th share in the entire land.   It has also not been disputed before us that Section 25 contains a substantive  provision of law and not a procedural one and, thus, the statutory provision  as it existed prior to its amendment in the year 1984 shall apply. [See Land  Acquisition Officer \026 cum \026 DSWO, A.P. Vs. B.V. Reddy and Sons, (2002)  3 SCC 463 and Krishi Utpadan Mandi Samiti Vs. Kanhaiya Lal and Others,  (2000) 7 SCC 756]

       Section 25 of the Act, as it stood prior to its amendment reads:

" 25. Rules as to amount of compensation.\027(1) When  the applicant has made a claim to compensation, pursuant  to any notice given under Section 9, the amount awarded  to him by the court shall not exceed the amount so  claimed or be less than the amount awarded by the  Collector under Section         11.

(2) When the applicant has refused to make such claim or

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has omitted without sufficient reason (to be allowed by  the Judge) to make such claim, the amount awarded by  the court shall in no case exceed the amount awarded by  the Collector.

(3) When the applicant has omitted for a sufficient reason  (to be allowed by the Judge) to make such claim, the  amount awarded to him by the court shall not be less  than, and may exceed, the amount awarded by the  Collector."

       The High Court negatived the contention of the Appellant in regard to  the bar under  sub-section (2) of Section 25 of the Act opining :

(i)     For attracting the said provision service of notice upon the occupier or  the person interested as envisaged under Section 9(3) is mandatory and  admittedly no notice under Sections 9 and 10 had been served by the  Collector upon the Claimant- Respondent.   

(ii)    Having regard to the Parliamentary amendment carried out by reason  of Land Acquisition Act, 1984, the bar ceases to exist.   (iii)   In view of the decision of this Court in Bhag Singh Vs. Union  Territory of Chandigarh [AIR 1985 SC 1576] and Union of India and Anr.  Vs. Raghubir Singh (dead) by L.R.s etc., JT 1989 (2) SC 427, it becomes  obligatory upon the State to pay compensation on the basis of the market  value of the land acquired and in particular having regard to the judgments  of the courts operating in the field.

       It is not necessary for us to dilate on the second and third reasonings  of the High Court in view of   the  authoritative pronouncement of the court  in B.V. Reddy (supra) wherein the applicability of unamended provision of  Section 25 in a case arising prior to amendment has been upheld.

       So far as non-service of notice under Sub-section (3) of Section 9 is  concerned, we may, however, notice that in the awards of the Collector, it  was categorically stated that the notice under Sections 9 and 10 of the Act  had been issued.  Before the High Court only the records of the Reference  Court were available.  The learned counsel appearing on behalf of the  Respondents stated before us that the fact as to whether such notices had  been served or not could only be ascertained from the records of the  Collector.

       Although the question as regard service of notice is a pure question of  fact, we may observe that the said question may have to be answered  keeping in view certain legal principles, viz., (i) the object for which Section  9 has been enacted; (ii) the situation in which the Respondent had filed a  claim having knowledge of the proceedings under the Land Acquisition Act  as also service of notice in terms of Sub-section (1) of Section 9 thereof; (iii)  service of notice under Sub-section (1) of Section 9 together with service  upon those persons may substantially serve the purpose; and (iv) the  prejudice doctrine.

In the report submitted before the Reference Court, the Land  Acquisition Collector stated that such notices had been served.   Presumption, thus, may be raised as regard their proper service.    

In Uggar Sen Kashyap vs. Union of India & Ors. [1973) 9 DLT 59],  the Delhi High Court held that if the petitioner has taken part in a  proceedings although the claimant has not been served with any notice, he  cannot raise any grievance in this behalf.  In a situation of this nature, even  the doctrine of prejudice may be invoked [See State of Punjab vs. Sawaran  Singh [2005 (5) SCALE 601].

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       We may furthermore notice that in Sureshchandra C. Mehta Vs. State  of Karnataka and Others [1994 Supp (2) SCC 511], this Court held that  service of notice upon the recorded persons whose names appear in the  revenue records only would subserve the purpose for which notice is  required to be served.

       In a case where the Calcutta High Court distinguished the said  decision arising out of the West Bengal Land (Requisition and Acquisition)  Act, 1948 stating that the said decision was not applicable having regard to  the statutory provisions contained in Section 17(5) of the Bangalore  Development Authority Act, 1976, this Court in W.B. Housing Board and  Others Vs. Brijendra Prasad Gupta and Others [(1997) 6 SCC 207] differing  with the view of the Calcutta High Court opined:

"21\005 The Calcutta High Court in the impugned  judgment distinguished this judgment of the Supreme  Court in Sureshchandra C. Mehta case on the ground  that in that case the law itself prescribed notice to be  served on a person whose name was entered in the  revenue record. But the observations of the Supreme  Court in that case that "the authority is not required to  make a roving inquiry as to who is the person entitled to  a notice" is quite apt and has to be given due weight and  consideration."

       Although the question is to be considered by the High Court afresh,  we may point that in the event it is found that the unamended provision of  Section 25 of the Act is held to be applicable, the High Court could not have  awarded compensation at the rate of Rs. 98/- per sq. yard whereas the claim  was made only for Rs. 25/- or Rs. 50/- per sq. yard by the claimants.

       At this juncture, it would also be relevant to note that before the  Reference Court the Respondents made their claim only on the basis of  certain awards/ judgments made by the Reference Court/ High Court.   Before the Reference Court in relation to the notification dated 24.10.1961 it  was contended that the compensation at the rate of Rs. 12,000/- per bigha  should have been awarded by the Land Acquisition Collector.  It is  true that  a faint argument was advanced before the Reference Court that the lands  under acquisition were superior to those  situated in Munirka and Ber Sarai.   Even for the purpose of determination as regard superior quality of land  under acquisition vis-‘-vis the lands situated in the villages which were the  subject matter of the other acquisition cases, it was obligatory on the part of  the High Court to consider the contra plea raised by the Appellants herein.   Furthermore, it was also obligatory on the part of the High Court to consider  the question that a part of the lands consisted of hills and furthermore pits  have been dug up while extracting minerals; the same may not be equated  with the land, which had  potential for building purposes.  The High Court in  its impugned judgment has not adverted to this aspect of the matter at all.

       It is relevant to notice the following observations of the Reference  Court:

"But even if we take that the land in dispute is superior to  the land acquired in village Ber Sarai because of the  factors pointed out above by the ld. Counsel for the  claimants, the claimants cannot be given compensation at  a rate higher than Rs. 12,000/- per bigha because the  claimants have not been able to produce any evidence on  record with regard to higher compensation having been  given in respect of any other superior land in village  Munirka or Ber Sarai nor is there any measure to increase  the compensation over and above Rs. 12,000/- per bigha  because of the superiority of this land over the land in  village Munirka and Ber Sarai."

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        Nothing has been shown before the High Court that the said findings  of the  Reference Court were unfounded. The High Court in its judgment has  proceeded computing the amount of compensation on the basis of the circle  rates without considering this aspect of the matter.

AMENDMENT OF REFERENCE AND ADDITIONAL EVIDENCE :

       It has not been disputed before us that the claimant Smt. Pramod  Gupta purchased 1/4th share of the land in question by a deed dated  14.4.1960.  The Appellants filed an application under Order 41, Rule 27 of  the Code of Civil Procedure for bringing Xerox copy of the said sale deed on  records but the same was rejected inter alia on the ground that prior thereto  no effort was made to rely upon the said sale deed.   

       It is now well-settled that if an owner himself has purchased the land,  the same would be the best evidence for determining the amount of  compensation.  [See Shakuntalabai (supra)]

       The High Court furthermore committed a serious error in coming to  the conclusion that the said deed was executed prior to the date of  acquisition inasmuch as the notification under Section 4 was issued on  24.10.1961.   

       It further appears that Shri Rajiv Gupta purchased 1/8th share of the  amount of compensation payable to his predecessors-in-interest for a sum of  Rs. 30,000/- by a deed of sale dated 23.1.1980, a copy whereof has been  annexed with I.A. 8 of 2005.  

       We have noticed hereinbefore that before the Land Acquisition  Collector the Respondents had claimed only a sum of Rs. 12,000/- per bigha.   Despite the same the Respondents filed an application purported to be under  Order 6, Rule 17 of the Code of Civil Procedure praying for amendment of  Memo 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 their  amended 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.

       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 the Code of Civil Procedure.  The learned  counsel urged that the Respondents had already filed an application for  amendment of 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 Vs. State of Haryana [(1982) 3 SCC  408] Ghaziabad Development Authority Vs. Anoop Singh and Another  [(2003) 2 SCC 484].

       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 claimants \026 Respondents 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

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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. M/s. Modi Spinning & Weaving Mills Co. Ltd.  and another Vs. M/s. Ladha Ram & Co. [AIR 1977 SC 680], Heeralal Vs.  Kalyan Mal and Others [(1998) 1 SCC 278]  and Sangramsinh P. Gaekwad  & Ors. Vs. Shantadevi P. Gaekwad (Dead)  thr. Lrs. & Ors.[JT 2005 (1) SC  581]     

       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 regard the relevant factors while  allowing the said application for amendment.  It has also not been taken into  consideration that the application for amendment of pleading 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.

       In Anoop Singh (supra), 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 Vs.  Kanhaiya Lal and Others [(2000) 7 SCC 756]  and B.V. Reddy (supra),  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.

       In Harcharan (supra) 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 of appeal.   

       It may be true that not only the memorandum of appeal but also the  reference was amended. Mr. Rao pointed out that the necessary amendments  have been carried out in the application for reference or memorandum of  appeal.  In terms of Order VI Rule 18 of the Code of Civil Procedure, such  amendments are required to be carried out in the pleadings by  a party who  has obtained leave to amend his pleadings within the time granted therefor   and if no time was specified then within fourteen days from the date of  passing of  the order.  The consequence of failure to amend the pleadings  within the period specified therein as laid down in Order VI Rule 18 of the  Code is that the party shall not be permitted to amend his pleadings  thereafter unless the time is extended by the court.  It is not in dispute that  such an order extending the time specified in Order VI Rule 18 has not been  passed.                   Mr. Rao, however, would contend that in any event, three  Respondents claimed compensation @ Rs.50/- per sq. yd  and one @ Rs.25/-  per sq. yd. and in that view of the matter having regard to the cross- objections filed by them, the High Court could have exercised its jurisdiction  while allowing the cross-objections to enhance the amount of compensation  to the extent of Rs.50/- per sq. yd.  The said  argument was advanced on the  premise that the Respondents had, as noticed hereinbefore, raised a specific  contention before the Reference Court that the land situated in Village  Masoodpur was better than the land situated at Munirka or Ber Sarai. We are  not persuaded.  The finding of fact arrived at by the Reference Court to the  effect that the Appellants had not been able to show that the land situated at  the aforementioned village are not only inferior to the land situated at village  Masoodpur and which finding having not been reversed by the High Court,  any consideration other than those which found favour with the Reference  Court could not have been entertained.  The High Court in its judgment has

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referred to various decisions showing that the rates specified in the  notification issued by the Union of India would be admissible in evidence.   There is nothing to show that the said judgments were brought on record in  accordance with law.  There is also nothing to show that any application  under Order VI Rule 17 of the CPC was filed and allowed by the High Court  permitting the Respondents to bring the said judgment on records.  In fact,  several reported judgments have been referred to by the High Court not for  the purpose of applying the ratio therein as precedent that such notifications  are admissible in evidence but for the purpose of computing the amount of  compensation on the basis of the rates at which the market price was fixed  therein.  The High Court had referred to the judgments whereby the market  value of the land had been calculated on the basis of the rates specified in  such notification in respect of Vasant Vihar, Defence Enclave and several  other areas, without arriving at any finding that the said judgments are  admissible in evidence or otherwise have relevance for determination of the  market value of the land in question.  The rights of the parties, it is well- settled, must be determined on the basis of the case pleaded and proved by  leading proper evidence and just not on the basis of other reported  judgments [See Surendra Kumar Vakil and Others Vs. Chief Executive  Officer, M.P. and Others, (2004) 10 SCC 126 and Sanjay Gera vs. Haryana  Urban Development Authority and Another  (2005) 3 SCC 207].

       We have noticed hereinbefore that the amendments have not been  carried out in the pleadings in terms of Order VI, Rule 18 of the Code of  Civil Procedure.  The said provision being mandatory, if not complied with  the consequences flowing therefrom shall ensue.

       The purported amendments of the Memo of Appeal and the Reference  applications, therefore, could not have been the basis for allowing adduction  of additional evidence as has been done by the High Court.

       The submission of  Mr. Rao that all the procedural requirements  contained in the Land Acquisition Act were required to be strictly complied  with having regard to the fact that at the relevant point of time, the right to  property was a fundamental right, is misconceived.   We are not, in these  appeals, concerned with the action of the State in acquiring the properties  but only concerned with determination of the market value thereof.              I.A. NOS.7-8 OF 2004 : One of the claimants Shri Rajiv Gupta s/o Shri L.R. Gupta filed an  application marked as I.A. Nos.7-8 of 2004 wherein the following prayers  were made :

       "1.     Stay the operation of the judgment and order  dated October 5, 2001 passed by the Hon’ble High Court  of Delhi in RFA Nos.83/87, 84/87, 85/87 and 86/87.

       2)      Set aside the judgment and order dated  October 5, 2001 and to remand the case back to the High  Court of Delhi for fresh disposal.

       3)      To stay the payment to L.R. Gupta HUF  decree holder in Execution Petitions No. 117/2002,  119/2002 titled Rajiv Gupta & Others vs. U.O.I. and Ex.  No. 114/2002 & 118/2002 entitled Pramod Gupta & Ors.  vs. U.O.I. before the Court of Shri A.K. Pahak, A.D.J.  Tis Hazari Courts, Delhi.

       4)      To pass any other order which this Hon’ble  Court deems just, fit and proper in the circumstances of  the case."

The contention of the applicant is that the High Court committed a  serious error in issuing a direction to the effect that the amount of  compensation deposited by the Appellants should be disbursed in favour of

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Shri L.R. Gupta HUF as in relation thereto a lis is pending in a partition suit  between the parties in a competent court of civil jurisdiction.   

       It is not in dispute that the inter se disputes between the parties are  pending decision in several first appeals before the High Court in terms of  Sections 30 and 31 of the Land Acquisition Act.  The Respondents herein as  also the interveners are persons interested but the question as regard their  entitlement to the amount of compensation determined by the High Court is  yet to be determined.  The Division Bench of the High Court, however,  despite noticing that the first appeals are pending wherein the inter se  dispute/claims  between the parties are to be adjudicated upon, without any  application made by Shri L.R. Gupta HUF has authorized it to collect the  entire amount of compensation directing :

"The amount of compensation has thus to be realized,  received and withdrawn only by the Karta of L.R. Gupta  HUF, through Shri L.R. Gupta. The amount of  compensation, therefore, deserves to be paid to L.R.  Gupta, HUF through its Karta Shri L.R. Gupta.  Ordered  accordingly."   

It is interesting to note that the said direction had been passed on an  application filed by Shri Rajiv Gupta for deletion of the three names of Shri  Sanjay Gupta, Smt. Sumangli Gupta and Shri L.R. Gupta and for continuing  with the proceedings in his name and in the name of  Smt. Pramod Gupta,  inter alia, on the ground that the bhumidhari rights continued to remain in  his name and in the name of Smt. Pramod Gupta only and not on any  application filed by any party to the said proceeding in this behalf.  We fail  to appreciate as to how the aforementioned directions had been made by the  High Court on the application made by Shri Rajiv Gupta.  We may also  notice that Shri L.R. Gupta had already withdrawn a sum of money as  awarded by the Reference Court, the details whereof are as under :

"

Name Compensation  Amount Interest  Received  upto 31.03.91 Interest  refundable  upto 31.03.91  At the rate of  15% p.a. in  case of  restitution as  per terms of  order dated  23.03.87  passed by this  Hon’ble Court Deficit 1. Sh. L.R. Gupta  2,87,72,757.60  68,09,404/- 1,54,66,355/- 86,55,951 2. Mrs. Pramod  Gupta

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10,07,04,651.23 2,87,05,730/- 5,41,28,748/- 2,54,23,018/- 3. Sh. Rajiv Gupta 5,27,50,055.56 1,25,11,387/- 2,83,53,153/- 1,58,41,766/- 4. Sh. Sanjay  Gupta 5,27,50,055.56 1,15,22,534/- 2,83,53,153/- 1,68,30,619/- 5. Ms. Sumangli  Gupta 5,27,50,055.60 1,47,26,420/- 2,83,53,153/- 1,36,26,733/-

Total 28,27,27,575.55 7,42,75,475/- 15,46,53,562/- 8,03,78,087/-                                                                                                    "  

       The aforementioned direction, as has been rightly submitted by the  learned counsel Mr. Bhat, is  wholly unjustified and unwarranted.  The said  direction is, therefore, set aside.

       It will also be relevant to notice the third proviso appended to sub- section (2) of Section 31 of the Land Acquisition Act which reads as under  :

       "Provided also that nothing herein contained shall  affect the liability of any person, who may receive the  whole or any part of any compensation awarded under  this Act, to pay the same to the person lawfully entitled  thereto."                                   In view of the aforementioned provision there cannot be any doubt  whatsoever that if and when an occasion arises either on the basis of an  application filed by the interested parties or otherwise and/or upon disposal  of the pending appeals, in the event Shri L.R. Gupta, HUF is found to have  no title over the land in question, it would be bound to refund the entire  amount of compensation received by it together with such interest thereon,  as may be determined  applying the doctrine of  ’restitution’.  

I.A. NOS. 17-18 OF 2005 : We have hereinbefore noticed the claim of Shri Madan Gopal Gupta  and Shri Sudhir Jain.  The contention of the interveners in the  aforementioned application, is that no Bhumidhari right could be granted in

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favour of Gulab Sundari and in that view of the matter any finding on Issue  No.1 as framed by the Reference Court and affirmed by the High Court,  should be set aside by this Court.  In these appeals, this Court is concerned  only with the determination of the question raised before us and not the inter  se dispute of title between the parties.  Such a question as and when  adjudicated upon by the competent courts in appropriate proceedings will be  binding on the parties thereto inasmuch as only who succeeds in the said  proceedings will be entitled to the amount of compensation.  Keeping in  view the fact that neither the Reference Court nor the High Court had any  opportunity to examine the said question as has been contended by the  applicants herein, we would observe that this Court had not determined the  question that the Respondents herein being successors of Gulab Sundari  were entitled to the Bhumidhari rights by reason of the alleged deed of sale  executed in their favour, but we only have proceeded on the basis that  assuming they are Bhumidhars; in what manner their claim for awarding  compensation should be dealt with.  Any observation made herein by us  should not be taken to mean that we have determined the question of  entitlement of the Respondents herein as Bhumidhar under the Delhi Land  Reforms Act finally or otherwise.  Such a finding has to be arrived at by the  courts determining the said question in the pending proceedings.  

CONNECTED MATTERS: We  may, however,  notice that in the appeal arising out of SLP  (Civil)  CC No.5724 of 2004 an award was made @ Rs. 1.74 per sq. yard,  although the claim of Rs.30/- per sq. yard was made and the High Court  despite the fact that neither application for amendment nor adduction of  additional grounds was filed,  blindly  followed its decision in other appeals  filed by the Union of India.  No finding therein has also been arrived as to  how the judgment and award of the Reference Court was unsustainable.

CONCLUSION:         It is true that Union of India did not question the orders disallowing  the application for amendment filed by the Appellants and allowing the  application for amendment as also adduction of additional evidence by the  Respondents herein but having regard to the peculiar facts and  circumstances of this case and in particular the fact that a large amount of  public money is involved, we are of the opinion that it is a fit case where our  jurisdiction of this Court under Article 142 of the Constitution should be  invoked for the purpose of setting aside the said orders  with a view to do  complete justice between the parties.   

       In a case where the lis was mishandled by the State and different  courts passed different orders, this Court relying upon a decision of this  Court in Deb Narayan Shyam and Others Vs. State of W.B. and Others  [(2005) 2 SCC 286] invoked its inherent jurisdiction under Article 142 of the  Constitution stating:

"26\005 Therefore, in order to do complete justice to the  parties, it is a fit case where we need to invoke our  inherent power under Article 142 of the Constitution.  Learned Senior Counsel appearing for the State of West  Bengal has made a categorical submission that all the  Amins irrespective of their qualifications will be entitled  to Pay Scale 6 and no money which has been drawn by  the Amins in the 36 writ petitions will be recovered from  them prior to 1-10-2001 as directed by the Division  Bench of the High Court. Therefore, we direct that all the  Amins irrespective of their qualification in the minimum  scale of pay will be given Scale 6 and they will be  entitled to promotion as per rules in Scales 7 and 8 as the  case may be. Though the Division Bench has directed  that no recovery shall be made from the Amins drawing  higher pay scale for the period prior to 1-10-2001 but  since the law has now been declared by this Court, we  extend that period till this date i.e. no recovery shall be

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effected from all these Amins in 36 writ petitions and  they shall be properly fixed in the pay scale provided for  Amins in the ROPA Rules and their pay should be  protected in the respective pay scales. This is being done  because of the fact that the State Government is  responsible for creating such anomalous situation. Had  the State Government contested the matter and  consequently pursued the remedies available under law,  then this anomalous situation would not have been  created. Though the Division Bench has given the benefit  of the pay scales up to 1-10-2001, the said cut-off date is  extended till this date because we are invoking the  inherent jurisdiction under Article 142 of the  Constitution."

CIVIL APPEAL NOS. 6825- 6832 OF 2003    

For the reasons aforementioned, the impugned judgments are set aside  and the matters are remitted to the High Court for fresh consideration, in the  light of the observations made hereinbefore.  The appeals are disposed of  accordingly.  No costs.

CIVIL APPEAL NOS. 950, 2661 OF 2005, CIVIL APPEAL  NOS\005\0055566-5569\005\005OF 2005 [Arising out of SLP (Civil) No. 14383 of  2004, CC Nos. 5724, 9371, 11751 of 2004]

These appeals were disposed of by the High Court on the basis of the  judgment rendered  by a Division Bench of the Delhi High Court in  Bhooria  & Ors. vs. Union of India  [95 (2002) DLT 100 (DB)].   

In view of the fact that in Civil Appeal Nos.6825-26 of 2003 etc., the  impugned judgments are being set aside and the matter is remitted to the  High Court, the judgments and awards passed in these appeals must also be  set aside on the same lines.  The Appeals are  disposed of accordingly.  No  costs.