UNION OF INDIA v. PRAMOD GUPTA (D) BY LRS. AND ORS.

A not find any development had taken place as on that date. When we are determining compensation under Section 23(1), as on the date of notification under Section 4( I), we have to consider the situation of the land development, if already made, and other relevant facts as on that date. No doubt, the land possessed potential value, but no development had taken place as on. the date. In view of the obligation B on the part of the owner to hand over the land to the City Improvement Trust for roads and for other amenities and his requirement to expend money for laying the roads, water supply mains, electricity etc., the deduction of 53% and further deduction towards development charges @ 33-113%, as ordered by the High Court, was not illegal." c [See also Basavva (Smt.) and Ors. v. Sp/. Land Acquisition Officer and Ors., [ 1996] 9 sec 640]

The High Court, as has been noticed hereinbefore, without assigning any reason discarded the method of valuation adopted by the reference court. D Before the reference court, the Respondents herein only relied upon the judgments and awards granting compensation for acquisition of similar lands. The High Court while allowing an application for adduction of additional evidence referred only to certain notifications issued by the Union of India in the year 1965 which were meant for the residential plots whereby allegedly the market value was stated to be 150 per sq. yd. for lands situated at Vasant E Vihar wherefor certain deductions were made @ 12% p.a. therefrom in respect of the lands acquired under the notification dated 24. l 0.1961.

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

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

In Jawajee Nagnatham v. Revenue Divisional Officer, Adilabad, A.P. G and Ors., [1994] 4 sec 595], this Court observed :

"........ The market value of the land for proper stamp duty has to be determined as per the law under Section 47-A itself. That view was followed by another learned Single Judge in P. Sasidar v. Sub- Registrar It is, therefore, clear that the Basic Valuation Register H prepared and maintained for the purpose of collecting stamp duty has

U.0.1. v. PRAMOD GUPTA (D) BY LRS. [S.B. SINHA, J.] 91

no statutory base or force. It cannot form a foundation to determine the market value ~entioned thereunder in instrument brought for registration. Equally it would not be a basis to determine the market value under Section 23 of the Act, of the lands acquired in that area or town or the locality or the taluk etc. Evidence of bona fide sales between willing prudent vendor and prudent vendee of the lands acquired or situated near about that land possessing same or similar advantageous features would furnish basis to determine market value."

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

We may at this juncture notice a decision of this Bench relied upon by C Mr. Harish Salve being DDA and Ors. v. Joginder S. Monga and Ors., [2004] 2 SCC 296. Therein this Court was not concerned with valuation of land under the Land Acquisition Act. In that case DOA granted lease in favour of a cooperative society in terms of the Delhi Development Act, 1957 and the rules framed thereunder, known as the Delhi Development Authority D (Disposal of Developed Nazul Land) Rules, 1981. Some members of the " cooperative society intended to sell the land wherefor the DOA was entitled to recover a portion of unearned increase in value i.e. difference between the premium paid and market value of plot at the time of sale. The Government of India, however without enforcing any increase in the sale price of the land extended the validity of the land rates in force till 31.3 .1996 by a circular dated 11.11.1994. A case of discrimination was raised by Monga vis-a-vis one Raj iv Gupta. Although the latter received the benefit of priority under the policy of conversion from leasehold to freehold, the respondent therein was denied the same. The said decision, therefore, will have no application to the fact of the present matter, as therein 50% of the unearned increase was to be paid to the DOA in terms of the covenant contained in the deed of lease; and while determining the amount DOA was required to take into account the amount of consideration specified in the agreement and/or clearance certificate issued by the Income Tax Officer, which was not done.

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

"5. It is seen that the reference court blissfully overlooked the admission of the owner on the surmise that it is an estimate made by H

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A the claimant and the evidence of the sale deeds under Exs. 38 and 44 being prevailing prices, it acted th~reon and determined the compensation. The approach of the reference court is clearly illegal and that of the High Court is quite correct and it was the only way in which the market value could be determined on the face of the evidence on record. The reference court committed manifest error in B determining the compensation on the basis of sq. ft. When lands of an extent of 20 acres are offered for sale in an open market, no willing and prudent purchaser would come forward to purchase that vast extent of land on sq. ft. basis. Therefore, the reference court has to consider the valuation sitting on the armchair of a willing prudent c hypothetical vendee and to put a question to itself whether in given circumstances, he would agree to purchase the land on sq. ft. basis. No feat of imagination is necessary to reach the conclusion. The answer is obviously no. This aspect of the matter was totally ignored by the reference court and mechanically accepted the two sale deeds to enhance the compensation at a value of nearly Rs 35,000 per acre. D In State of MP. v. Shantabhai and V.M Salgoacar & Brother Ltd v. Union of India, this Court had accepted the principle that when the owner himself has purchased the land under acquisition, the consideration mentioned in the sale deed would form the basis to determine the market value. Though the High Court has relied on the sale deeds under Exs. 65 and 66 relating to the lands in Nitya11and Nagar Colony, it is also necessary to go into that aspect of the matter in the view we have stated above."

Having noticed the legal principles, we are of the opinion that this case merited a different treatment at the hands of the High Court. The land in question was acquired for a University. The University was constructed in a large area. By reason of the two notifications in question alone, about 5000 bighas of lands were acquired. Out of the said 5000 bighas, the lands needed for actual construction of the building may be a few bighas only. A large portion of the land must have been kept vacant for future development as also for other purposes e.g. sport and other activities. The area consisting of stones might not have been utilized for the purpose of raising any construction. A portion of land admittedly contained minerals. A number of minerals were said to be deposited in the land in question, namely, mica, berill quards and china clay. The Respondents, however, having regard to the materials on records confined their claim only to China clay. 19% of the total minerals bearing land is said to have been exploited. How far these minerals bearing

U.0.1. v. PRAMOD GUPTA(D) BY LRS. [S.B. SINHA, J.] 93

land were suitable for raising construction is a matter of guess. As per the evidence on record the minerals can be found upto a depth of 60 ft. It is not necessary for us to go into this question in details as the High Court did not advert thereto. But suffice it to say that for the purpose of carrying out mining operation, the Respondents were required to comply with the safety provisions contained in the Mines Act, 1952 'and the rules and regulations framed thereunder. B The Reference Court and the High Court unfortunately did not consider the question as to what amount was required to be expended for bringing the said area back to the normal so as to enable the University authorities to raise construction thereon. Minerals were evidently taken out by taking recourse C to the quarry method, but there is no evidence adduced by the Respondents to show that the pits caused by such mining activities have already been filled up. We have been taken through the evidence adduced on behalf of the Respondents. The witnesses examined on behalf of the Respondents did not state as to when the pits had been filled up or what was the costs incurred D . therefor. It is also difficult to rely on the said evidence as witnesses examined on behalf of the Respondents were not expert witnesses. No document has . also been filed in support of the case of the Respondents. Mr. Ramamurthi when confronted with this question, conceded that there does not exist any satisfactory evidence on the said issue. ··-E' In fact the Reference Court or the High Court did not address themselves on the question that the market value of the acquired lands was required to be determined having regard to the largeness of area and the purpose for ) which they are required, namely, for the University and not for the development of the township or the residential colony wherefor different standards may have to be adopted. The Reference Court and the High Court should have also taken into consideration the fact that the lands in question being of different categories would fetch different prices and same price might not have been available for all types of lands. Recourse taken by the High Court to the circulars issued for the lands acquired for residential purpose only therefore will have no application in the facts and circumstances of the present case.

PAYMENT OF INTEREST DURING THE PERIOD 17TH JANUARY, 1972 TO 27TH M4Y, 1980 It is not in dispute that the proceedings between 17th January, 1972 to H

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A 27th May, 1980 remained stayed on the representation of the Respondents that they would not be claiming interest at the enhanced amount of compensation, if any, during the period of stay. By an order dated I ?th January, 1972, the Refer~ncec..Court recorded: . •:"! h· "Shri Gupta learned Counsel for the petitioners states that the petition B may be st~yed sin~ die and that the petitioner would not be claiming any interest on the enhanced amount of compensation money, if any, for the period of stay. Counsel for UOI has no objection to the proposed . stay on the terms stated. I would accordingly stay the proceedings in this case sine die on the condition that no interest will be awarded to the petitioners on the enhanced compensation which may be eventually c granted to him, for the period of stay."

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

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

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

Sections 28 and 34 of the Act read as under: \ "28. Collector may be directed to pay interest on excess compensation.-[[ the sum which, in the opinion of the court, the Collector ought to have a awarded as compensation is in excess of the sum which the Collector did award as compensation, the award of the Court may direct that the Collector shall pay interest on such excess at the rate of nine per centum per annum from the date on which he took possession of the land to the date of payment of such excess into Court.

Provided that the award of the Court may also direct that where such excess or any part thereof is paid into Court after the date of expiry of a period of one year from the date on which possession is taken, interest at the rate of fifteen per centum per annum shall be payable

U.0.1. v. PRAM OD GUPTA (0) BY LRS. [S.B. SINHA, J.] 95 from the date of expiry of the said period of one year on the amount of such excess or part thereof which has not been paid into Court before the date of such expiry.

34. Payment of interest.-When the amount of such compensation is not paid or deposited on or before taking possession of the land, the ·, Collector shall pay the amount awarded with interest thereon at the rate of nine per centum per annum from the time of so taking possession until it shall have been so paid or deposited.

Provided that if such compensation or any part thereof is not paid or deposited within a period of one year from the date on which possession is taken, interest at the rate of fifteen per centum per annum shall be payable from the date of expiry of the said period of one year on the amount of compensation or part thereof which has not been paid or deposited before the date of such expiry"."

It may not, thus, be correct to contend that the said provisions are so imperative in character that waiver thereof is impermissible in law or would be against public interest. Grant of interest in terms of Section 28 of the Land Acquisition Act is discretionary. Only rate of interest specified therein is mandatory. Section 34 of the Act ex facie, however, appears to be imperative in character as the word 'shall' has been used. A discretion vested in the court, it is trite, may not be exercised where the right to cfaim interest has been waived expressly by the parties and/or their counsel. Even a mandatory provision of a statute can be waived. . ''"·· ·•· 'l .-.,_;;,1J. _"\; •

The effect of Section 28 of the Act came up for consideration before I this Court in Raghubans Narain Singh v. The Uttar Pradesh Government, through Collector of Bijnor, AIR (1967) SC 465 wherein this Court held the said provision to be discretionary in character observing that it is for the court to consider whether in the facts and circumstances of the case, such interest should be directed to be paid at all. It is now trite that the court having regard to the facts and circumstances of a particular case as, for example, where there is a short interval between the award and the payment, may not direct grant of any interest.

The question came up directly for consideration before a Division Bench of this Court in State of Assam and Anr. v. Jitendra Kumar Senapati and Ors., AIR (1981) SC 969: [1981] 2 SCC 221 wherein the claimants agreed to the amount awarded to them subject to Government making payment H

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A within the 31st March, 1969 stating:

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

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

"Although it is true that in the agreement dated February 24, 1969 . which the respondents signed and sent to the government along with their letter of that date they stated that they would not make any further claim in regard to "compensation", but that expression, in our opinion, was clearly used by them not in the sense in which it is used in Sections 23 and 34 of the Act but more comprehensively, meaning reimbursement in full satisfaction of their claim in respect of the acquisition. That this was so was made clear in the letter addressed to them by the Under-Secretary in which he expressly stated that "you and your co-sharers will make no further claim for the land thus acquired by the Government".

The Under-Secretary did not use the word "compensation" in his letter nor did the respondents use it in their reply in which, on the E .·' other hand, they made a grouse of the hardship which the delay in ·payment had caused to them and brought it to the pointed attention of the Under-Secretary that immediate payment was an essential part cif the bargain. In the agreement signed by them (as pointed out · above) they. no doubt used the word "compensation" but they added \ F that they would make no further claim in regard to it if actual payment was received by them before March 31, 1969. The condition thus attached by them to the agreement would show that by the acceptance of the quantified sum of Rs 4,41,202.45 they condoned the delay in payment and also relinquished all future claims to interest. If it were otherwise, there is no reason why the respondents would not have G expressly reserved their right to claim interest under Section 34 of the Act. The tenor of the two letters coupled with the agreement leads to no other conclusion."

H It is not in dispute that if a person alters its position pursuant to the representation made by the other side, the principles of estoppel wo~ld be -

, U.0.1. v. PRAMOD GUPTA (D)BY LRS. [S.B. SINHA, J.] 97

applicable and by reason thereof, the person making the representation would not be allowed to raise a plea contra thereto. In Krishna Bahadur v. Puma Theatre and Ors., [2004] 8 SCC 229 this Court held:

"9. The principle of waiver although is akin to the principle of estoppel; the difference between the two, however, is that whereas estoppel is not a cause of action; it is a rule of evidence; waiver is contractual and may constitute a cause of action; it is an agreement between the parties and a party fully knowing of its rights has agreed not to assert a right for a consideration. '(

10. A right can be waived by the party for whose benefit certain requirements or conditions had been provided for by a statute subject to the condition that no public interest is involved therein. Whenever waiver is pleaded it is for the party pleading the same to show that an agreement waiving the right in consideration of some compromise came into being. Statutory right, however, may also be waived by his conduct." D [See also Vijay Cotton and Oil Mills Ltd. v. The State of Gujarat, (1969] 2 SCR 60 at 63].

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

The High Court has relied upon a decision of this Court in Suptd. Of Taxes, Dhubri and Ors. v. Mis. Onkarmal Nathmal Trust, AIR (1975) SC F 2065 : [1976] I sec 766. In that case the proceedings were not stayed pursuant to any undertaking or representation made by the claimant. The order of interim injunction was passed whereunder the claimants enjoyed certain benefits and in that fact situation the plea of waiver was raised. The Constitution Bench observed: G "23. The third contention of the Solicitor-General is that the . respondents waived service of a notice within two years of the expiry of the return period by reason of the order of injunction obtained by them. Waiver is either a form of estoppel or an election. The doctrine of estoppel by conduct means that where one by words or conduct H

98 SUPREME COURT REPORTS [2005] SUPP. 3 S.C.R.

A wilfully causes another to believe in the existence of certain state of things and induces him to act on that belief, or to alter his own previous position, the former is concluded from averring against the latter a different state of things as existing at that time. The fundamental requirement as to estoppel by conduct is that the estoppel must concern an existing state of facts. There is no common law estoppel founded B on a statement of future intention. The doctrine of promissory estoppel is applied to cases where a promiser has been estopped from acting inconsistently with a promise not to enforce an existing legal obligation. This doctrine differs from estoppel properly so called in (· that the presentation relied upon need not be one of present fact. The \ c second requirement of an estoppel by conduct is that it should be unambiguous. Finally, an estoppel cannot be relied on if the result of giving effect to it would be something that is prohibited by law. Estoppel is only a rule of evidence. One cannot found an action upon estoppel. Estoppel is important as a step towards relief on the hypothesis that the defendant is estopped from denying the truth of D something which he has said."

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

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

It is, therefore, not correct to contend that there cannot be any waiver of the right to claim interest. Statutory provisions are made for payment of interest with a view to compensate a party who had suffered damages owing to a positive action or inaction of the other resulting in blockade of money which he would otherwise have received. A party who himself represents e

U.0.1. v. PRAMOD GUPTA (D) BY LRS. [S.B. SINHA, J.) 99 before the court of law that he would not claim interest with a view to obtain an order of stay which would be for his own benefit, in our opinion, could not be permitted to take advantage of his own wrong. [See Sushi/ Kumar v. Rakesh Kumar, [2003] 8 SCC 673 and Laxminarayan R. Bhattad and Ors. v. State of Maharashtra and Anr., [2003] 5 SCC 413.

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

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

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

APPLICABILITY OF SECTION 25 OF THE ACT E It is not in dispute that in the proceeding giving rise to Award No. 2040 dated 2.12.1967 a claim was made by the Respondent - Smt. Pramod Gupta claiming compensation to the extent of I/4th share in the entire land. It has also not been disputed before us that Section 25 contains a substantive provision of law and not a procedural one and, thus, the statutory provision as it existed prior to its amendment in the year 1984 shall apply. [See Land F Acquisition Ofjicer-cum-DSWO, A.P. v. B. V Reddy and Sons, [2002] 3 SCC 463 and Krishi Utpadan Mandi Samiti v. Kanhaiya Lal and Ors., [2000] 7 sec 756]. Section 25 of the Act, as it stood prior to its amendment reads: G "25. Rules as to amount of compensation.-{ I) When the applicant has made a claim to compensation, pursuant to any notice given under Section 9, the amount awarded to him by the court shall not exceed the amount so claimed or be less than the amount awarded by the Collector under Section 11. H

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A (2) When the applicant has refused to make such claim or has omitted without sufficient reason (to be allowed by the Judge) to make such claim, the amount awarded by the court shall in no case exceed the amount awarded by the Collector.

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

The High Court negatived the contention of the Appellant in regard to the bar under sub-section (2) of Section 25 of the Act opining : c (i) For attracting the said provision service of notice upon the occupier or the person interested as envisaged under Section 9(3) is mandatory and admittedly no notice under Sections 9 and l 0 had been served by the Collector upon the Claimant-Respondent.

D (ii) Having regard to the Parliamentary amendment carried out by reason of Land Acquisition Act, 1984, the bar ceases to exist.

(iii) In view of the decision of this Court in Bhag Singh v. Union Territory of Chandigarh, AIR ( 1985) SC 1576 and Union of India and Anr. E v. Raghubir Singh (dead) by L.R.s etc., JT (1989) 2 SC 427, it becomes obligatory upon the State to pay compensation on the basis of the market value of the land acquired and in particular having regard to the judgments of the courts operating in the field.

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

So far as non-service of notice under Sub-section (3) of Section 9 is concerned, we may, however, notice that in the awards of the Collector, it was categorically stated that the notice under Sections 9 and I 0 of the Act had been issued. Before the High Court only the records of the Reference .· Court were available. The learned counsel appearing on behalf of the Respondents stated before us that the fact as to whether such notices had been served or not could only be ascertained from the records of the Collector.

H Although the question as regard service of notice is a pure question of

U.0.1. v. PRAMOD GUPTA (D) BYLRS. [S.B. SINHA, J.] 101 fact, we may observe that the said question may have to be answered keeping in view certain legal principles, viz., (i) the object for which Section 9 has been enacted; (ii) the situation in which the Respondent had filed a claim having knowledge of the proceedings under the Land Acquisition Act as also service of notice in terms of Sub-section (I) of Section 9 thereof; (iii) service of notice under Sub-section (I) of Section 9 together with service upon those persons may substantially serve the purpose; and (iv) the prejudice doctrine.

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

In Uggar Sen Kashyap v. Union of India and Ors., (1973) 9 DLT 59, C the Delhi High Court held that if the petitioner has taken part in a proceedings although the claimant has not been served with any notice, he cannot raise any grievance in this behalf. In a situation of this nature, even the doctrine of prejudice may be invoked [See State of Punjab v. Sawaran Singh, (2005) 5 SCALE 601]. D We may furthermore notice that in Sureshchandra C. Mehta v. State of Karnataka and Ors., [1994] Supp 2 SCC 511, this Court held that service of notice upon the recorded persons whose names appear in the revenue records only would subserve the purpose for which notice is required to be served. E In a case where the Calcutta High Court distinguished the said decision arising out of the West Bengal Land (Requisition and Acquisition) Act, 1948 stating that the said decision was not applicable having regard to the statutory provisions contained in Section 17(5) of the Bangalore Development Authority Act, 1976, this Court in W.B. Housing Board and Ors. v. Brijendra Prasad Gupta and Ors., [1997] 6 SCC 207 differing with the view of the Calcutta F High Court opined:

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

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

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

It is relevant to notice the following observati9ns of the Reference Court:

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

Nothing has been shown before the High Court that the said findings of the Reference Court were unfounded. The High Court in its judgment has proceeded computing the amount of compensation on the basis of the circle

U.0.1. v. PRAMOD GUPTA (D) BY LRS. [S.B. SINHA, J.] 103 rates without considering this aspect of the matter. A AMENDMENT OF REFERENCE AND ADDITIONAL EVIDENCE :

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

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

The High Court furthermore committed a serious error in coming to the conclusion that the said deed was executed prior to the date of acquisition inasmuch as the notification under Section 4 was issued on 24.10.1961. D It further appears that Shri Rajiv Gupta purchased I/8th share of the amount of compensation payable to his predecessors-in-interest for a sum of Rs. 30,000 by a deed of sale dated 23.1.1980, a copy whereof has been annexed with I.A. 8 of 2005.

We have noticed hereinbefore that before the Land Acquisition Collector E the Respondents had claimed only a sum of Rs. 12,000 per bigha. Despite the same the Respondents filed an application purported to be under Order 6, Rule 17 of the Code of Civil Procedure praying for amendment of Memo of Appeal and the Reference claiming higher compensation. The Respondents appear to have further filed applications under Order 41, Rule 27 of the Code F for adduction of additional evidence in support of their amended claim. The High Court while rejecting the claim application filed by the Appellants allowed the application for amendment as also the application for adduction of additional evidence filed by the Respondents.

Mr. Salve submitted that the bar under Section 25 of the Act must be G considered having regard to Section 53 thereof which provides for applicability of the provisions of the Code of Civil Procedure. The learned counsel urged that the Respondents had already filed an application for amendment of Memo of Appeal in terms of Order 41, Rule 3 of the Code of Civil Procedure, which having been allowed, would amount to amendment of the claim application H

104 SUPREME COURT REPORTS [2005] SUPP. 3 S.C.R.

A in the reference case itself. Strong reliance in this behalf has been placed on Harcharan v. State of Haryana, [1982] 3 SCC 408 and Ghaziabad Development Authority v. Anoop Singh and Anr., [2003] 2 SCC 484.

We do not agree. The pleadings before the Trial Court are the basis for adduction of evidence either before the Trial Court or before the Appellate B Court. By amending the memo of appeal the original pleadings cannot be amended. The claimants - Respondents made their claim before the Reference Court claiming compensation for the lands acquired under two different references at a certain rate. They are bound by the said pleadings. Section 53 merely provides for applicability of the provisions of the Code of Civil C Procedure including the one containing Order 6, Rule 17 thereof. Order 6, Rule 17 of the Code of Civil Procedure postulates amendment of pleadings at any stage of the proceedings. Before an amendment can be carried out in terms of Order 6, Rule 17 of the Code of Civil Procedure the court is required to apply its mind on several factors including, viz., whether by reason of such amendment the claimant intends to resile from an express admission made by D him. In such an event the application for amendment may not be allowed. [See. Mis. Modi Spinning & Weaving Mills Co. Ltd. and Anr. v. Mis. Lad.ha Ram & Co. AIR (1977) SC 680, Heeralal v. Kalyan Mal and Ors., [1998] I SCC 278] and Sangramsinh P. Gaekwad and Ors. v. Shantadevi P. Gaekwad (Dead) thr. LRs. and Ors., JT (2005) l SC 581].

E Delay and !aches on the part of the parties to the proceedings would also be a relevant factor for allowing or disallowing an application for amendment of the pleadings. The High Court neither assigned sufficient or cogent reasons nor applied its mind as regard the relevant factors while allowing the said application for amendment. It has also not been taken into p consideration that the application for amendment of pleading might not have been maintainable in view of statutory interdict contained in Sub-section (2) of Section 25 of the Act, if the same was applicable.

In Anoop Singh, (supra), whereupon reliance has been placed by Mr. Salve, the Division Bench of this Court did not have any occasion to consider that decisions of this Court in Krishi Utpadan Mandi Samiti v. Kanhaiya Lal and Ors., [2000] 7 SCC 756 and B. V. Reddy, (supra), which, it will bear repetition to state, are authorities for the proposition that once it is held that Section 25(2) of the Act would be attracted in a given case, the parties are estopped and precluded from claiming any amount higher than that claimed in their claim petition before the Collector. An observation made to the effect

U.0.1. v. PRAM OD GUPTA (D) BY LRS. [S.B. SINHA, J.] I05 that an application under Order 6, Rule 17 would be maintainable having regard to Section 53 of the Act, with utmost respect, does not constitute a binding precedent. No ratio has been laid down therein and the observations made therein are without any discussion. Furthermore no reason has been assigned in support of the said proposition of law.

In Harcharan (supra) also this Court did not address the question as to whether Order 6, Rule 17 would be applicable in relation to the original claim petition or memo of appeal.

It may be true that not only the memorandum of appeal but also the reference was amended. Mr. Rao pointed out that the necessary amendments have been carried out in the application for reference or memorandum of appeal. In terms of Order VI Rule 18 of the Code of Civil Procedure, such amendments are required to be carried out in the pleadings by a party who has obtained leave to amend his pleadings within the time granted therefor and if no time was specified then within fourteen days from the date of passing of the order. The consequence of failure to amend the pleadings D { within the period specified therein as laid down in Order VI Rule 18 of the Code is that the party shall not be permitted to amend his pleadings thereafter unless the time is extended by the court. It is not in dispute that such an order extending the time specified in Order VI Rule 18 has not been passed.

Mr. Rao, however, would contend that in any event, three Respondents E claimed compensation @Rs. 50 per sq. yd and one@ Rs. 25 per sq. yd. and in that view of the matter having regard to the cross-objections filed by them, the High Court could have exercised its jurisdiction while allowing the cross- objections to enhance the amount of compensation to the extent of Rs.50 per sq. yd. The said argument was advanced on the premise that the Respondents F had, as noticed hereinbefore, raised a specific contention before the Reference Court that the land situated in Village Masoodpur was better than the land situated at Munirka or Ber Sarai. We are not persuaded. The finding of fact arrived at by the Reference Court to the effect that the Appellants had not been able to show that the land situated at the aforementioned village are not only inferior to the land situated at village Masoodpur and which finding G having not been reversed by the High Court, any consideration other than those which found favour with the Reference Court could not have been entertained. The High Court in its judgment has referred to various decisions showing that the rates specified in the notification issued by the Union of India would be admissible in evidence. There is nothing to show that the said H

106 SUPREME COURT REPORTS [2005) SUPP. 3 S.C.R.

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

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

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

F The submission of Mr. Rao that all the procedural requirements contained in the Land Acquisition Act were required to be strictly complied with having regard to the fact that at the relevant point of time, the right to property was a fundamental right, is misconceived. We are not, in these appeals, concerned with the action of the State in acquiring the properties but only concerned with determination of the market value thereof. G I.A. NOS. 7-8 OF 2004 :

One of the claimants Shri Rajiv Gupta s/o Shri L.R. Gupta filed an application marked as I.A. Nos. 7-8 of 2004 wherein the following prayers were made: H

U.0.1. v. PRAM OD GUPTA (D) BY LRS. [S.B. SINHA, J.] I 07

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

(2) Set aside the judgment and order dated October 5, 2001 and to remand the case back to the High Court of Delhi for fresh disposal. B (3) To stay the payment to L.R. Gupta HUF decree holder in Execution Petitions No. 1I7/2002, I I 9/2002 titled Raj iv Gupta and Ors. v. U.0.1. and Ex. No. I 14/2002 & I 18/2002 entitled Pramod Gupta and Ors. v. U.0.1. before the Court of Shri A.K. Pahak, A.DJ. Tis Hazari Courts, Delhi. c (4) To pass any other order which this Hon'ble Court deems just, fit and proper in the circumstances of the case."

The contention of the applicant is that the High Court committed a serious error in issuing a direction to the effect that the amount of compensation deposited by the Appellants should be disbursed in favour of Shri L.R. Gupta D HUF as in relation thereto a lis is pending in a partition suit between the parties in a competent court of civil jurisdiction.

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

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

It is interesting to note that the said direction had been passed on an application filed by Shri Raj iv Gupta for deletion of the three names of Shri H Sanjay Gupta, Smt. Sumangli Gupta and Shri L.R. Gupta and for continuing

108 SUPREME COURT REPORTS [2005} SUPP. 3 S.C.R.

A with the proceedings in his name and in the name:of Smt. Pramod Gupta, inter alia, on the ground that the bhumidhari rights continued to remain in his name and in the name ofSmt. Pramod Gupta only and not on any application filed by any party to the said proceeding in this behalf. We fail to appreciate as to how the aforementioned directions had been made by the High Court on the B application made by Shri Raj iv Gupta. We may also notice that Shri L.R. Gupta had already withdrawn a sum of money as awarded by the Reference Court, the details whereof are as under : (As shown on next page)

1::JoO.L.11J>R.AM-O&~(DTBY-LRS:{S:B:SINID'i;T.)

I. "Name Compensation Interest Interest upto Deficit Amount Received 3 J.03.91refundable upto 31.03.91 At the rate of 15% p.a. in case of restitution as per terms of order dated 23.03.87 passed by this Hon'ble Court I. Sh. L.R. Gupta 2,87,72,757.60 68,09,404 1,54,66,355 86,55,951

2. Mrs. Pramod I 0,07,04,651.23 2,87,05,730 5,41,28,748 2,54,23,018 Gupta '.> ·-·

3. Sh. Rajiv 5,27,50,055.56 1,25,11,387 2,83,53,153 1,58,41, 766 Gupta

4. Sh. Sanjay 5,27,50,055.56 1, 15,22,534 2,83,53, 153 1,68,30,619 Gupta

5. Ms. Sumangli 5,27,50,055.60 1,47,26,420 2,83,53,153 1,36,26,733 Gupta Total 28,27,27,575.55 7,42,75,475 15,46,53,562 8,03,78,087"

110 SUPREME COURT REPORTS (2005) SUPP. 3 S.C.R.

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

It will also be relevant to noti~e the",third proviso appended to sub- ~ section (2) of Section 31 of the Land' Acquisition Act which reads as under B "Provided also that nothing herein contained shall affect the liability of any person, who may receive the whole or any part of any compensation awarded under this Act, to pay the same to the person lawfully entitled thereto." c In view of the aforementioned provision there cannot be any doubt whatsoever that if and when an occasion arises either on the basis of an application filed by the interested parties or otherwise and/or upon disposal of the pending appeals, in the event Shri L.R. Gupta, HUF is found to have no title over the land in question, it would be bound to refund the entire D amount of compensation received by it together with such interest thereon, as may be determined applying the doctrine of 'restitution'.

I.A. NOS. 17-18 OF 2005:

We have hereinbefore noticed the claim of Shri Madan Gopal Gupta E and Shri Sudhir Jain. The contention of the interveners in the aforementioned application, is that no Bhumidhari right could be granted in favour of Guiab Sundari and in that view of the matter any finding on Issue No. I as framed by the Reference Court and affirmed by the High Court, should be set aside by this Court. In these appeals, this Court is concerned only with the F determ_i!iation of the question raised before us and not the inter se dispute of title between the parties. Such a question as and when adjudicated upon by the competent courts in appropriate proceedings will be binding on the parties thereto inasmuch as only who succeeds in the said proceedings will be entitled to the amount of compensation. Keeping in view the fact that neither the Reference Court nor the High Court had any opportunity to examine the said G questio"ij as has been contended by the applicants herein, we would observe that this Court had not determined the question that the Respondents herein being ·successors of Guiab Sundari were entitled to the Bhumidhari rights by teason oftQ,e:alleg~q dee_<!, ~f sa\e,.exe7uted in their favour, but we only h~ve proceeded-on-the basis-that-assuming-they-are Bhumidhars; in what manner their claim for awarding compensation should be dealt with. Any observation _,.. H

U.0.1. v. PRAMOD GUPTA (D) BY LRS. [S.B. SINHA, J.) 111 made herein by us should not be taken to mean that we have determined the A question of entitlement of the Respondents herein as Bhumidhar under the Delhi Land Reforms Act finally or otherwise. Such a finding has to be arrived at by the courts determining the said question in the pending proceedings.

CONNECTED MATTERS:

We may, however, notice that in the appeal arising out of SLP (Civil) CC No. 5724 of2004 an award was made@ Rs. 1.74 per sq. yard, although the claim of Rs. 30 per sq. yard was made and the High Court despite the fact that neither application for amendment nor adduction of additional grounds was filed, blindly followed its decision in other appeals filed by the Union '.(!: of India. No finding therein has also been arrived as to how the judgment and. award of the Reference Court was unsustainable.

CONCLUSION:

It is true that Union oflndia did not question the orders disallowing, the application for amendment filed by the Appellants and allowing the applicatio~ for amendment as also adduction of additional evidence by the Respondents herein but having regard to the peculiar facts and circumstances of thi~ ~%!! and in particular the fact that a large amount of public money is involveg,:1Yi: are of the opinion that it is a fit case where our jurisdiction of this ·C:.'!Yf.l under Article 142 of the Constitution should be invoked for the purpose of ~E setting aside the said orders with a view to do complete justice between the parties. .(h1::: ·to

i (\ j J In a case where the !is was mishandled by the State and different courts passed different orders, this Court relying upon a decision of this Court in Deb Narayan Shyam and Ors. v. State of W.B. and Ors., [2005] 2 SGC;l!S§ ·:p invoked its inherent jurisdiction under Article 142 of the Constitution stating:

"26 ... Therefore, in order to do complete justice to the parties1 it is a fit case where we need to invoke our inherent power undeP;ArJ;i.cle 142 of the Constitution. Learned Senior Counsel appearing fot·.:tlte r · State of West Bengal has made a categorical submission .,tharalltJJ.e rQJ Am ins irrespective of their qualifications will be entitled to Pay.:Sqile 6 and no money which has been drawn by the Amins in the 36 writ petitions will be recovered from them prior to 1-10-2001 as dlfect'e'd by the Division Bench of the High Court. Therefore, we direct that all the Am ins irrespective of their qualification in the minimum scale H

112 SUPREME COURT REPORTS (2005) SUPP. 3 S.C.R.

A of pay will be given Scale 6 and they will be entitled to promotion as per rules in Scales 7 and 8 as the case may be. Though the Division Bench has directed that no recovery shall be made from the Amins drawing higher pay scale for the period prior to 1-10-2001 but since the law has now been declared by this Court, we extend that period till this date i.e. no recovery shall be effected from all these Amins B in 36 writ petitions and' they shall be properly fixed in the pay scale provided for Amins in the ROPA Rules and their pay should be protected in the respective pay scales. This is being done because of the fact that the State Government is responsible for creating such anomalous situation. Had the State Government contested the matter c and consequently pursued the remedies available under law, then this • anomalous situation would not have been created. Though the Division Bench has given the benefit of the pay scales up to 1-10-200 I, the said cut-off date is extended till this date because we are invoking the inherent jurisdiction under Article 142 of the Constitution."

D CIVIL APPEAL NOS. 6825- 6832 OF 2003

For the reasons aforementioned, the impugned judgments are set aside and the matters are remitted'to the High Court for fresh consideration, in the light of the observations made hereinbefore. The appeals are disposed of accordingly. No wsts. E Civil Appeal Nos. 950, 2661 of2005, Civil Appeal Nos ..... 5566-5569...... of2005 [!\.rising outof.SLP (Civil) No. 14383 of2004, CC Nos. 5724, 9371, 11751 of2004]

These appeals were disposed of by the High Court on the basis of the judgment rendered by a Division Bench of the Delhi High Court in Bhooria and Ors. v. Union of India, 95 (2002) DL T 100 (DB).

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

v.s.s. Appeal disposed of.