Kam Raj And Others vs State of Himachal Pradesh And Others

Tarlok Singh Chauhan, J.

The moot question to be decided in this petition filed by the petitioners/claimants under Article 227 of the Constitution of India is as to whether the

petitioners/claimants are entitled to the compensation in accordance with the ratio of the judgment laid down by a Constitution Bench of the

Hon’ble Supreme Court in Sunder versus Union of India, (2001) 7 SCC 211.

However, before answering the said question, certain minimal facts need to be noticed.

The Government of Himachal Pradesh on 04.06.1990 issued single notification under Section 4(1) of the Land Acquisition Act (for short ‘the

Act’) for acquiring lands in three villages i.e. Kot, Nataila, District Solan and village Kaflaid, District Shimla, for the construction of the Airport at

Jubberhatti, District Solan,H.P. After completion of other formalities, the Land Acquisition Collector on 07.08.1993, passed an award. However, dis-

satisfied and aggrieved by the award so passed, the claimants filed reference petition under Section 18 of the Act before the learned District Judge,

Solan and Shimla, respectively. The reference petitions filed before the learned District Judge, Solan of village Kot and Nataila were consolidated and

vide common award dated 05.01.1998, the market value was assessed at Rs.2,08,620/-per bigha for all kinds of lands and the statutory benefits under

Sections 23(1-A), 23(2) and 28 of the Act were also awarded in favour of the claimants.

On coming to know about the award passed in Land Reference Petition No.17-S/4 of 1996, the petitioners/land owners, who could not file the

reference petitions under Section 18 of the Act, filed petition under Section 28-A of the Act, the Land Acquisition Collector, South Zone, Winter field,

Shimla. The Land Acquisition Collector on the analogy of the award passed by the learned District Judge, Solan, passed the similar award in favour of

the petitioners on 28.11.2000.

It appears that the respondents did not deposit the award amount thus constraining the petitioners to file CWP No.352/2004 before this Court. At

the same time, the State also assailed the award passed in favour of the claimants by filing CWP No.346/2004. Not only this, even the award passed

by the learned District Judge, Solan, on 05.01.1998 was also assailed by the State by filing RFA No.280/1998 which came to be finally decided by this

Court on 23.04.2007, whereby the appeal preferred by the State was ordered to be dismissed and the award passed by the learned District Judge,

Solan, was ordered to be upheld.

As regards the writ petition filed by the petitioners, the same was allowed and the respondents were directed to pay the award amount to the

petitioners and proforma respondents or deposit the same with the Collector within a period of two months.

It is not in dispute that in compliance to the aforesaid orders, the State deposited some amount before the Collector and the same was also

disbursed to the petitioners including the legal representatives of deceased petitioners No.3, 4 and 9. But, according to the petitioners, the deposit was

not in accordance with the award passed by the learned District Judge in the reference petition and, therefore, they accordingly filed execution

petition. However, the execution petition came be to be dismissed by the Land Acquisition Collector on the ground that this Court in its judgment had

“remained silent on the question of adopting 1+2+3 formula and never directed to award extra bank interest. Also the appellant had not approached

the Forum within the statutory and prescribed time period (limitation). Hence, their entire claim is hereby rejected.â€​

Aggrieved by the award passed by the Land Acquisition Collector on 31.10.2003, the petitioners have filed the instant petition.

It is vehemently argued by learned counsel for the petitioners that they are entitled to the compensation in terms of the judgment in Sunder’s

case (supra). Whereas, on the other hand, the learned Additional Advocate General, would contend that the ratio of the judgment in Sunder’s case

(supra) cannot be applied in the instant case as the same would only apply prospectively.

I have heard the learned counsel for the parties and have also gone through the records of the case.

In view of the rival contentions as raised by the learned counsel for the parties, it becomes imperative for this Court to firstly determine the ratio

laid down in Sunder’s case (supra) and then to consider whether the the same is to apply prospectively, as is vehemently contended by learned

Additional Advocate General.

It is more than settled that prospective declaration of law is a device innovated to avoid reopening of settled issues. However, there has to be no

prospective over ruling unless it is so indicated in a particular judgment.

A Full Bench of the Punjab and Haryana High Court in Commissioner of Income Tax versus Smt.Aruna Luthra (2001) 252 ITR 76 opined that a

declaration by the Court is â€"This was the law, this is the law. This is how the provisions have to be construed. The Court merely declares the law

and earlier decision by the Court is “simply no lawâ€​. It shall be apposite to extract the relevant observations which read thus:-

“A Court decides a dispute between the parties. The cause can involve decision on facts. It can also involve a decision on a point of law. Both may

have bearing on the ultimate result of the case. When a court interprets a provision, it decides as to what is the meaning and effect of the words used

by the Legislature. It is a declaration regarding the statute. In other words, the judgment declares as to what the Legislature had said at the time of the

promulgation of the law. The declaration is-This was the law. This is the law. This is how the provision shall be construed. Julius Stone in Social

Dimensions of Law and Justice (First Indian Reprint 1999) (Chapter XIV), while dealing with the subject of Judge and Administrator in Legal

Ordering, observes as under:

“If, then, a main impulse underlying the stare decisis doctrine is that justice should respect reasonable reliance of affected parties based on the law

as it seemed when they acted, this impulse still has force when reliance is frustrated by an overruling. Despite this, it has long been assumed that a

newly emergent rule is to be applied not only to future facts, and to the necessarily past facts of the very case in which it emerges, but to all cases

thereafter litigated, even if these involved conduct, which occurred before the establishment of the new rule. This has proceeded ostensibly on the

conceptual basis, clearly formulated since Blackstone, that the new holding does not create, but merely declares, law. So that any prior putative law

under which the parties acted is to be regarded as simply not lawâ€. The above observations clearly support the principle that the court merely

declares law. An earlier decision as declared by the court is “simply no lawâ€​.

The Hon’ble Supreme Court could have directed the implementation of the judgment in Sunder’s case (supra) prospectively and not

retrospectively. However, I do not find any such direction contained in the said judgment. This proposition otherwise cannot be invoked in the present

case as admittedly the award passed by the learned District Judge had also been assailed by none other than the respondents herein, therefore, the

doctrine of merger applies, as it cannot be disputed that an appeal is in continuation of the original proceedings and when the decision passed in the

original proceedings is under consideration of the appellate authority the whole matter is writ large. Even while affirming the appeal, the Court would

be passing its own judgment, decree or award which would then merge with the award, judgment or decree passed by the court/authority of the first

instance with that of the appellate authority.

At this stage, certain precedents on the subject need to be noticed.

In Dilip versus Mohd. Azizul Haq and another, (2000) 3 SCC 607, it was held as follows:-

“Once a decree passed by a court has been appealed against the matter becomes sub-judice again and thereafter the appellate court acquires

seisin of the whole case. A court of appeal shall have the same powers and shall perform as nearly as many be the same duties as conferred and

imposed on courts of original jurisdiction. The hearing of an appeal under the processual law of the country being in the nature of a rehearing and it is

on the theory of an appeal being in the nature of a rehearing that the Courts in this country have, in numerous cases, recognized that in moulding the

relief to be granted in a case on appeal, the court of appeal is entitled to take into account even facts and events which have come into existence after

the decree appealed against. As an appeal is a rehearing, it must follow that if an appellate court dismisses an appeal it would be passing a decree

affirming eviction and thereby passes a decree of its own, and in the event it upsets the decree of the trial court, it would be again passing a decree of

its own resulting in merger of decree of the trial court with that of the appellate court. The legal pursuit of a remedy, suit, appeal and second appeal

are really but steps in a series of proceedings all connected by an intrinsic unity and one to be regarded as one legal proceeding.â€​

Similarly, in Union of India and others versus West Coast Paper Mills Ltd. and another, (2004) 2 SCC 747, the Hon’ble Supreme Court held as

follows:-

“It may be true that by reason of Section 46-A of the Indian Railways Act the judgment of the Tribunal was final but by reason thereof the

jurisdiction of this Court to exercise its power under Article 136 of the Constitution of India was not and could not have been excluded. Article 136 of

the Constitution of India confers a special power upon this Court in terms whereof an appeal shall lie against any order passed by a court or tribunal.

Once a special leave is granted and the appeal is admitted, the correctness or otherwise of the judgment of the Tribunal becomes wide open. In such

an appeal, the court is entitled to go into both questions of fact as well as law. In such an event the correctness of the judgment is in jeopardy. Even in

relation to a civil dispute, an appeal is considered to be a continuation of the suit and a decree becomes executable only when the same is finally

disposed of by the court of appeal.

The starting point of limitation for filing a suit for the purpose of recovery of the excess amount of freight illegally realized would, thus, begin from the

date of the order passed by this Court. It is also not in dispute that the respondent herein filed a writ petition which was not entertained on the ground

stated hereinbefore. The respondents were, thus, also entitled to get the period during which the writ petition was pending, excluded for computing the

period of limitation. In that view of the matter, the civil suit was filed within the prescribed period of limitation. The trial Judge as also the High Court

have recorded a concurrent opinion that the respondents were entitled to the benefits of Sections 14 and 15 of the Limitation Act, 1963. We have no

reason to take a different view.â€​

However, more pertinent and important observations have been made in a decision by Hon’ble three Judges of the Hon’ble Supreme

Court in Chandi Prasad and others versus Jagdish Prasad and others (2004) 8 SCC 724 wherein while dealing with the doctrine of merger, it was

observed as under:-

“Merger

The doctrine of merger is based on the principles of propriety in the hierarchy of justice delivery system. The doctrine of merger does not make a

distinction between an order of reversal, modification or an order of confirmation passed by the appellate authority. The said doctrine postulates that

there cannot be more than one operative decree governing the same subject matter at a given point of time.

It is trite that when an Appellate Court passes a decree, the decree of the trial court merges with the decree of the Appellate Court and even if

and subject to any modification that may be made in the appellate decree, the decree of the Appellate Court supersedes the decree of the trial court.

In other words, merger of a decree takes place irrespective of the fact as to whether the Appellate Court affirms, modifies or reverses the decree

passed by the trial court. When a special leave petition is dismissed summarily, doctrine of merger does not apply but when an appeal is dismissed, it

does. [See V.M. Salgaocar and Bros. Pvt. Ltd. Vs. Commissioner of Income-tax, AIR 2000 SC 1623].

The concept of doctrine of merger and the right of review came up for consideration recently before this Court in Kunhayammed and Others Vs.

State of Kerala and Another (2000) 6 SCC 359 wherein this Court inter alia held that when a special leave petition is disposed of by a speaking order,

the doctrine of merger shall apply stating:

Once a special leave petition has been granted, the doors for the exercise of appellate jurisdiction of this Court have been let open. The order

impugned before the Supreme Court becomes an order appealed against. Any order passed thereafter would be an appellate order and would attract

the applicability of doctrine of merger. It would not make a difference whether the order is one of reversal or of modification or of dismissal affirming

the order appealed against. It would also not make any difference if the order is a speaking or non- speaking one. Whenever this Court has felt

inclined to apply its mind to the merits of the order put in issue before it though it may be inclined to affirm the same, it is customary with this Court to

grant leave to appeal and thereafter dismiss the appeal itself (and not merely the petition for special leave) though at times the orders granting leave to

appeal and dismissing the appeal are contained in the same order and at times the orders are quite brief. Nevertheless, the order shows the exercise of

appellate jurisdiction and therein the merits of the order impugned having been subjected to judicial scrutiny of this Court.

""To merge"" means to sink or disappear in something else; to become absorbed or extinguished; to be combined or be swallowed up. Merger in law

is defined as the absorption of a thing of lesser importance by a greater, whereby the lesser ceases to exist, but the greater is not increased; an

absorption or swallowing up so as to involve a loss of identity and individuality. (See Corpus Juris Secundum, Vol. LVII, pp. 1067-68)

43.We may look at the issue from another angle. The Supreme Court cannot and does not reverse or modify the decree or order appealed against

while deciding a petition for special leave to appeal. What is impugned before the Supreme Court can be reversed or modified only after granting

leave to appeal and then assuming appellate jurisdiction over it. If the order impugned before the Supreme Court cannot be reversed or modified at the

SLP stage obviously that order cannot also be affirmed at the SLP stage.

In Kunhayammed (supra), it was observed: ( SCC p.370, para 12)

12…..Once the superior court has disposed of the lis before it either way - whether the decree or order under appeal is set aside or modified or

simply confirmed, it is the decree or order of the superior court, tribunal or authority which is the final, binding and operative decree or order wherein

merges the decree or order passed by the court, tribunal or the authority below. However, the doctrine is not of universal or unlimited application. The

nature of jurisdiction exercised by the superior forum and the content or subject-matter of challenge laid or which could have been laid shall have to be

kept in view.

27.The said decision has been followed by this Court in a large number of decisions including Union of India and Others Vs. West Coast Paper Mills

Ltd. and Another [(2004) 2 SCC 747].â€​

What thus emerges from the aforesaid exposition of law is that once the award passed by the Land Acquisition Collector or the learned District

Judge in reference is under challenge in appeal before this Court, then the judgment rendered by this Court either affirming and dismissing the appeal,

the award originally passed becomes inoperative since the lacuna of merger will come into play. The doctrine of merger does not make a distinction

between an order of reversal, modification or an order of confirmation passed by the appellate authority. The said doctrine postulates that there cannot

be more than one decree governing the same subject matter at a given point of time.

As regards the other findings recorded by the Land Acquisition Collector that this Court while disposing of the writ petition had remained silent on

the question of adopting 1+2+3 formula as also the findings of limitation, to say the least, are perverse. Compensation in accordance with law as

directed by this Court would essentially mean, the law as determined in Sunder’s case (supra) and this Court was not required to direct the

respondents to calculate the compensation in a particular manner. How the compensation is to be calculated, is the job of the Collector and not this

Court, who is required to ensure that the mandate in Sunder’s case (supra) is followed in letter and spirit.

As regards the claimants having not approached the Forum within the statutory period, suffice it to say, that the period of limitation for executing

the award, which is in nature of money decree, would be 12 years, that too, to be computed from 23.04.2007 when the writ petitions filed by both the

respective parties finally came to be disposed of by this Court.

In view of the aforesaid discussion, this Court has no hesitation to conclude that the order passed by the Land Acquisition Collector is not only

erroneous, but the same is also perverse and the same is accordingly quashed and set aside.

The petition is accordingly allowed. The respondents are directed to deposit the balance amount of compensation strictly in terms of judgment in

Sunder’s case (supra) within two months from the receipt of certified copy of this judgment, failing which the respondents, apart from being liable

to pay interest in terms of Sunder’s case (supra), would be further liable to pay additional interest on the amount due till its payment @ 9% per

annum.

The petition stands disposed of in the aforesaid terms, leaving the parties to bear their own costs. Pending application, if any, also stands disposed

of.