State of H.P. vs Kalwati

Sureshwar Thakur, J.—All these appeals are being disposed of by a common judgment as these pertain to acquisition of land acquired for construction of Shoghi-Dhari road by common notification issued under Section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as the Act).

The lands of the respondents/claimants were brought under acquisition vide notification issued under Section 4 of the Act published on 5.6.1995. The Land Acquisition Collector, H.P. Public Works Department, Winter Field, Shimla-3 vide Award No. 3 of 96 of 3.6.1996 awarded as under compensation for lands of different categories:

The claimants/respondents, who were not satisfied with the award of the Land Acquisition Collector, filed Land Reference Petitions under Section 18 of the Land Acquisition Act. The learned District Judge when seized of the reference petitions, accepted the reference petitions preferred by the respondents/claimants and enhanced the compensation amount in favour of the respondents as comprised in the relief portion of the awards.

The State of H.P. is aggrieved by the award rendered by the learned District Judge, hence, has preferred the instant appeals before this Court.

The learned counsel appearing for the respondents/claimants has urged before this Court that given the fact that the judgment in RFA No. 352 of 2000 and other connected RFAs pertain to lands acquired for a purpose similar to one as the lands of the respondents have been acquired, hence, the benefit of the rates previously assessed and awarded by this Court qua lands brought under acquisition therein, be too assessed as compensation for the lands of the claimants/respondents. The learned Deputy Advocate General contested the factum of the applicability of the judgment rendered by this Court in RFA No. 352 of 2000 along with other connected RFAs on the score of the State of Himachal Pradesh when having instituted an appeal before this Court assailing the award rendered by the learned District Judge while trying reference petitions under Section 18 of the Act and the respondents having omitted to assail the award passed by the learned District Judge by filing cross-objections and cross-appeals, hence, the award rendered by the learned District Judge is to be either affirmed or set aside by this Court while exercising the Appellate jurisdiction. The said contention had no probative worth or vigour. It is tentatively overshadowed by the impact of the provisions of Order XLI, Rule 33 of the Code of Civil Procedure which provisions are extracted hereinbelow and which have been pressed into service by the learned counsel appearing for the respondents/claimants:-

"33. Power of Court of Appeal-The Appellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection [and may, where there have been decrees in cross-suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees]:"

The provisions of Order XLI, Rule 33 of the CPC clothe this Court with a plenary jurisdiction to pass or make such further and other decree or order as the case may require. The said power vested in this Court under the provisions of Order XLI, Rule 33 of the CPC extracted hereinabove are open to be exercisable by the Court of Appeal as this Court is, even in the absence of any of the respondents in the memo of parties before the Appellate Court having omitted to file any cross appeal or cross-objections ventilating therein their grievance against the award impugned at the instance of the State. Now, for determining whether this Court has the jurisdiction to apply to the extant lis the judgment as relied upon by the learned counsel for the respondents, even in the absence of the respondents having omitted to file cross-objections against the judgment rendered by the learned District Judge, Shimla while trying the petition under Section 18 of the Act, an advertence is to be made to the import and significance of the phraseology "to pass or make such further or other decree or order as the case may require". An incisive reading of the import of the aforesaid phraseology occurring in Order XLI, Rule 33 upsurges no inference other than that of this Court being empowered to, in variance to the decree rendered by the judgment appealed against before this Court, in the interest of justice, pass any just and expedient order as deemed fit and appropriate. In other words, a power is vested in this Court to mould the relief, especially when as in this case, to beget parity inter se the respondents/claimants, whose lands have been subjected to acquisition along with the lands of the appellants in RFA No. 352 of 2000 and other connected RFAs, for a common public purpose, inasmuch as all the categories of the land of the appellants therein having been assessed to uniform rates of compensation, whereas, in the event of the respondents herein being, hence, denied equivalent/uniform rate of compensation for all categories of land would beset accrual or ensueal of injustice to them. Even though this Court has vindicated the submission of the learned counsel for the respondents of this Court being empowered with a plenary jurisdiction to mould the relief or to pass appropriate orders in favour of the respondents even by applying the judgment comprised in RFA No. 352 of 2000 and other connected RFAs, wherein the lis pertains to lands subjected to acquisition for a purpose common to the lands subjected to acquisition herein. Nonetheless, in the face of a perusal of the impugned award rendered by the learned District Judge, Shimla unearthing the factum of his having in consonance with a string of judicial pronouncements mandating awarding of or assessing of uniform rate of compensation for all the categories of lands subjected to acquisition for a purpose common. Consequently, when, hence, the impugned award rendered by the learned District Judge, Shimla is in consonance with the verdict rendered in RFA No. 352 of 2000 along with other connected RFAs as also is in consonance with the catena of decisions mandating the assessment of a uniform rate of compensation for all categories of land subjected to acquisition for a purpose common. Besides when no apposite evidence is existing on record to forcefully portray the fact that the lands of the respondents herein and the lands of the appellants in RFA No. 352 of 200 and other connected RFAs were in close proximity to each other so as to prod this Court to from the conclusion that the rates as assessed qua the lands of the appellants in RFA No. 352 of 2000 and other connected RFAs be too the rates assessable by this Court qua the lands of the respondents, obviously, constrain this Court to not assess compensation qua the lands of the respondents herein at par with the appellants in RFA No. 352 of 2000 and other connected RFAs. In aftermath, the impugned awards of the learned District Judge suffer from no infirmity. Consequently, the awards passed by the learned District Judge, Shimla which are impugned before this Court, are affirmed and maintained. All the appeals are disposed of accordingly. No costs. All pending applications also stand disposed of.