| SooperKanoon Citation | sooperkanoon.com/773247 |
| Subject | Property;Limitation |
| Court | Rajasthan High Court |
| Decided On | Feb-18-2002 |
| Case Number | D.B. Civil Special Appeal No. 09 of 1999 |
| Judge | Rajesh Balia and; O.P. Bishnoi, JJ. |
| Reported in | 2002(4)WLC67; 2003(2)WLN298 |
| Appellant | Union of India |
| Respondent | Brij Lal Prabhu Dayal and ors. |
| Disposition | Appeal dismissed |
| Cases Referred | O. Janardhan Reddy v. Special Deputy Collector |
Rajesh Balia, J.
1. Heard learned Counsel for the parties.
2. This appeal is directed against the judgment passed by the learned Single Judge on 27th January, 1999 rejecting the application under Section 5 of the Limitation Act for condoning the delay in filing the appeal under Section 54 of the Land Acquisition Act, 1894 against the award passed by Civil Judge (Senior Division), Sriganganagar, in Civil Reference No. 155/93 Brijlal, Prabhudayal v. State of Rajasthan and Ors., on 2nd April, 1998.
3. The controversy arose in the following facts and circumstances. By a Notification under Section 4(1) of the Land Acquisition Act, 1894, Govt. of Rajasthan on 29th September, 1989 made known its intention to acquire 5044 Bighas and 15 Biswas of land, which included the land of the respondents, which is situated in Ganganagar District. The land is sought to be acquired for Union of India. Thereafter, declaration under Section 6(4) and direction under Section 17(4) of the Act of 1894 were issued on 27th March, 1990. In pursuance of which the said land was acquired. Amongst the land so acquire the respondents-claimants had 50 Bighas of land situated in Chuck 6 SGM. However, it appears that as a result of reorganisation of chaks said land came to be situated partly in Chak 8 SHPDA and partly in Chak 10 SHPDA.
4. Land Acquisition Officer awarded compensation to the claimants, Brijlal and Prabhu Dayal, persons jointly interested in land, at the rate of Rs. 9,500 per Bigha, by treating the land as Barani (unirrigated) or in other words cultivation depends on rain water only as per the nature of land recorded in the land records as per soil classification. However, the claimants were not satisfied with the award of compensation by treating the land in question as Barani. According to them, land was irrigated one through irrigated work. For such irrigated lands, the Land Acquisition Officer has awarded the compensation by taking the market price at the rate of Rs. 37,500/- per Bigha. The said respondents, therefore, made an application for submitting reference to the Court under Section 18 of the Land Acquisition Act. Said application was allowed. In the land acquisition reference case State of Rajasthan through Collector, Sriganganagar, the Land Acquisition Officer, Surat, Distt. Sriganganagar and Union of India through Secretary, Govt. of India, New Delhi, were impleaded as parties.
5. We may notice that initially Govt. U.O.I. was impleaded through Land Acquisition Officer as a party, but later on the description was corrected as UOI through Secretary, Department of Defence. Shri Kashi Ram, Advocate, appeared for the claimants, whereas Shri Gauri Shanker Gupta, Govt. Advocate, appeared for all the respondents. No evidence was led on the nature of the land/soil by the respondents before the Reference Court though the claimants have led the evidence, oral as well as documentary, to show that though the land was recorded as Barani land in the land records, since 1972-1973 the land in question was brought under command area and was since then irrigated land. The Irrigation Deptt. has issued water slips for irrigating the land in question. Such water slips were produced before the Court. The claimants also examined, apart from producing water slips, land holders of neighbouring land to prove that the land in question was in fact being subjected to irrigation through the irrigation work as a command area through an established system of irrigation under the control of Irrigation Deptt. of the State of Rajasthan. The supply of water from any irrigation and drainage work in Rajasthan is regulated under the provisions of Rajasthan Irrigation and Drainage Act.
6. learned Counsel for all the non-applicants, opposite parties, raised a preliminary objection before the Civil Judge (Senior Div.), that reference was not maintainable as application for submitting reference was not made within limitation. The Court found that no notice under Section 12(2) read with Section 9 was issued to the claimants and therefore, the period of limitation is to be computed from the date knowledge of the award with reasons therefor can be attributed to claimants. In this connection, reference was made to decision of Supreme Court in Harish Chandra v. Dy. Land Acquisition Officer, : [1962]1SCR676 and decisions of other High Courts. By applying the aforesaid principle the application for making reference under Section 18 was found to be within limitation. The preliminary objection as to maintainability of reference was over-ruled.
7. On merit, by considering the evidence led before it, learned Civil Judge found that the land in question was irrigated land since before the date of Notification issued under Section 4 which is the relevant date for determining compensation. Merely because, the land was continued to be shown in the land records as 'Barani', cannot be treated as conclusive proof of the nature of the land, as on the date with reference to which compensation was to be determined.
8. The award was made by the learned Civil Judge (Sr. Division), on 2nd April, 1998. No appeal was preferred by the acquiring authority viz. State of Rajasthan. However, appeal against this award was preferred by the UOI, only through Defence Estate Officer, which was barred by time by 83 days.
9. An application under Section 5 was made alleging that no notice of reference was served on UOI and that Shri Gauri Shanker Gupta was not authorised even to appear for UOI. It was also stated that they were not informed of the proceedings by any one. The other reason stated was that because for filling an appeal before this High Court, an amount to the tune of Rs. 70,000/- was required to be arranged for payment of Court fee for which necessary sanction was to be obtained from the Competent Officer, which required to follow lengthy procedure. These were stated to be sufficient causes which prevented filing of the appeal within limitation the plea about the ignorance of the award was founded on assertion that there was no representation by UOI. before the trial Court for defending its case as no notice was served on the UOI.
10. Both the grounds were not accepted by the learned Single Judge. By referring to the record of the proceedings and finding that Gauri Shankar has in fact appeared on behalf of all the three respondents including UOI, the learned Single Judge held that it cannot be said that UOI was unrepresented. Learned Single Judge also did not countenance the plea of insufficient time in making arrangement of the Court fees by UOI. He therefore, held that applicants have failed to establish any sufficient cause which prevented them from filing of appeal in time and rejected the application. He held that no facts whatsoever have been given by the learned Counsel for the appellant in its application under Section 5 of the Limitation Act to constitute sufficient cause within the meaning of Section 5 of the Limitation Act and rejected the application and appeal as barred by time.
11. Hence, this special appeal.
12. At the very outset, a preliminary objection has been raised by the learned Counsel for the respondents as to maintainability of this intra-Court appeal in view of Section 54 of the Land Acquisition Act, which provides for an appeal directly to Supreme Court against any decree of the High Court passed on such appeal.
13. learned Counsel in support of his objections, placed reliance on the decision of Supreme Court in Union of India v. The Mohindra Supply Co., : [1962]3SCR497 and two decisions of this Court in D.B. Civil Writ Petition No. DR (J)560/2001: Laxmi Udhyog v. UOI, decided on 7.12.2001, and UOI v. Maheshwari Builders,: D.B. Civil Writ Petition No. 1/2001 decided on 4.12.2001. He also placed reliance on a Bench decision of this Court in State of Raj. and Ors. v. Central Administrative Tribunal and Ors., D.B. Civil Writ Petition No. 2519/2000 and D.B. Civil Writ Petition No. 2520/2000 decided on 30.8.2001, which arose out of the order passed by the CAT in a contempt case.
14. learned Counsel for the respondents drew our attention to decision of Delhi High Court in Mahli Devi v. Chander Bhan, : AIR1995Delhi293 , of Punjab High Court in Shri Chand Sheo Lal v. Union of India, and of Supreme Court in Vanita M. Khanolkar v. Pragna M. Pai, JT 1998 (7) SC 17 and Nuclear Power Corporation v. Gajraj Singh, : AIR1995SC1606 . He also placed reliance on Full Bench decision of this Court in New India Assurance Co. Ltd. v. Santosh and Ors., RLR 1995 (1) 584.
15. So far as the decisions of this Court in Laxmi Udhyog v. UOI, (supra) and State of Rajasthan v. CAT, (supra) are concerned, both the cases do not deal with the particular question in issue before us namely whether intra-Court appeal provided under the letters patent/High Court Ordinance, from a judgment of a learned Single Judge to a Division Bench is maintainable or not? In both the cases, the question that has arisen before the Court, was whether this Court would entertain a petition under Article 226/227 to issue appropriate writ order or direction, where an appeal has been provided under the parent enactment directly to Supreme Court, as of right.
16. In the State of Rajasthan v. CAT's, case this Court was concerned with an order passed by CAT in exercise of its jurisdiction under Section 19 of Central Administrative Tribunal Act of 1985 for punishing a person alleged to be in contempt of it for willful disobedience of its orders.
17. In L. Chandra Kumar's case the Apex Court has held that CAT is not a substitute of High Court so as to exclude jurisdiction of High Court to entertain writ petition under Article 226/227 against Tribunal's order as a Tribunal subordinate to High Court. The contention about maintainability of writ petition was founded on the aforesaid ratio.
18. However, the Writ Petition in the case of an order passed on a contempt application was held to be not maintainable by this Court following the decision of Supreme Court in T. Sudhakar Prasad v. Govt. of Andhra Pradesh, (2001) 1 SCC 516. The Supreme Court has made a distinction between the case of order passed under Section 17 of the Central Administrative Tribunal Act and Section 19 of the Act. Where the Tribunal exercises its jurisdiction under Section 17 of the Act of 1985, it is exercised as a Tribunal in addition to High Court and not as a substitute of High Court and in doing that it acts as a Tribunal subordinate to the High Court within the meaning of Article 226/227 of the Constitution and, therefore, orders passed by CAT under Section 17 of the Act of 1985 are amendable to the jurisdiction of the High Court notwithstanding an appeal may lie to the Supreme Court under Article 136. But while exercising jurisdiction under Section 19 in exercise of its jurisdiction to punish contempt of Court, the Tribunal acts not as an Additional Tribunal subordinate to the High Court, but acts as substitute of High Court itself and discharge the functions as a High Court under the Contempt of Courts Act and it being a Court of co-ordinate jurisdiction, no petition lay to the High Court under Article 226 because the order passed by CAT in contempt jurisdiction in view of the relevant provisions of Central Administrative Tribunal Act, read with Article 323-A and of the Contempt of Courts Act, 1972 is not an order passed by a Tribunal subordinate to High Court.
19. Thus, the principle enunciated in State of Raj. v. CAT, (supra) does not assist the respondents in this case, as it does not refer to intra-Court appeal provided under a statute.
20. In the case of Laxmi Udhyog also the question this Court was required to address was whether in view of combined reading of Section 35-G(1) and (3) of the Central Excise Act read with Section 35-L of that Act, an application under Section 35-G(3) or a petition under Article 226 is maintainable against the orders passed by the CEGAT. this Court referring to the Scheme of the Central Excise Act held that so far as the matters which were excluded from the provisions of Section 35-G to be made subject matter of reference to this Court, has been made directly subject matter of appeal to the Supreme Court, therefore, neither an application under Section 35-G would lie nor a petition under Article 226 would be entertained. This case also dealt with question of exercise of extra-ordinary jurisdiction by High Court under Article 226 and not about maintainability of an appeal which is a right created under statute.
21. However, the correctness of the later part of the judgment, which holds that petition under Article 226/227 is not maintainable in view of provisions of appeal under Section 35-L is open to doubt. Unlike the case of Central Administrative Tribunal exercising contempt jurisdiction, the CEGAT in any circumstance does not become a Tribunal substitute of High Court. It continues to remain a Tribunal subordinate to High Court. Whether right to judicial review by a High Court, of any order passed by a Tribunal subordinate to it, within its jurisdiction, which forms part of basic feature of constitutional scheme, is taken away by providing an appeal to Supreme Court, does not appear to have been considered and decided in the above case. If CEGAT is a Tribunal subordinate to High Court, the mere existence of alternative remedy by itself may not be sufficient to oust the jurisdiction under Articles 226 and 227 of the Constitution which is a part of the basic feature of the Constitution providing for judicial review of the orders passed by any authorities and Tribunal subordinate to the Court. It remain within the discretion of the Court while exercising extra-ordinary jurisdiction, whether to exercise such jurisdiction or not.
22. However, we leave it at that as this question does not affect the decision of this case inasmuch as we are not concerned with maintainability of writ petition before this Court where an appeal has been provided to Supreme Court directly under the relevant statute. The question is whether remedy of intra-Court appeal provided under relevant Letters Patent or High Court Ordinance ceases to be available in view of the provisions of Section 54 of the Land Acquisition Act. The question whether once an appeal is provided to High Court under relevant statute, which is to be heard and decided by the learned Single Judge as per the High Court Rules and intra-Court appeal under the Letters Patent is maintainable or not was not the issue in the two cases referred to above, therefore, said decisions do not govern the controversy before us.
23. Reference was made by the learned Counsel for the respondents, Mr. M.S. Singhvi to decision in D.B. Civil Special Appeal No. 1/2001. which arose out of order passed in arbitration proceedings under the Arbitration Act, and the Misc. Appeal under Section 39 of the Arbitration Act, 1940 was decided by a learned Single Judge of this Court. The Special Appeal filed against the judgment of learned Single Judge was held to be not maintainable in the aforesaid case.
24. Section 39(2) of the Arbitration Act, 1940, and for that matter Section 37(3) of the Arbitration & Conciliation Act, 1996 prohibits a 'second appeal' from an order passed in appeal under the said provision. However, the provision excluded from the purview of its prohibition the appeal that may be filed before the Supreme Court. The question was whether such prohibition of second appeal was attached to a second appeal in its generic sense or was referable to a second appeal under Section 100, CPC only.
25. Noticing the fact that no direct appeal to the Supreme Court was provided, nonetheless the second appeal was barred reserving the right of appeal of Supreme Court, the Supreme Court in U.O.I. v. The Mohindra Supply Co., (supra) on which reliance was placed by the learned Counsel for respondents also, held that the second appeal mentioned in Section 39(2) of the Arbitration Act refer to second appeal in its generic sense and not to a second appeal in technical sense used in Section 100 of the Civil Procedure Code. The Supreme Court concluded that since the expression 'second appeal' used in Section 39(2) of the Arbitration Act means a further appeal from an order passed in appeal under Section 39(1) and not an appeal under Section 100 of the Civil Procedure Code, no Letters Patent appeal would lie against the order passed by the learned Single Judge on appeal under Section 39.
26. this Court in Maheshwari Builder's, case (supra) has followed and applied the said principle in a case arising under Arbitration Act.
27. We are not here concerned with the decision by the learned Single Judge in an appeal under Section 39(2) of the Arbitration Act of 1940 or Section 37(3) of the Arbitration and Conciliation Act of 1996.
28. The above principle can be invoked by analogy in the present case, only if two provisions namely Section 54 of the Land Acquisition Act, is para-materia with Section 39 of the Arbitration Act, 1940. We shall presently see that it is not so.
29. Section 39(2) of the Arbitration Act, 1940 reads as under:
Section 39(2). No second appeal shall lie from an order passed in appeal under this section, but nothing in this section shall affect or take away any right to appeal to the Supreme Court.
30. The contrast from the provisions of Section 54 of Land Acquisition Act can be clearly sensed which reads as under:
54. Appeals in proceedings before Court.--Subject to the provisions of the Code of Civil Procedure, 1908 (5 of 1908), applicable to appeals from original decrees, and notwithstanding anything to the contrary in any enactment for the time being in force, an appeal shall only lie in any proceedings under this Act to the High Court from the award, or from any part of the award, of the Court and from any decree of the High Court passed on such appeal as aforesaid an appeal shall lie to the Supreme Court subject to the provisions contained in Section 110 of the Code of Civil Procedure, 1908, and in Order XLV thereof.
31. We find in the above provision that though an appeal is provided directly to the Supreme Court from the judgment and decree passed by High Court in appeal under Section 54, it does not exclude specifically or by necessary implication any intra-Court appeal as may be provided under Letters Patent Act or High Court Ordinance nor any prohibition against 'second appeal' as such was envisaged as under the Arbitration Act. A decree passed by the learned Single Judge of High Court is as much a decree passed by High Court as a decree passed by Division Bench. Therefore, filing of appeal intra-Court within the High Court, as per the specific provisions contained in Rajasthan High Court Ordinance or Letter patent Act that were existing prior to commencement of the Constitution under Article 225, would not alter the nature of decree passed by either of the forum, from a decree passed by High Court to some other Court, so as to affect the provision of ultimate appeal to Supreme Court from a decree passed by High Court in appeal, when no such prohibition, can be spelt out from Section 54 express or by necessary implication.
32. Article 225 of the Constitution mandates that the exercise of jurisdiction by High Courts which were existing at the time of commencement of Constitution, and would start functioning under the Constitution on such commencement, shall be governed by the provisions of the relevant statute or 'High Court Rules' as were then existing, shall continue to govern the practice and procedure of the Court subject to other provisions of Constitution or other law made by appropriate legislature.
33. Article 225 of the Constitution reads as under:
Article 225. Subject to the provisions of this Constitution and to the provisions of any law of the appropriate Legislature made by virtue of powers conferred on that Legislature by this Constitution, the jurisdiction of, and the law administered in, any existing High Court and the respective powers of the Judges thereof in relation to the administration of justice in the Court, including any power to make rules of Court and to regulate the sittings of the Court and of members thereof sitting along or in Division Courts, shall be the same as immediately before the commencement of this Constitution:
Provided that any restriction to which the exercise of original jurisdiction by any of the High Courts with respect to any matter concerning the revenue or concerning any act ordered or done in the, collection thereof was subject immediately before the commencement of this Constitution shall no longer apply to the exercise of such jurisdiction.
34. A perusal of the aforesaid provision goes to show that while constituting a High Court for each State under Article 214, the jurisdiction of, and the law administered in, any existing High Court, and the respective powers of the Judges thereof in relation to the administration of Justice in the Court, including any power to make rules of Court and to regulate the sittings of the Court and of members thereof sitting along or in Division Courts, were made applicable to High Court functioning under the Constitution by making specific provision in the Constitution itself. Thus, the existing law and rules framed for governance of the practice and procedure were adopted by reference until the legislation make the law providing otherwise for governance of the jurisdiction, practice and procedure of any High Court.
35. As per the prevailing law immediately before the commencement by incorporating the same by references continued to govern the practice, procedure, and power of the High Court under the existing rules until any law is made by the appropriate legislation in that regard, and ofcourse subject to other provisions of the Constitution. Therefore, the provisions of Rajasthan High Court Ordinance and Rules framed by the High Court thereunder became the powers of this Court and of Judges of the Court sitting alone or in Division Bench and the practice and procedure followed in administration of justice for High Court under the Constitution by virtue of Article 225, unless such law or High Court Rules were amended or altered by appropriate legislation made by the legislature. Thus, the fountain source of High Court practice and procedure in exercise of its jurisdiction is Article 225 of the Constitution, which could be altered only by enacting new law or by framing new Rules on the subject in which event the operative field of provisions allowed to continue under Article 225 will be occupied by New Law framed by Competent Legislature or other authority unless new laws came into existence to occupy the field on the subject, it shall continue to be governed by old regime of Rules by dint of Article 225.
36. Thus, existing jurisdiction of High Court under Letters Patent, until any contrary legislation takes it place, continued to be operative and letters patent appeal as intra-Court appeal remained maintainable subject to other provisions of the Constitution or statutory provision, existing or newly enacted, which excluded such appeal expressly or by necessarily implication. Such was view expressed by Calcutta High Court in Board of Governors St. Thomas School v. A.K. George, : AIR1984Cal208 , Chunilal Basu v. Chief Justice of the High Court of Calcutta, : AIR1972Cal470 .
37. In Board of Governors St. Thomas School v. A.K. George, (supra) a Bench of Calcutta High Court said speaking through Hon'ble B.C. Ray, J., as he then was,
A combined reading of Article 225 and Article 372 of the Constitution indicates that the powers of the High Court conferred on it by the Acts repealed or otherwise can be exercised after the Constitution and the rules already made by the High Court before the Constitution in exercise of those powers are also continued after the Constitution. Such powers or rules made thereunder will however be subject to the laws made by a competent legislature or authority.
38. Like view was earlier been expressed by a Full Bench of Andhra Pradesh High Court In re Ranganayakulu, AIR 1956 A.P. - 161 that the rules made by High Court comes within purview of law made by a competent authority and unless repealed would certainly continue to remain in force as a result of conjoint reading of Articles 225 and 372(1) of the Constitution. After referring to Articles 225 and 372(1) of the Constitution K. Subba Rao C.J., as His Lordships then was, said:
A combined reading of these two provisions clearly indicates that powers of the High Court conferred on it by the Act repealed or otherwise can be exercised by the High Court after the Constitution and the rules already made by the High Court before the Constitution in exercise of those powers are also continued after the Constitution. No doubt such powers or the rules made thereunder will be subject to law made by a competent legislature or authority...the rules made by the High Court in exercise of powers conferred under the Letters Patent, which have not been repealed, would certainly continue to be in force.
39. A Full Bench of this Court considered the provisions of Motor Vehicles Act, 1939, which provided the remedy of appeal in the following terms: 'the State Govt. or any person aggrieved by an order subject to the provisions of Sub-section (2), any persons aggrieved by an award of a Claims Tribunal may, within 90 days from the date of award, prefer an appeal to the High Court.
40. The contention has been raised that since only one appeal ('an appeal') has been provided to the High Court, whether the matter is heard by Single Bench or Division Bench, no further appeal was envisaged to High Court from a judgment of learned Single Judge to Division Bench. The High Court relying on the decision of Supreme Court in N.S. Thread Co. v. James Chadwick and Bros., : [1953]4SCR1028 held that once an appeal reaches the High Court it has to be determined according to the rules of practice and procedure of that High Court. The Court referred to the following passage from the decision of N.S. Thread Company's case:
Obviously, after the appeal had reached to High Court it had reached the High Court it has to be determined according to the rules of practice and procedure of that Court and in accordance with the provisions of the charter under which the Court is constituted and which confers on it power in respect to the method and manner of exercising that jurisdiction. The rule is well settled that when a statute directs that an appeal shall lie to a Court already established then that appeal must be regulated by the practice and procedure of that Court.
41. We have noticed that the practice and procedure for the High Court continued to regulate the practice and procedure which was in force at the time of commencement of the Constitution until a contrary provision is made by the legislation in that regard, as per the provisions of Article 225. Thus, said appeal, so long as it remains in High Court, is to be governed by practice and procedure of High Court including right of intra-Court appeal to Division Bench.
42. The Supreme Court in Vanita M. Khanolkar v. Pragna M. Pai and Ors., (supra) said that any statutory provision barring an appeal or revision cannot cut across the constitutional power of a High Court. Even the power flowing from the paramount charter under which the High Court functions would be get excluded unless the statutory enactment concerned expressly excludes appeals under letters patent.
43. As no specific provision prohibiting a letters patent appeal was discernible under Section 6 of the Specific Relief Act, 1963, the provision which was under consideration, letters patent appeal was held to be maintainable.
44. The question directly arose before a Full Bench of Delhi High Court in Mahli Devi v. Chander Bhan, (supra). The very same question which has been raised before us about maintainability of letter patent appeal in Land Acquisition Cases where appeal was governed by Section 54 of the Land Acquisition Act was referred to Full Bench because of a Division Bench has taken contrary view, on the issue, from the decisions of other Division Benches. Hon'ble Arun Kumar, J. as he then was, speaking for the Court said:
Section 54 of the Land Acquisition Act does not contain any specific bar to the right of second appeal. Therefore, the second appeal under the Letters Patent, will be available to the party concerned.
45. It was further stated, repelling the contention of conflict between Section 54 and Clause 10 of the Letter patent of the High Court;
Firstly in view of the aforesaid discussion we do not accept that there is any conflict between the provisions of Section 54 of the Act and Clause 10 of the Letters patent of the High Court. Secondly, the non-obstante Clause has to be confined to the choice of forum rather than to the right of appeal. As already discussed the word 'only' occurring immediately after the non-obstante Clause in Section 54 refers to the forum of appeal. In other words it confines the appeal to the High Court only. It does not restrict the right of appeal from one Bench to another Bench of the High Court. The decision of the Division Bench rendered on the Letters Patent appeal will remain a decision of the High Court which will be subject to further appeal to the Supreme Court as per the provisions of Section 54 of the Act. Thirdly, it is a cardinal principle of interpretation that if there is a conflict, attempt should be made to harmoniously construe the provisions as far as possible.
We are in respectful agreement.
46. Lastly, our attention has been invited to Basant Kumar v. Union of India, : (1996)11SCC542 in which case the Court said:
It is settled position that under Section 54 of the Land Acquisition Act, the appeal would lie to the High Court; when the appeal on the basis of pecuniary value was decided by a Single Judge necessarily, it being the judgment of the Single Judge, an appeal would lie to the same Court in the form of LPA to the Division Bench. The Division Bench was not right in holding that the LPA would not lie to the High Court against the judgment of the Single Judge.
47. The Division Bench decision of Delhi High Court holding contrary view and which led to a reference to Full Bench, was reversed. Thus, the Full Bench decision of Delhi High Court was impliedly affirmed.
48. Apart from the aforesaid it is apparent that in the present circumstances appeal is against order of learned Single Judge dismissing the application under Section 5 of the Limitation Act which amounted to not entertaining the appeal on merit. The order under Section 5 of the Limitation Act is not an order passed by learned Single Judge in an appeal under the Land Acquisition Act. An appeal, could only be competent, if the application under Section 5 would have been allowed. For an appeal against the order of rejecting application under Section 5 of Limitation Act there cannot be any impediment in maintainability of appeal under Section 18 of the Rajasthan High Court Ordinance.
49. In view of aforesaid discussion, the preliminary objection about maintainability of Special Appeal is over-ruled and we hold that this Special Appeal is not barred because of Section 54 of the Land Acquisition Act.
50. Coming to the merits of this appeal it has been contended by the learned Counsel for the appellant reiterating the plea taken in their application under Section 5 of the Limitation Act that no notices were issued to UOI and UOI was not informed about the proceedings by serving any notices on it. An attempt was made also to urge that Mr. Gauri Shanker Gupta, whose appearance on behalf of all the respondents is recorded, was not in fact authorised to appear on behalf of appellant U.O.I.
51. This is not in dispute so far as the judgment of the Civil Judge (Sr. Division) is concerned, it records attendance of learned Counsel for all the respondents before him. The said counsel, who was a Govt. Pleader and Public Prosecutor for the State through Collector, Sriganganagar has filed memo of appearance on 2.2.1994 for permitting him to appear for UOI as well as for State of Rajasthan. The another memo of appearance filed on 4.4.1994 on behalf of all the three opposite parties. Yet another memo of appearance by the Govt. Pleader-cum-Addl. Public Prosecutor to appear on behalf of all the opposite parties was filed on 6.1.1996. The notices issued to UOI through the Defence Estate Officer were accepted by the Govt. Advocate-cum-Assistant Public Prosecutor, Sriganganagar on 20th December, 1993, who was already appearing for the Union of India. Notices were also accepted by him on behalf of State of Rajasthan on the same date. The application was also moved by the same counsel on behalf of State of Raj. & UOI on 19.3.1998 in reply to application under Order 13, Rule 2. These acts have not been disowned by the appellants.
52. In the face of these multiple documents appearing from the record and proceedings, it is aparent that counsel, who was appearing for the State, who happened to be Govt. Advocate-cum-Addl. Public Prosecutor was throughout conducting the case and appearing on behalf of State of Rajasthan, the acquisition authority as well as for UOI for whose purpose the land was being acquired by State of Raj.
53. Faced with this situation, learned Counsel for the appellant urged that since notices were accepted by the counsel himself the possibility of the concerned Department of Union of India having not been informed about the pendency of this reference, cannot be ruled out and therefore, it cannot be said that the present appellants were at all informed about the proceedings. This contention also appears to be not well founded in view of copy of the correspondence between the Defence Estate Officer, Bikaner Circle Bikaner and the Govt. of Raj., suggesting to the contrary.
54. learned Counsel for the respondents has placed on record a latter dated 10.9.1993 from the Legal Remembrancer, Government of Rajasthan, Jaipur to the Collector, Sriganganagar with reference to the letter received from Defence Estate Officer, Bikaner Circle, Bikaner dated 26.8.1993 in connection with the Land Reference cases arising out of Land Acquisition proceedings with which we are concerned. The letter communicates to Collector that he is requested to appoint Govt. Advocate in the above noted case on behalf of U.O.I. and Advocate's fees will be paid after due verification by Law Department. The reference made to the subject under reference was captioned as under:
Appointment of Distt. Govt. Counsel Civil Court Sriganganagar for Defence of Land Reference Cases arising out of Acquisition of Land for Army at Suratgarh on behalf of Union of India and Others.
55. In pursuance of this letter of 14.10.1993 the District Collector communicated to the Govt. Advocate, Sriganganagar under information to the Deputy Legal Remembrancer and Defence Estate Officer, Bikaner Circle, Bikaner that for the acquisition matters relating to the acquisition of land at Suratgarh for defence purposes, he is appointed as State Counsel on behalf of UOI and others and he was directed to conduct those cases on behalf of all. This letter was endorsed to the Defence Estate Officer, with request to make immediate contact with the counsel.
56. learned Counsel has also placed on record letter dated 6.5.1998 after the award in question was made which is emanating from the Defence Estate Officer approving the bill of Shri Gauri Shanker Gupta, Govt. Advocate, Sriganganagar for conducting the case, which is at hand, for U.O.I. and for release of amount of fees payable for this case.
57. In these circumstances, it is not possible to accept that the Govt. Advocate Shri Gauri Shanker Gupta in the case under consideration was not acting under the instructions for UOI and that UOI was not informed about the conduct of case by said counsel, who has been appointed as Counsel for the UOI by State of Raj. On a request made in this behalf by the Estate Officer. Any other conclusion is not possible in view of clear record of approval of fee bill of Shri Gauri Shanker Gupta by Estate Officer of Defence Deptt. of U.O.I., who is an officer of U.O.I. in Defence Deptt. and was looking after the interest of the U.O.I. Apparently, a palpably wrong plea has been taken in respect of application under Section 5 of the Limitation Act for condonation of delay. Want of knowledge of the proceedings and award dated 2.4.1998 on the part of the appellants, therefore, cannot be accepted. Learned Single Judge, in our opinion, was right in not accepting the existence of the cause of pleaded for the purpose of condoning the delay.
58. The other contention about time requisit for arranging court fee to be paid on appeal by U.O.I. cannot comment itself as a cause of delay in filing appeal. Firstly, it is not acceptable that there could be any difficulty for U.O.I. to make arrangement of necessary funds to pay Court fee within the time of limitation. Secondly, even if, arranging the court fee stamps was likely to take some time, an appeal filed on deficient court fee stamps does not become non est and court fee could have been paid even later on within extended period. It cannot be ground which could prevent filing of appeal within the prescribed period.
59. As a result, we on merit of this appeal do not find that the learned Single Judge has committed any error in rejecting the application under Section 5 of the Limitation Act by holding that the appellants have failed to show any sufficient cause which could prevent it from filing the appeal within limitation.
60. The aforesaid conclusion of ours alone is sufficient to non-suit the appellants.
61. Still in order to satisfy ourselves we have examined the merit of the case at the request of learned Counsel for the appellants and find that appeal has no merit on substantive grounds also.
62. We have already noticed in detail that the only controversy raised by the claimants before the Reference Court was about the nature of land. The controversy is confined to finding whether the land in question is irrigated land or Barani land. There is no dispute that if, the land in question is irrigated land as on relevant date, viz. the date on which Notification under Section 4 of the Land Acquisition Act was published the claimants were entitled to compensation by taking the market value of land at the rate fixed for irrigated land by the Land Acquisition Officer. No dispute exists about the respective market price of land as on relevant date for irrigated and unirrigated land fixed by the Land Acquisition Officer.
63. So far as the question of nature of land sought to be acquired is concerned, it was recorded in the land records as Barani. These entries though relevant are not conclusive proof about the nature of the land as on relevant date. The cases are not wanting where notwithstanding the nature of land recorded to be agricultural land, the compensation has been awarded on the basis that land is urban, if in fact it was found to be urbanised. The fact that land has been recorded as Barani land in record, has not been disputed by any party.
64. The Barani according to Settlement Rules under Rajasthan Land Revenue Act refers to Classification of Land as per Soil Classification as (i) Irrigated. (ii) Dry Cultivated and (iii) Dry uncultivated. According to which Barani' refers to land which falls in the category of 'dry cultivated land' where cultivation depends on rain. The entry in land record about this aspect only refers to fact at the time when settlement proceeding takes place, the question has to be established as fact on evidence. About the nature of cultivation of land viz. whether the same is under cultivation with irrigation facilities or cultivation continues to depend on rain water or is dry uncultivated on the date with reference to which market value of the land has to be determined. Therefore, entries made at the time of settlement cannot have the conclusiveness as on the relevant date which is much removed in proximity of time from the date of settlement.
65. We may notice some precedents in this regard laying down the principles for determining market price of agricultural land on relevant date.
66. In connection with the agricultural land the Privy Council in R.B. Lala Narsingh Das v. Secy. of State for India, AIR 1925 PC-91 said that the value of the land in actual condition at the time with all existing advantages and possibilities determines compensation. The principle was further explained in Babu Kailash Chandra Jain v. Secretary of State, AIR 1946 PC-132 wherein the Privy Council was considering the provisions of Land Acquisition Act, 1894 as amended by U.P. Town Improvement Act 1991. The Board opined:
Under Section 23[3][a] of the Land Acquisition Act, as amended by the U.P. Town Improvement Act, 1919, the owner of a plot of land used as a garden at the relevant date, or of a plot of agricultural land lying fallow at the relevant date, is entitled to compensation on its compulsory acquisition. On the true construction of Section 23, the former plot ought to be valued as a garden and the latter plot as agricultural land. The effect of Section 23[3][a] as so amended is that the possibility of the garden or agricultural plot being used e.g. for building purposes in the future must b disregarded. Apart from the case provided for in Section 23[3][b], only the present use of the land can be considered for the purpose of arriving at the market value.
67. In 1977 Punjab Law Journal-464, a Division Bench of the Punjab & Haryana High Court enunciated the principle that where the land sought to be acquired had been included in the limits of the city one year before the Notification under Section 4 was issued, and was surrounded on all sides by residential buildings but was at the time of notification under agriculture and was valued as an agricultural land on the basis of average sale price of previous five years, the land being included within Municipal limits of the City, which was a developing city as an industrial town the land in dispute had great potentialities as residential area and had acquired an urban character which could not be ignored.
68. Likewise, a Division Bench of the Delhi High Court in Kesho Dass v. U.O.I., (1991)44 Delhi Law Times-375 held that in determining market value of land, valuing solely with reference to its ordinary agricultural value does not appear to be correct proposition, Court has to ascertain it keeping in view potentiality of land on materials available on record.
69. Our attention is also invited to a recent decision of Supreme Court in O. Janardhan Reddy v. Special Deputy Collector, Andhra Pradesh : AIR1995SC186 . The Court was considering the factors to be taken into account for determining the market value of agricultural land under acquisition. The Court emphasised that highest factor that contributes to market value is the available irrigation facility it commands. The Court explained--
Market value of agricultural land has to be determined under the Act with reference to the date on which preliminary notification was published in the State Gazette proposing its acquisition and according to the price which a buyer interested in agriculture would have paid for it to the owner having regard to its soil, the irrigation and other facilities, it commanded for its maximum utilisation for agricultural purposes. The highest factor that contributes to the market value of agricultural land is the irrigation facility, it commands, admits of no controversy. Irrigation facility commanded by the agricultural land is that water supply which it can command for crops to be grown in it.
70. It has been clear case set out by the respondents claimants that originally land in question was Barani, but thereafter since 1972-73 the land was taken in command area and put under irrigation. This was fully corroborated by fact that the authorities of the Irrigation Deptt. had issued the water slips to the respective land holders of land in question. The claimants have not only examined themselves, but have examined neighbouring tenants of the entire land in question, formerly part of chuck 6 SGM, but now stand distributed between Chak 8, and Chak 10 SHPDA that the land in question has been put under water supply and being irrigated since 1972-73 much prior to the relevant date viz. when Notification under Section 4 was published on 29.9.1989. This evidence was not rebutted by the State under whose control Irrigation Deptt. functions. Having ample opportunity to rebut the evidence led by the claimants no evidence was led by the appellants for whom the land was being acquired as well as the State Govt. who is acquiring authority, under the Act. They rest contented to rely on the entries in the land records as correct, notwithstanding alteration in the nature of the land from Barani to irrigated land by extending irrigation facility to land in question was proved through evidence emanating Irrigation Deptt. Those findings being finding of fact, duly supported by cogent, convincing and reliable material on record, we do not find any infirmity in the order of learned Civil Judge (Sr. Div.) also which may call for interference in appeal.
71. The entry made at the time of settlement about the nature of land as per soil classification existing at the time of settlement proceedings does not reflect the true or correct position existing on the relevant date is further established by the attempt made by the appellants to place certain additional evidence at this stage to suggest that only part of land in question was irrigated and not whole of it. Thus, on showing by the appellants themselves the land record was clearly not reflecting the true state of affairs about nature of land as on the date Notification under Section 4 was published.
72. We do not see any justification to permit the appellants to lead additional evidence at this stage for showing that only part of land in question was irrigated for non-production of it earlier no reason is made out.
73. The claimants led cogent evidence, oral as well as documentary, emanating from the Statutory authorities of Irrigation Department engaged in distribution of water under the Irrigation and Drainage Act, a department functioning under acquiring authority, showing that land in question is being irrigated as command land from canal system since long and prior to date of Notification under Section 4.
74. Accordingly, the appeal fails and is hereby dismissed with no order as to costs.