SUPREME COURT OF INDIA
Ishwar Dutt
Vs
Land Acquisition Collector
Civil Appeal No. 443 of 2001 (with C.A. Nos. 490, 493, 492, 494, 489, 483, 484, 495, 485, 486, 491, 487 and 488 of 2001)
(Ashok Bhan and S.B.Sinha)
02/08/2005
ASHOK BHAN, J.
1. Claimants / appellants aggrieved against the common / similar judgments and
orders dated 20.12.1999 passed by the High Court of Himachal Pradesh dismissing
their claim for interest @ 12% granted by an earlier order of the Division
Bench of the same High Court in C.W.P. No. 510/85 dated 9.9.1985 on equitable
consideration for depriving them of their lands without taking proceedings
under the Land Acquisition Act and payment of compensation have come up in
these batch of appeals.
2. Facts being common and similar it would be sufficient to refer to the facts
of CA No. 443 of 2001 for the purposes of deciding the controversy involved in
these appeals.
3. Some areas of Himachal Pradesh before re-organisation of the State of Punjab
on 1.11.196 formed part of the erstwhile State of Punjab. Public Works
Department, Government of Punjab in the year 1966 took up the construction of
Solan-Jawanji-Dharja Road. After the re-organization of the States on 1.11.1966
the PWD Department of H.P. took over the construction. The road was finally
commissioned in the year 1968. Possession of the land owned by the appellants
comprising of Khasra No. 102/1 situated in Village Bagur, Tehsil and District
Solan, along with the lands of the large number of villages that came under the
said road construction plan was taken over in the year 1968. Though the
possession of the land was taken over from the Land-owners in December, 1968 no
steps were taken to formally acquire the land by issuing notification under
Section 4 of the Land Acquisition Act, 1894
[hereinafter referred to as 'the Act').
4. Having failed to secure justice to get any compensation or even step being
taken by the Government for acquiring the land of nearly 17 years, a public
interest writ petition No. 510 of 1985 titled Chander Kant Sharma and &
others vs. State of Himachal Pradesh was filed. The State of Himachal Pradesh
failed to justify any valid reasons for not taking steps to get the land
acquired and for not paying any compensation to the Land-owners. Finding
grievance of the writ petitioners to be genuine the High Court vide its
judgment and order dated 9.9.1985 directed the respondents to complete the
acquisition proceedings within a time frame and further directed them to pay to
the writ petitioners interest @ 12% per annum from the date of taking over of
possession till the date of payment of interim compensation and of final
compensation, if there is enhancement. It was observed that the aforesaid
interest payable was in the nature of equitable compensation and such interest
shall be in addition to the compensation, solatium and interest at the
statutory rate which would be paid to the writ petitioners under the law
whether awarded by the Collector or enhanced by the Court and such interest shall
not be taken into consideration in any proceeding under the Act while awarding
the statutory compensation (direction No. 3). The Division Bench gave the
following directions for expeditious relief to the writ petitioners:
"1. The acquisition proceedings in respect of villages Ser Chirag, Tawa
Talara and Gatool shall be completed on or before January 31, 1986 and those in
respect of land situate in village Deon Dhar shall be completed on or before
June 30, 1986.
2. The petitioners shall be paid as and by way of interim compensation, without
prejudice to their rights and contentions to claim the compensation due to them
in accordance with law in the course of the proceedings under the Act, a sum
determined on the basis of the tentative market value set out in column No. 9
of the statements in a tabular form annexed to the affidavits of the
Superintending Engineer and the Land Acquisition Officer. The interim
compensation will be paid to the petitioners after explaining the aforesaid
position to them against a receipt to be executed by them acknowledging the
payment towards the ultimate compensation to which they become entitled in
accordance with law. The payment will be made within a period of four weeks
from today.
3. On the amount of compensation payable to the petitioners, interest at the
rate of 12 per cent per annum shall be paid from the date of the taking over of
possession till the date of payment of interim compensation and of final
compensation, if there is enhancement. The interest payable accordingly is in
the nature of an equitable compensation and such interest will be in addition
to the compensation, solatium and interest at the statutory rate which will be
paid to the petitioners under the law, whether awarded by the Collector of
enhanced by the Court, and such interest will not be taken into consideration
in any proceeding under the Act, while awarding the statutory compensation.
4. The tabular statement appended to the affidavits of the Superintending
Engineer and the Land Acquisition Collector gives the requisite information
relating to the land situate in other eleven villages which has been taken
possession of for the purposes of the construction of the road in question. The
land-owners, whose land in those villages has been taken possession of, will
also be entitled to similar treatment. Under the circumstances, in order to
ensure similar treatment being according to persons identically situate as the
petitioners and in order to avoid proliferation of limitation, it appears to be
just and proper to direct that the land-owners, whose land situate in those
eleven villages has also been taken possession of for the proposes of the
construction of the road in question, will also be entitled to the payment of
interim compensation and equitable compensation on the same basis as the
petitioners herein and that in those cases also, the acquisition proceedings
shall be completed on or before January 31, 1986 and June 30, 1986, as the case
may be, depending upon whether or not the acquisition proceedings have been
initiated under Section 4 of the Act." *
5. As the writ petition had been filed in public interest, in the direction No.
4 it was ordered by the Court that all the Land-owners whose land had been
taken possession of in either of the awards would be entitled to the similar
relief.
6. Some other petitioners filed CWP No. 125 of 1986 and CWP No. 147 of 1988
which were also disposed of with the similar directions.
7. As a result of the directions issued by the High Court in its order dated
9.9.1985 the respondents issued the notification under Section 4 of the Act for
Village Bagure vide Notification No. Lok-Nirmn (Kha) - 7(1)/62/88 dated
25.2.1989 published in the H.P. Gazette dated 15.4.1989. The Land Acquisition
Collector completed the formalities of acquiring the land and ultimately by its
award No. 27/1990 dated 31.1.1991 fixed the market value of the land at Rs.
9,727/- per bigha. Apart from the statutory benefits of solatium etc. the
land-owners were also awarded the interest @12% p.a. from the date of taking
over of possession till the date of payment as directed by the Division Bench
in its order dated 9.9.1985 on equitable grounds.
8. Being aggrieved against the market value fixed by the Land Acquisition
Collector the appellants filed an application seeking reference under Section
18 of the Act to the District Judge. The District Judge, Solan vide its award
dated 1.9.1992 enhanced the compensation to Rs. 45,000/- per bigha. It was held
that the land-owners were entitled to compensation at the rate of Rs. 45,000/-
per bigha and that they shall be further entitled to:
"(a) Compulsory acquisition charges at the rate of 30% on the market
value assessed above;
(b) Additional compulsory acquisition charges at the rate of 12% per annum on
the market value assessed above with effect from the date of notification under
Section 4 of the Act of 1894, that is, 7.5.1989, till the date of the award,
that is, 31.1.1991.
(c) Interest at the rate of 12% per annum on the compensation assessed above with
effect from 18.12.1968 till the date of payment of compensation in terms of the
orders of the Hon'ble High Court in CWP No. 147/1988; *
(d) Interest at the rate of 9% per annum on the enhanced compensation from
the date of possession, that is, 18.12.68 till the date of expiry of one year
thereafter, that is, 17.12.1969;
(e) Interest at the rate of 15% per annum of the enhanced amount with effect
from 18.12.1969 till the date of payment of the amount in Court." *
9. The Respondents being aggrieved by and dissatisfied with the said award
preferred a First Appeal under Section 54 of the Act before the High Court
which was marked as Regular First Appeal No. 104 of 1993. By reason of the
impugned judgment, a Division Bench of the High Court while upholding the
amount of compensation payable to the Appellant herein from acquisition of the
land set aside that part of the award, purported to be relying on or on the
basis of the decision of this Court in State of Himachal Pradesh and others vs.
Dharam Das 1 ), complying the payment of
interest only with effect from 7.5.1989 or with effect from the date of
publication of the notification under Section 4(1) of the Act and not form
18.12.1968.
10. In Dharam Das (supra) the State of Himachal Pradesh had filed an appeal
against the judgment rendered in C.W.P. No. 125 of 1986. (State of Himachal
Pradesh and others vs. Dharam Das), in which a direction similar to the one
which had been given by the High Court in C.W.P. No. 510 of 1985, [ Chander
Kant Sharma & others vs. The State of Himachal Pradesh through the
Secretary and another] was given. This Court did not approve of the view taken
by the High Court and a contra view was taken by holding that the amount other
than the one envisaged either under Section 23 (1-A) of the Act or under any of
the provisions of the Act could not be granted on equitable grounds.
SUBMISSIONS:
11. The learned counsel appearing on behalf of the Appellant submitted that
having regard to the fact that the appeal preferred by the Respondents herein
was confined to the quantum of compensation and as they did not question the
order of the High Court dated 9.9.1985 passed in C.W.P. 510 of 1985, the
impugned judgment cannot be sustained.
12. The learned counsel would contend that in any view of the matter of the
decision of this Court in Dharam Das (supra) could not have been relied upon as
the principles of res judicata would be attracted to the fact of the present
case and furthermore in view of the fact that the said order has been acted upon.
13. The learned counsel appearing on behalf of the Respondent, however,
supported the judgment and submitted that no interest can be granted on the
date of possession. Reliance in this behalf has been placed on R.L. Jain (D) by
Lrs. vs. DDA and others 1.
FINDINGS:
14. It is not in dispute that the High Court issued a writ of mandamus. It is
also not in dispute that the direction of the High Court was acted upon. The
principle of res judicata, as is well-known, would apply in different
proceedings arising out of the same course of action but would also apply in
different stages of the same proceedings. # As the judgment and order
passed in C.W.P. No. 510 of 1985 attained finality, we are of the opinion that
the Respondents herein could not have raised any contention contrary thereto or
inconsistent therewith in any subsequent proceedings. In fact the Land
Acquisition Officer while passing the award on 31.1.1991 took into
consideration the said direction and awarded 12% additional compensation at the
market value. The said order of the Land Acquisition Officer never came to be
questioned and, thus, attained finality.
15. Section 18 of the Act provides that any person who has not accepted the
award may file an application for referring the dispute for determination of
the court
16. The State could have filed such an application under Section 18. It did not choose to do so. Only the Appellant herein took recourse to the said provision culminating in passing of the impugned judgment of the High Court.
17. Thus, the award of the Land Acquisition Officer directing payment of
additional interest has also attained finality.
18. In the Reference Court or for that matter the High Court exercising its
appellate jurisdiction under Section 54 of the Act could not have dealt with
the said question. The principle of res judicata is species of the principle
of estoppel. When a proceeding based on a particular cause of action has
attained finality, the principle of res judicata shall fully apply. #
19. Reference in this regard may be made to Wade and Forsyth on Administrative
Law, 9th Ed., pg. 243, wherein it is stated:
"One special variety of estoppel is res judicata. This results from the
rule, which prevents the parties to a judicial determination from litigating
the same question over again even though the determination is demonstrably
wrong. Except in proceedings by way of appeal, the parties bound by the
judgment are estopped from questioning it. As between one another they may
neither pursue the same cause of action again, nor may they again litigate any
issue which was an essential element in the decision. These two aspects are
sometimes distinguished as 'cause of action estoppel' and 'issue estoppel'. #
20. In Hope Plantations Ltd. vs. Taluk Land Board, Peermade and another
), this Court observed:
"Law on res judicata and estoppel is well understood in India and there
are ample authoritative pronouncements by various courts on these subjects. As
noted above, the plea of res judicata, though technical, is based on public
policy in order to put an end to litigation. It is, however, different if an
issue which had been decided in an earlier litigation again arises for
determination between the same parties in a suit based on a fresh cause of
action or where there is continuous cause of action. The parties then may not
be bound by the determination made earlier if in the meanwhile, law has changed
or has been interpreted differently by a higher forum..." *
21. In "The Doctrine of Res Judicata' 2nd Edition by George Spencer Bower
and Turner, it is stated:
"A judicial decision is deemed final, when it leaves nothing to be
judicially determined or ascertained thereafter, in order to render it
effective and capable of execution, and is absolute, complete, and certain, and
when it is not lawfully subject to subsequent rescission, review, or
modification by the tribunal which pronounced it..." *
22. Reference, in this connection, may also be made to Ram Chandra Singh vs.
Savitri Devi and others 2005 (2) JT 439.
23. Yet recently in Swamy Atmananda and others vs. Sri Ramakrishna Tapovanam
and others 2005 (4) JT 472) in which one of us was a party, this Court
observed:
"The object and purport of principle of res judicata as contained in
Section 11 of the Code of Civil Procedure is to uphold the rule of
conclusiveness of judgment, as to the points decided earlier of fact, or of
law, or of fact and law, in every subsequently suit between the same parties.
Once the matter which was the subject-matter of lis stood determined by a
competent court, no party thereafter can be permitted to reopen it in a
subsequent litigation. Such a rule was brought into the statute book with a
view to bring the litigation to an end so that the other side may not be put to
harassment.
The principle of res judicata envisages that a judgment of a court of
concurrent jurisdiction directly upon a point would create a bar as regards a
plea, between the same parties in some other matter in another court, where the
said plea seeks to raise afresh the very point that was determined in the
earlier judgment." *
24. It was further noticed:
"In Ishwardas vs. The State of Madhya Pradesh and others, this Court
held:
".... In order to sustain the plea of res judicata it is not necessary
that all the parties to the two litigations must be common. All that is
necessary is that the issue should be between the same parties or between
parties under whom they or any of them claim." *
25. Yet again in Arnold vs. National Westminster Bank Plc. 1991 Indlaw HL 39 , the House of Lords noticed the distinction
between cause of action estoppel and issue estoppel. Clause of action estoppel
arises where the cause of action in the later proceedings is identical to that
in the earlier proceedings, the latter having been between the same parties or
their privies and having involved the same subject-matter. In such a case, the
bar is absolute in relation to all points decided unless fraud or collusion is
alleged, such as to justify setting aside the earlier judgment. The discovery
of new factual matter which could not have been found out by reasonable
diligence for use in the earlier proceedings does not, according to the law of England,
prevent the latter from being reopened. Issue estoppel may arise where a
particular issue forming a necessary ingredient in a cause of action has been
litigated and decided and in subsequent proceedings between the same parties
involving a different cause of action to which the same issue is relevant, one
of the parties seeks to reopen that issue. Here also bar is complete to
relitigation but its operation can be thwarted under certain circumstances. The
House then finally observed: but there is room for the view that the underlying
principles upon which estoppel is based, public policy and justice have greater
force in cause of action estoppel, the subject-matter of the two proceedings
being identical, than they do in issue estoppel, where the subject-matter is
different. Once it is accepted that different considerations apply to issue estoppel,
it is hard to perceive any logical distinction between a point which was
previously raised and decided and one which might have been but was not. Given
that the further material which would have put an entirely different complexion
on the point was at the earlier stage unknown to the party and could not by
reasonable diligence have been discovered by him, it is hard to see why there
should be a different result according to whether he decided not to take the
point, thinking it hopeless, or argue it faintly without any real hope of
success.
26. In Gulabchand Chhotalal Parikh vs. State of Gujarat ) the
Constitution Bench held that the principle of res judicata is also applicable
to subsequent suits where the same issues between the same parties had been
decided in an earlier proceeding under Article 226 of the Constitution.
27. It is trite that the principle of res judicata is also applicable to the
writ proceedings. # (See Himachal Pradesh Road Transport Corporation vs.
Balwant Singh, ).
28. In Bhanu Kumar Jain vs. Archana Kumar and another 2), it was held:
"It is now well-settled that principles of res judicata applies in
different stages of the same proceedings." * (See Satyadhyan Gosal and
others vs. Smt. Deorajin Debi and another ) and Prahlad Singh vs. Col.
Sukhdev Singh).
29. In Y.B. Patil (supra) it was held:
"4... It is well settled that principles of res judicata can be invoked
not only in separate subsequent proceedings, they also get attracted in
subsequent stage of the same proceedings. Once an order made in the course of a
proceeding becomes final, it would be binding at the subsequent state of that
proceeding..." *
30. It was further observed:
"In a case of this nature, however, the doctrine of 'issue estoppel' as
also 'cause of action estoppel' may arise. In Thoday (supra) Lord Diplock held:
"... Cause of action estoppel" is that which prevents a party on an
action from asserting or denying, as against the other party, the existence of
a particular cause of action, the non-existence or existence or existence of
which has been determined by a court of competent jurisdiction in previous
litigation between the same parties. If the cause of action was determined to
exist, i.e., judgment was given on it, it is said to be merged in the
judgment... If it was determined not to exist, the unsuccessful plaintiff can
no longer assert that it does; he is estopped per rem judicatam." *
The said dicta was followed in Barber vs. Staffordshire Country Council, 1996 Indlaw CA 1 . A cause of action estoppel arises
where in two different proceedings identical issues are raised, in which event;
the latter proceedings between the same parties shall be dealt with similarly
as was done in the previous proceedings. In such an event the bar is absolute
in relation to all points decided save and except allegation of fraud and
collusion. (See C. (a minor) vs. Hackney London Borough Council, 1996 (1) AllER
973.
(See 'The Doctrine of Res Judicata', 2nd Edn. by Spencer Bower and Turner p.
149)
31. In this view of the matter, the High Court, in our opinion, had no
jurisdiction to go into the aforementioned question.
32. Furthermore, a writ of mandamus is required to be obeyed unless a
judgment is overruled or a legislation by way of validating statute is brought
into force. #
33. In Madan Mohan Pathak and another vs. Union of India and others :
), the Constitution Bench observed:
"Here, the judgment given by the Calcutta High Court, which is relied
upon by the petitioners, is not a mere declaratory judgment holding an impost
or tax to be invalid, so that a validation statute can remove the defect
pointed out by the judgment amending the law with retrospective effect and
validate such impost or tax. But it is a judgment giving effect to the right of
the petitioners to annual cash bonus under the Settlement by issuing a writ of
mandamus directing the Life Insurance Corporation to pay the amount of such
bonus. If by reason of retrospective alteration of the factual or legal
situation, the judgment is rendered erroneous, the remedy may be by way of
appeal or review, but so long as the judgment stands, it cannot be disregarded
or ignored and it must be obeyed by the Life Insurance Corporation. We are,
therefore, of the view that, in any event, irrespective of whether the impugned
Act is constitutionally valid or not, the Life Insurance Corporation is bound
to obey the writ of mandamus issued by the Calcutta High Court and to pay
annual cash bonus for the year April 1, 1975 to March 31, 1976 to Class III and
Class IV employees." *
34. In any event, the directions issued by the court stood complied with.
Having regard to Section 18 of the Act or otherwise the wheel cannot be turned
back.
35. We must also note that the question raised by the learned Judges of the
High Court was not raised by the Respondents although having regard to the
decision of this Court in Dharam Das (supra) it was available.
36. The High Court, in our opinion, although has a wide power in terms of
Section 107 of the Code of Civil Procedure but it could not have gone outside
the pleadings and make out a new case.
37. In Siddu Venkappa vs. Smt. Rangu S. Devadiga and others ), it was
held:
"8. As has been stated, the defendant traversed that claim in his
written statement and pleaded that the business always belonged to him as
owner. There was thus no plea that the business was "benami" for
Shivanna. We also find that the parties did not join issue on the question that
the business was "benami". On the other hand, the point at issue was
whether Shivanna was the owner of the business and the tenancy rights of the
premises where it was being carried on. It is well-settled, having been laid
down by this Court in Trojan and Co. Ltd. vs. RM. N.N. Nagappa Chettiar and
Raruha Singh vs. Achal Singh that the decision of a case cannot be based on
grounds outside the plea of the parties, and that it is the case pleaded which
has to be found. The High Court therefore went wrong in ignoring this basic
principle of law, and in making out an entirely new case which was not pleaded
and was not the subject-matter of the trial." *
38. For the reasons stated above, the appeals are accepted, the impugned
judgments under appeals are set aside and that of the Reference Court are
affirmed. No costs.