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Judgment
Kamlesh Sharma, J.—The following appeals are being disposed of by a common judgment, as these pertain to acquisition of land acquired for the public purpose of construction of Solan By-Pass Road (National Highway No. 22):
SI. No. R.F.A. No. Title Reference Petition No.
l4 of 1984 L.A.C.,Solan v. Boop Ram 21-S/4 of 1979
9 of 1984 Bhoop Ram v. Slate of H.P. �do�
19 of 1984 L.A.C., Solan v. Munshi Ram 22-S/4 of 1979
17 of 1984 L.A.C., Solan v. Mohan Lal and Ors. (L.Rs. of Naraini and Ors.) 24-S/4 of 1979
16 of 1984 L.A.C., Solan v. Bahadur Chand Madhok 23-S/4 of 1979
22 of 1984 L.A.C., Solan v. G.P. Bharatwal 43-S/4 of 1977
18 of 1984 L.A.C. Solan v. R.K. Puri and Ors. (L.Rs. of Santosh Puri) 48-S/4 of 1977
115 of 1983 L.A.C., Solan v. Om Parkash and Ors. 46-S/4 of 1977
60 of 1984 Shakuntala Singal and Ors. v. State of H.P. and Anr. 50 �S/4 of 1977
Appeals at Serial Nos. 1 to 7 arise out a common award dated 31-8-1983 whereby seven reference petitions bearing Nos. 21-S/4 of 1979, 22-S/4 of 1979, 24-S/4 of 1979, 23-S/4 of 1979, 25-S/4 of 1979, 43-S/4 of 1977 and 48-S/4 of 1977 were decided. All the appeals except R.F.A. No. 9 of 1984 have been filed by the State of Himachal Pradesh to challenge the enhancement of market price of the acquired land awarded by the District Judge. On the other band, in R.F.A. No. 9 of 1984, claimant Bhoop Ram has challenged the market price of the acquired land awarded by the District Judge on the ground that it is not fair and just and has prayed for its enhancement. No appeal has been filed either by the State or the claimants in respect of the land of Reference Petition No. 25-S/4 of 1979 titled Jeet Ram v. H.P. State R.F.A. No. 115 of 1984 at the instance of the State has been filed against the award dated 31-5-1983 passed by District Judge, Solan and Sirmaur Districts at Nahan challenging the enhancement of the market price of the acquired land awarded therein. In R.F.A. No. 60 of 1984, the claimant has challenged the award dated 11-7-1984 passed by District Judge, Solan and Sirmaur Districts Campt at Solan praying for further enhancement of the market price of the acquired land.
For acquiring the land, which is subject matter of these appeals, two notifications were issued u/s 4 of the Land Acquisition Act (hereinafter called the Act). By the first notification dated 12-9-1974, the land of original claimants Santosh Puri, G.P. Bharatwal, Matu Ram and Om Parkash was acquired, whereas, by second notification dated 11-8-1977 land of original claimants Munshi Ram, Naraini, Bhadur Chand, Jeet Ram and Bhoop Ram was acquired. After holding enquiry u/s 9 of the Act and considering the objections of the interested persons, the Land Acquisition Collector determined the market price of the acquired land as under:
Award No. and date Village Classifica- tion Rate per Bigha/ per square metre
256/77 10-7-77 Saproon Bangar II Bangar Kadeem, Ghasni land, Charand and Gairmumkin Ks 26,355 per Bigha Rs. 6,400 per Bigha
255/77 9-8-77 Kather Bangar I (Bagicha) Jai Safaid Bagicha Ghasni Ghasni land Gair Mumkin land Rs. 40 per sq. mtr. Rs. 10 �do-- Rs. 10 �do� Rs. 8 �do-- Rs. 8 �do�
15/78 Basal Bangar I Bangar Kadim Ghasni and Gair Mumkin Rs. 25,000 per Bigha Rs. 7,000 per Bigha Rs. 6,000 per Bigha
Feeling aggrieved, the claimants filed reference petitions u/s 18 of the Act, out of which the reference petitions of original claimants Munshi Ram, Naraini, Bhadur Chand, Jeet Ram, G.P. Bharatwal and Santosh Puri were consolidated with reference petition of claimant Bhoop Ram and the evidence was recorded in the said petition and all these were disposed of by a common award dated 31-8-1983 determining the market value of the acquired land as under:
SI. No. No. of Petition and name of claimant Classifica- tion and area of land Rate Award- ed by court Total com- Pensation payable Amount Already paid as per Col- lector�s award Balance Enhanced Amount payable
1 2 3 4 5 6 7
21-S/4 of 79 Bhoop Ram Bangar I 0-15 Bigha Baniar Kadim 2-10 Bigha 25,000 15,000 56,275 36,250 20,025
22-S/4 of 79 Munshi Ram Bangar I 0-10 Bigha Gair Mum- kin Abadi 0.7 Bigha 25,000 15,000 16,750 14,600 2,150
23-S/4 of 79 Bhadur Chand Bangar Kadim 3-3 Bighas 15,000 47,250 22,050 25,200
24-S/4 of 79 Naraini, Sant Ram, Netar Singh Ghasni 2-3 Bighas 15,000 32,250 12,800 19,450
25-S/4 of 79 Jeet Ram Bangar I (sic)-l5 Bigha 25,000 43,750 43,750 Nil
43-S/4 of 77 G.P. Bharatwal Ghasni 0-13 Bigha 15,000 9,750 4,160 5,590
48-S/4 of 77 Santosh Puri Entitled to 5 Biswas and remain- ing land not acquired 30,000 7,500 -- 7,500
Reference petitions of original claimants Matu Ram and Om Parkash and Ors. were tried separately. In the award dated 11-7-1984 passed in the reference petition of original claimant Matu Ram, the market value of his land was determined at the uniform rate of Rs. 40 per square metre for Bagicha Bangar Awal or Bicha Ghasni. In reference petition of Om Parkash and Ors. by award dated 31-5-1983 the market price of the acquired land has been determined at Rs. 30,308 per Bigha for Bangar-va- Bagicha and Rs. 18,185 per Bigha for Bangar Kadim-vat-Toda.
In order to appreciate the respective contentions of the learned Counsel for the parties and to decide whether the market value of the acquired land determined by the District Judge is legal and valid and if not, what will be the fair and just market value of the acquired land, we have to analyse the evidence produced by the parties in the reference petitions. In the reference petitions, which were consolidated with reference petition of original claimant Bhoop Ram and, the claimants Bhoop Ram, Bhadur Chand, Munshi Ram Santosh Puri have appeared as their own witnesses as PWs 1 to 3 and 5 respectively. They have also produced Sant Ram son of Jheru Ram PW 4 and Bhagwan Singh, Advocate, Subhadhra Bhardwaj, K.L. Gupta, Advocate, Sant Ram son of Sobha Ram and Bheem Dutt as PWs 6 to 10 respectively. PWs 1 to 10 have stated in one breath that the acquired land is near to bus stand, railway station, cantonment area and Industrial Training Institute, Solan. They have also stated that at the time of acquisition it was on the boundary of municipal limits of Solan City. After Solan Tehsil became District and Solan City its headquarter, there is considerable rise in the market price of the land as a large number of residential and commercial buildings are being constructed. These witnesses have placed on record and proved the following sale consideration, which were admittedly of the plots of land within the municipal limits:
SI. No. PW No., name purchaser/seller Document Particulars Price per Bigha
PW 6 Bhagwan Singh, Advocate, purchaser Sale Deed Ex. PW 6/A dated 21-2-74 117 sq. mts. Ghasni village Seer Rs. 7,000 at the rate of Rs. 45,000 per Bigha
PW 7 Subhadra Bhardwaj, pur- chaser Nil February 1974 304 sq. mts., Road Civil Hospital, Solan. Village Seer Rs. 12,000 at the rate of Rs. 29,685 per Bigha
PW 8 K.L. Gupta, Advocate, pur- chaser Sale Deed dated 24.2- 1974 Ex. PW 8/A 127 sq. mts., Ghasni near Civil Hospital Solan approach Road Village Seer Rs. 7,000 at the rate of Rs. 41,450 per Bigha
PW 9 Sant Ram son of Sobha Ram was the seller of the land mentioned in registered sale deeds Ex. PW 6/A and PW 8/A. According to him, the prevailing market rate in Municipal limits of Solan Town was between Rs. 40,000 to Rs. 45,000 per Bigha at the time of acquisition of land. But the evidence of PW 6 to PW 9 and the sale transactions proved by them are not comparable with the acquired land being at a distance of 1-1/2 kilo metres and within the Municipal limits, whereas the acquired land was outside the Municipal limits at the relevant time. Out of the claimants, original claimant Santosh Puri PW 5 had herself admitted that the market value of land in village Kather was Rs. 30,000 to 35,000 per Bigha at the time of acquisition. The claimants have also placed on record award dated 23-2-1979 passed in Reference Petition No. 31-S/4 of 1977 titled Kamla Devi v. State, and award dated 30-6-1982 passed in Reference Petition No. 12-S/4 of 1981 titled Bimla Devi and Ors. v. State. In award dated 23-2-1979 the land was acquired vids notification dated 27-9-1974 u/s 4 of the Act for the widening of Thodo Ground for the construction of the Community Hall by the Municipal Committee, the market value of which was determined at Rs. 88 per square metre or Rs. 66,200 per Bigha. In the other award dated 30-6-1982, the land was acquired vide notification 14-3-1974 u/s 4 of the Act in village Sheer (within Solan Municipal limits) and the market value determined at the rate of Rs. 70 per square metre or Rs. 52,840 per Bigha, but these cannot be the basis for determining the market value of at acquired land in these appeals, as these pertain to the acquisition of land in Solan City within the Municipal limits.
In rebuttal, on behalf of the Land Acquisition Collector and the State of Himachal Pradesh the following transactions were brought on record and proved:
SI. No.
RW No., name Purchaser/seller
Document
Particulars of land
Price per Bigha
RW 1 Ved Kumari purchaser
Sale deed Ex. R-1
225 sq. mts. Banger village katehar
Rs. 3,000 at The rate of Rs. 10,200 per Bigha
RW 2 Baldev Verma purchaser
Sale deed Ex. R-2
14 Bigha 19 Biswas Ghasni
Rs. 46,000 at The rate of Rs. 3,500 per Bigha
RW 3 Kirpa Ram Sellar
Sale deed Ex. R-4
754 sq. mts., Ghasni and Dhank
Rs. 15,000 at the rate of about Rs. 13,600 per Bigha
RW 4 Tulsi Ram Seller
Sale deed Ex. R-6 Sale deed Ex. R-3 Sale deed Ex. R-5
6 Biswas to Dina Nath 11 Biswas to keshav Ram 4 Biswas toSatya Devi Total 1 Bigha 2 Biswas Ghasni
Rs. 3,000 Rs. 7,000 Rs. 3,000 Rs. 13,000
RW 5 Keshav Ram, purchaser Sale deed Ex. R-3 11 Biswas, Ghasni Rs. 7,000
The market value of these lands as per transactions (Ex. R-1 to R-6) is of no assistance, as the Land Acquisition Collector had already determined the market value of the acquired land at much higher rates as stated hereinabove. Moreover, it is not proved that these lands are comparable with the acquired land.
From the totality of evidence on record, as discussed hereinabove, it is proved that the acquired land is situated in villages Saproon, Kather and Basal at a short distance from Bus Stand, Railway Station and Deputy Commissioner''s Office. From the map, commonly known as ''Seh-Hadda- dehat of Mohal Thodo Solan Deh and Mohal Jawahar Park, Solan'', the location of the acquired land is as under:
Claimant�s name From Bus Stand From Railway Station From D.C. Office
Santosh Puri 913 meters 521 meters 642 meters
Naraini 1178 meters 786 meters 907 meters
Munshi Ram 1488 meters 1096 meters 1217 meters
Bahadur Chand 1512 meters 1120 meters 1141 meters
Bhoop Ram 1641 meters 1249 meters 1370 meters
Jeet Ram 1930 meters 1538 meters 1659 meters
Looking to the location of the acquired land, we have no hesitation to hold that it had the prospects and potentiality of being used for the construction of residential buildings and commercial complex Though, there is no transaction on record which is exactly comparable with the acquired land, yet from sale transactions Ex. PW 6/A and PW 8/A and awards dated 23-2-1979 and 30-6-1982, which pertain in the pieces of land situated in Solan City within the Municipal limits, and the oral evidence, specifically, statement of one of the claimants, namely, Santosh Puri. we may hold that the just and fair market value of the aquired land at the relevant time was about Rs. 40 per square metre or Rs. 30,000 per Bigha, as awarded by the Land Acquisition Collector as well as the District Judge for land classified as Bangar Awal. The Land Acquisition Collector and the District Judge have determined the market value at a lesser rate for the acquired land, which was classified as Bangar Doem, Bangar Kadim, Ghasni, Charand and Gair Mumkin but in our view the classification of acquired land for the agricultural purpose is not relevant, looking to the common purpose of acquisition for the construction of road and uniform rate of Rs. 40 per square metre or Rs. 30,000 per Bigha should be awarded irrespective of the classification of the acquired land. Therefore, by accepting the appeal of Bhoop Ram in R.F.A. No. 9 of 1984, we modify the award to the extent that the market value of the acquired land is determined at uniform rate of Rs. 40 per square metre or Rs. 30,000 per Bigha. Though other claimants have not filed any appeal against the award, yet in exercise of our powers under Order 41, Rule 33 of the Code of Civil Procedure, we order that they will also be awarded compensation for their acquired land at this rate. In the result, the appeals filed by the Land Acquisition Collector and the State of Himachal Pradesh are dismissed and impugned award is modified accordingly.
We may give reasons for invoking extra-ordinary powers under Order 41, Rule 33 of the CPC to award uniform rate of Rs. 40 per square metre or Rs. 30,000 per Bigha to all the Respondents-claimants in these appeals. Though we have dismissed the appeals of the Land Acquisition Collector and the State of Himachal Pradesh, yet we have allowed the appeal of one of the Respondents-claimants, namely, Bhoop Ram in R.F.A. No. 9 of 1984 to the limited extent that he will be entitled to compensation for his acquired land at unifom rate of Rs. 40 per square metre or Rs. 30,000 per Bigha, as a result of which the impugned award is modified only in respect of the acquired land of Respondent-claimant Bhoop Ram but in respect of other Respondents-claimants by the same award different rates of market price are awarded according to classification of their acquired land, which creates an anomalous position. Therefore, in order to give just and fair compensation to all the Respondents-claimants whose lands have been acquired for the same purpose and by the same notification u/s 4 of the Act, it is in the interest of justice and fair play to award compensation at the same rate which has been awarded to one of them, namely, Bhoop Ram, without their filing appeal or cross-objections.
Order 41, Rule 33 of the CPC has been interpreted by the Supreme Court in its number of judgments and we may refer to a few of them. In Pannalal Vs. State Bombay and Others, the learned Judges have held in para 12:
(12) Even a bare reading of Order 41, Rule 33 is sufficient to convince any one that the wide wording, was intended to empower the appellate Court to make whatever order it thinks fit, not only as between the Appellant and the Respondent but also as between a Respondent and a Respondent. It empowers the appellate Court not only to give or refuse relief to the Appellant by allowing or dismissing the appeal but also to give such other relief to any of the Respondents as "the case may require" In the present case, if there was no impediment in law the High Court could therefore, though allowing the appeal of the State by dismissing the Plaintiff''s suits against it, give the Plaintiff a decree against any or all the other Defendants who were parties to the appeal as Respondents. While the very words of the section make this position abundantly clear the illustration puts the position beyond argument.
These principles are reiterated in Koksingh Vs. Smt. Deokabai, wherein the Respondent did not appeal from the decree of the trial Court negativing her claim in a suit for charge on the property, still the High Court had granted a decree for the enforcement of the charge. Upholding the decree of the High Court, the learned Judges of the Supreme Court have held that under Order 41, Rule 33 of the CPC the High Court was competent to pass such a decree in favour of the Respondent notwithstanding the fact that the Respondent did not file any appeal from the decree.
In a later judgment of the Supreme Court in Mahant Dhangir and Another Vs. Madan Mohan and Others, the learned Judges have further elaborated that:
...If the cross-objection filed under Rule 22 of Order 41, CPC was not maintainable against the co-Respondent, the Court could consider it under Rule 23 of Order 41, Code of Civil Procedure, Rule 22 and Rule 33 are not mutually exclusive. They are closely related with each other. If objection cannot be urged under Rule 22 against co-Respondent, Rule 33 could take over and come to the rescue of the objector. The appellate Court could exercise the power under Rule 33 even if the appeal is only against a part of the decree of the lower Court. The appellate Court could exercise that power in favour of all or any of the Respondents although such Respondent may not have filed any appeal or objection The sweep of the power under Rule 33 is wide enough to determine any question not only between the Appellant and Respondent, but also between Respondent and co-Respondent. The appellate Court could pass any decree or order which ought to have been passed in the circumstances of the case. The appellate Court could also pass such other decree or order as the case may require. The words "as the case may require" used in Rule 33 of Order 41 have been put in wide terms to enable the appellate Court to pass any order or decree to meet the ends of justice. What then should be the constraint? We do not find many. We are not giving any liberal interpretation. The rule itself is liberal enough. The only constraints that we could see may be these: That the parties before the lower Court should be there before the appellate Court. The question raised must properly arise out of judgment of the lower Court. If these two requirements are there, the appellate Court could consider any objection against any part of the judgment or decree of the lower Court. It may be urged by any party to the appeal. It is true that the power of the appellate Court under Rule 33 is discretionary. But it is a proper exercise of judicial discretion to determine all questions urged in order to render complete justice between the parties. The Court should not refuse to exercise that discretion on mere technicalities.
From the above pronouncements of the Supreme Court it is clear that Order 41, Rule 33 confers wide and unlimited jurisdiction on Courts to pass a decree in favour of a party who has not preferred any appeal, there are however certain well defined principles in accordance with which that jurisdiction should be exercised. Normally a party who is aggrieved by a decree should file appeal or cross-object ions against it within a period of limitation, but there are well recognised exceptions to this rule. Some of them are: (i) Where as a result of interference in the appeal it becomes necessary to readjust the rights of other parties; (ii) where the question is one to settle mutual rights and obligations between the same parties and (iii) when relief prayed for is single and indivisible but is claimed against the number of Defendants.
So far R.F.A. No. 60 of 1984 is concerned, the District Judge has already determined the market value at the rate of Rs. 40 per square metre or Rs. 30,000 per Bigha for the acquired land measuring 2786 square metres for Bagicha Awal and Bagicha Ghasni belonging to original claimant Matu Ram on the basis of award Ex. RX passed in Land Reference Case of Bhoop Ram. The other evidence on record, specially, awards Ex. PA and PG pertaining to pieces of land in Solan City, within the Municipal limits, are not comparable to the acquired land in respect of location, time and other relevant factors. Learned Counsel appearing for the Appellant-claimant is not able to satisfy us that the impugned award calls for interference on any ground, as such, we dismiss the appeal.
Coming to R.F.A. No. 113 of 1983 wherein market value of the acquired land has been determined at the rate of Rs. 33,308 per Bigha for Bangar-va-Bagicha and Rs. 18,185 for Bangar Kadim -va-Toda, we may hold that the uniform rate of Rs. 30,000 per Bigha would be awarded for the acquired land irrespective of its classification. We find that the District Judge has rightly assessed the oral and documentary evidence on record to hold that it is not of any assistance for determining the market value of the acquired land being not proximate in respect of location, time and other relevant factors By sale transaction Ex. PC, 6 Biswas of land was sold for Rs. 24,000 on 8-11-1978, much later to 12-9-1974 when notification u/s 4 of the Act was issued Awards Ex. PF, PG and PH also pertain to pieces of land situated in Solan City within Municipal limits, whereas, the acquired land at the time of acquisition was in the Panchayat, though at the boundary of the Municipal limits. Therefore, the appeal of the Land Acquisition Collector and the State of Himachal Pradesh is without any merit and is dismissed and the impugned award is modified accordingly. No costs.