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CASE NO.:

Appeal (civil) 635 of 2003

PETITIONER:

Dayal Singh & Ors.

RESPONDENT:

Union of India & Ors.

DATE OF JUDGMENT: 29/01/2003

BENCH:

CJI, S.B. Sinha & AR. Lakshmanan

JUDGMENT:

J U D G M E N T

W I T H

CIVIL APPEAL NOS. 636, 637, 638 OF 2003

(Arising out of S.L.P. (Civil) Nos.17079 of 2000,

533 of 2001 & SLP (Civil)CC 4700 of 2001)

S.B. SINHA, J :

Leave granted.

Applicability of Section 28A of the Land Acquisition Act, 1894 in a

proceeding under the Requisitioning and Acquisition of Immovable Property

Act, 1952 (hereinafter referred to as 'the 1952 Act') is in question in these

appeals, which arise out of judgments and orders passed by Punjab &

Haryana High Court in L.P.A. No. 971 of 1999, C.W.P. No. 183 of 1994,

L.P.A. No. 914 of 1999 and L.P.A. No. 42 of 2000.

The factual matrix of the matter may be adverted to from the Civil

Appeal arising out of Special Leave Petition (Civil) No.533 of 2001. The

lands of the appellants were requisitioned under the Defence of India Act,

1971 for establishment of Military cantonment in the year 1972. They were

later on acquired in terms of Section 23(1) of the Defence of India Act. An

award of compensation was pronounced on 6th March, 1975 in the following

terms :-

"1. Area assessed on flat Rs.16,000/- per acre

2. Nahri/Chani Rs.14,000/- "

3. Chali Mustan Rs.10,800/- "

4. Banani Rs.9,000/- "

5. Coir Mumkin/Bajar Rs.4,500/- " "

It is not in dispute that the appellants in relation to the amount of

compensation awarded by the respondents herein for acquiring their

properties entered into agreements in the prescribed form under the

provisions of the 1952 Act, which was made operative for the residual

matters flowing from the proceedings of acquisition of lands upon repeal of

the Defence of India Act, 1971.

Questioning the non-inclusion of interest in the said award they filed a

writ petition before the High Court which was marked as C.W.P. No.4983 of

1976 which were allowed. A special leave petition filed by the respondents

herein before this Court marked as Special Leave Petition (Civil) No.74 of

1998 questioning the said order of the High Court was dismissed on 4th

September, 1984. Another writ petition was filed by the Appellant claiming

solatium before the High Court which was marked as C.W.P. No.1813 of

1978 and the same was also allowed. It is, however, not in dispute that

several other land owners did not accept the said award and made a

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reference which was referred to an arbitration of the Additional District

Judge. By an award dated 20.11.1987 in the case of one Nihal Singh, the

said Arbitrator awarded higher compensation together with solatium and

interest. Compensation awarded to said Nihal Singh by the Arbitrator was at

the following rates :-

"1. Land situated on either side of

National Highway leading from Rs.16.80/sq.yd

Bhatinda to Bana upto depth of

5000 mts.

2. Land upto depth of 500 mts.

The Municipal limits/fencing

of Cantonment from boundry Rs.16/- per sq.yd

3rd phase of Urban Estate of

Bhatinda Town.

3. For the rest of acquired land Rs.8.50 " "

The said Nihal Singh had also been paid solatium @ 30% and interest

@ 9% per annum for one year after acquisition and thereafter @ 15% per

annum till realisation.

The appellants herein having regard to the said award filed application

under Section 28A of the Land Acquisition Act for redetermination of

compensation. It is not in dispute that a Full Bench of the Punjab &

Haryana High Court in Hari Krishan Khosla (decd.) and others vs. Union of

India and Another. [AIR 1975 Punjab & Haryana 74] had held that even

where an acquisition is made under the Defence of India Act, provisions of

Section 28A of Land Acquisition Act would be applicable. Presumably,

relying on or on the basis of the said decision, the Special Land Acquisition

Collector, before whom the said purported application under Section 28A

was filed, enhanced the compensation by an order dated 30th May, 1988.

The said award indisputably was not implemented.

This Court in Union of India vs. Hari Krishan Khosla (Dead) by

L.Rs. [(1993) Supp.2 SCC 149], however, held that the provisions of Land

Acquisition Act are not applicable in respect of an acquisition made under

the 1952 Act.

Thereafter, the respondent herein filed a writ petition questioning the

said award on the ground that as the provisions of Section 28A of the Land

Acquisition Act were not applicable in relation to acquisition under the

Defence of India Act or the 1952 Act, the said award dated 30th May, 1988

was illegal and without jurisdiction. Before the High Court, the appellants

herein, inter alia, raised a question of maintainability of the writ petition on

the ground delay and latches on the part of the respondents, as allegedly the

writ petition had been filed after a period of five years. By reason of a

judgment and order dated 1.4.1999, a learned Single Judge of the High Court

upon setting aside the order of the Special Land Acquisition Collector dated

30.5.1988 allowed the writ petition where-against the appellants preferred an

intra-court appeal which also came to be dismissed by reason of the

impugned judgment dated 27th January, 2000.

Mr. O.P. Sharma, learned Senior Counsel appearing on behalf of the

appellants in the Civil Appeals arising out of Special Leave Petition (Civil)

Nos. 11687 and 17079 of 2000 and SLP (Civil) ..(CC 4700 of 2001)

would contend that no doubt this Court in Union of India vs. Gurbachan

Singh and others [(1995) 1 SCC 292] and Union of India and Another vs.

Babu Singh and others [(1996) 1 SCC 477] following its decision in Hari

Krishan Khosla's case (supra) has held that in relation to an acquisition

under the provisions of the 1952 Act, Section 28A of the Land Acquisition

Act would not be maintainable but therein this Court did not take into

consideration the question that if the provisions for grant of solatium and

interest in terms of Sections 23A(1) and 23(2) of Land Acquisition Act

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would apply in relation to acquisition under the 1952 Act, there is absolutely

no reason as to why a proceeding under Section 28A would not be

maintainable. Learned counsel in support of his argument placed strong

reliance on a Seven-Judge Bench of this Court in Nagpur Improvement Trust

and Another vs. Vithal Rao and Others [(1973) 1 SCC 500], U.P. Avas

Evam Vikas Parishad vs. Jainul Islam and Another [(1998) 2 SCC 467] and

a recent judgment of this Court in Nagpur Improvement Trust etc. vs.

Vasantrao and Others etc. [(2002) 7 SCC 657].

Mr. P.S. Narasimhma, learned counsel appearing on behalf of the

appellants in Civil Appeal arising out of Special Leave Petition (Civil)

No.533 of 2001, would submit that although Section 28A of the Land

Acquisition Act per se is not applicable to a proceeding under the 1952 Act,

the said provisions should be read into therein. The learned counsel drew

our attention to the said provisions of Section 28A of the Act and submitted

that in a case where the parties entered into an agreement in terms of clause

(a) of sub-section (1) of Section (8) of the 1952 Act, there is no reason as to

why the parties cannot enter into another agreement having regard to the fact

that the Arbitrator has awarded enhanced compensation for acquisition of

similarly situated lands. The learned counsel drawing our attention to the

provisions of sub-section (3) of Section 8 of the 1952 Act would submit that

compensation required to be paid even under the 1952 Act being on the

market value of the land, and, thus, the criteria for determination of

compensation being the same, the provisions of the Land Acquisition Act

should be held to be applicable being implicitly embodied therein. In

support of the said contention, strong reliance was placed on Haji

Mohammad Ekramul Haq vs. The State of West Bengal [AIR 1959 SC 488].

The 1952 Act was enacted to provide for the requisitioning and

acquisition of immovable property for the purposes of the Union. The

history of the said legislation and the purport and object thereof need not be

noticed by us in view of the question involved herein. Section 3 of the said

Act provides for power of the Central Government to requisition immovable

property. Section 4 empowers the competent authority to take possession of

the requisitioned property. Section 5 which provides for rights over

requisitioned property reads thus :-

"Rights over requisitioned property.- (1) All

property requisitioned under section 3, shall be

used for such purposes as may be mentioned in the

notice of requisition.

(2) Where any premises are requisitioned

under section 3, the competent authority may order

the landlord to execute such repairs as may be

necessary and are usually made by landlords in

that locality and as may be specified in the notice,

within such reasonable time as may be mentioned

therein, and if the landlord fails to execute any

repairs in pursuance of such order, the competent

authority may cause the repairs specified in the

order to be executed at the expense of the landlord

and the cost thereof may, without prejudice to any

other mode of recovery, be deducted from the

compensation payable to the landlord."

A requisitioned property can be released from requisition in terms of

Section 6. Section 7 confers power upon the Central Government to acquire

the requisitioned property. The principles and method of determining

compensation are laid down in Section 8 of the said Act which reads as

under :-

"8. Principles and method of determining

compensation.- (1) Where any property is

requisitioned or acquired under this Act, there shall

be paid compensation the amount of which shall be

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determined in the manner and in accordance with

the principles hereinafter set out, that is to say, -

(a) where the amount of compensation can be

fixed by agreement, it shall be paid in

accordance with such agreement;

(b) where no such agreement can be reached, the

Central Government shall appoint as arbitrator

a person who is, or has been, or is qualified

for appointment as, a Judge of a High Court;

(c) the Central Government may, in any particular

case, nominate a person having expert

knowledge as to the nature of the property

requisitioned or acquired to assist the

arbitrator and where such nomination is made,

the person to be compensated may also

nominate an assessor for the same purpose;

(d) at the commencement of the proceedings before

the arbitrator, the Central Government and the

person to be compensated shall state what in

their respective opinion is a fair amount of

compensation;

(e) the arbitrator shall, after hearing the dispute,

make an award determining the award of

compensation which appears to him to be just

and specifying the person or persons to whom

such compensation shall be paid; and in making

the award, he shall have regard to the

circumstances of each case and the provisions

of sub-sections (2) and (3), so far as they are

applicable;

(f) where there is any dispute as to the person or

persons who are entitled to the compensation,

the arbitrator shall decide such dispute and if

the arbitrator finds that more persons than one

are entitled to compensation, he shall apportion

the amount thereof amongst such persons;

(g) nothing in the Arbitration Act, 1940 shall apply

to arbitrations under this section.

Sub-sections (2A) and (2B) of Section 8 of the 1952 Act lay down

the mode and manner for determination of compensation on requisitioning

of the property.

Sub-Section (3) of Section 8 thereof reads as under:

(3) The compensation payable for the acquisition

of any property under section 7 shall be the price

which the requisitioned property would have

fetched in the open market. If it had remained in

the same condition as it was at the time of

requisitioning and been sold on the date of

acquisition."

The acquisition of the lands of the appellants as also the award and the

writ petitions, as noticed hereinbefore, have been made and disposed of prior

to coming into force of Section 28A of the Land Acquisition Act.

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The 1952 Act is a self-contained Code. The 1952 Act not only lays

down a criteria for determination of compensation but also provides for the

mode and manner thereof. The procedures for determining the award of

compensation are not the same.

The provisions of the Land Acquisition Act are, ex-facie not

applicable for determination of compensation under the 1952 Act. The

provisions of the Land Acquisition Act and the 1952 Act are, thus, not in

para-materia. Section 23 of the Land Acquisition Act 1894, on the other

hand, lays down the factors which are required to be taken into consideration

in determining the amount of compensation. The mode and manner in

which the compensation payable for acquisition of land under the 1952 Act

and Land Acquisition Act, 1894 are, thus, distinct and different. We fail to

see as to how the provisions of Section 28A of the Land Acquisition Act

can be made applicable in relation to a proceeding under the 1952 Act.

Furthermore, the criteria for determination of compensation in terms

of sub-section (3) of Section 8 must be viewed with the limitations contained

therein. In any event the market value of a property may also be determined

from the stand-point of a willing purchaser of the land ready and willing to

offer the consideration therefor to a buyer. The owner of a land normally

would opt for the best offer. Once he has agreed to a price; so far as he is

concerned the same ordinarily should be presumed to be the best offer which

he could get.

It may be true that in Haji Mohammad Ekrmul Haq's case (supra) this

Court observed that even in the matter of payment of compensation under

the 1952 Act, the criteria laid down under the Land Acquisition Act would

be applicable. However, Section 8 of the 1952 Act underwent amendments

and the provisions of the 1952 Act having not only laid down a complete

machinery but also the mode and manner of determining compensation, the

said decision of this Court cannot be said to have any application in the

instant case.

This Court in Gurbachan Singh's case (supra) and Babu Singh's case

(supra), in view of the aforementioned distinction following the judgment of

this Court in Hari Krishan Khosla's case (supra) clearly laid down the law

that Section 28A of the Land Acquisition Act cannot be applied in relation to

an acquisition proceeding under the 1952 Act.

Reliance placed by the learned Counsel appearing on behalf of the

Petitioner in Hukam Chand and Others v. State of Haryana and others

reported in (1996) 5 SCC 164 is mis-placed. Therein the questions raised

herein did not fall for consideration. In the Land Acquisition Act, 1894, a

provision exists for reference whereas in terms of the provisions of 1952

Act, only in the event the owner of the land does not accept the amount of

compensation offered to him, the dispute in relation thereto may be referred

to an arbitrator. We may note that although in these cases the dispute as

regards amount of compensation was not referred to arbitrator, but the

appellants herein filed writ petitions claiming solatium and interest. They,

thus, did take the matter to a Competent Court of Law and the said

proceeding had a direct bearing on the amount of compensation received by

them. In the event it be held that the provisions of Section 28A of the Land

Acquisition Act is maintainable in a proceeding under the 1952 Act, not only

there would be an enhancement in the quantum of compensation but also

corresponding enhancement in solatium and interest, which, in view of the

orders passed in the writ petitions, would be impermissible.

In Union of India and Others v. Dhanwati Devi and others reported in

(1996) 6 SCC 44 a three judge bench of this Court held:

"14. The question, therefore, emerges whether it is

necessary for the State Legislature to expressly

specify that interest or solatium shall not be

payable for the lands or property acquired under

Section 7(1) of the Act. Sub silentio is eloquent. It

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would further be seen that Section 8 of the Central

Act equally does not provide for payment of

solatium and interest. The Act was passed in the

year 1968 while the Central Act was passed in

1952. It would, therefore, be reasonable to

conclude that the State Legislature was cognizant

of the express provisions for payment of interest

and solatium available in the Acquisition Act. The

Act omitted similar provisions for payment of

interest and solatium as part or component of

compensation, obviously to fall in line with the

Central Act."

The Bench agreed with the reasonings in Hari Krishan Khosla case

(supra).

The ratio of Dhanwanti Devi case applies in the instant case.

The decision of this Court in Nagpur Improvement Trust (supra) may

not be of much assistance in the instant case inasmuch as therein it was

noticed that the U.P. Avas Evam Vikas Parishad Adhiniyam, 1965, Nagpur

Improvement Trust Act, 1936 as also the Punjab Town Improvement Act,

1922 which fell for consideration therein had a common scheme and pattern

as the State legislations relate to Town Planning and Development and in

terms of which, each one of them as regards acquisition of land, the Land

Acquisition Act, 1984 was made applicable with certain modifications as

contained in the Schedules appended thereto. In that view of the matter, the

Bench followed the earlier decision of this Court in U.P. Avas Evam Vikas

Parishad (supra) [wherein one of us (Hon'ble the Chief Justice) was a

member]. Therein Hari Krishan Khosla (supra) was held to be not

applicable as provisions of the Land Acquisition Act, as amended by the

1984 Act relating to determination and payment of compensation, were held

to be applicable to acquisition of land for the purposes of the Adhiniyam.

As at present advised and furthermore in view in the factual matrix

involved in the present appeals, we do not intend to enter into the question as

to whether the said decisions have correctly been rendered or not.

It is the admitted case of the appellants that they entered into with the

respondents agreements as regards the amount of compensation payable for

acquisition of their lands in the prescribed form in terms of clause (a) of sub-

section (1) of Section 8. What was only questioned by them in the writ

proceedings was non-payment of solatium and interest. The High Court in

the said writ proceedings indisputably came to the conclusion that even

solatium and interest was payable. The correctness or otherwise of the said

decisions is not in question.

However, once it is held that Section 28A of the Land Acquisition Act

is not applicable in relation to lands of the appellants the only question

which survives for consideration is as to whether the appellants have any

legal right to force the respondents herein to enter into a fresh agreement

relying on or on the awards passed by the arbitrator in 1987.

The answer to the said question, in our considered opinion, must be

rendered in the negative. It has rightly been accepted at the bar that in the

event a reference is made to an Arbitrator by the owner of the lands, Section

28A of the Land Acquisition Act would not be applicable.

The parties herein entered into agreements in terms of clause (a) of

sub-section (1) of Section 8 and, thus, the same falls within the realm of a

contract, and parties thereto would ordinarily be bound thereby unless the

same is vitiated by fraud, misrepresentation etc.

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Once the matter is concluded by a contract, a novation of contract

would also fall within the realm of contract only. If the contention of Mr.

Narasimha is accepted, a contract can be reopened only with the agreement

of both the parties. The parties must be ad-idem therefor.

The person whose lands were acquired, thus, having entered into an

agreement cannot be said to have any legal right which can be enforced in a

court of law so as to enable him to obtain an order from the Court directing

the Union of India to reopen the agreement; only because by reason of a

subsequent award an enhanced amount of compensation has been paid for

similar class of lands. If a right to get the amount of compensation re-

determined is held to be implicit in the Act, the same for all intent and

purport would amount to invoking the provisions of Section 28A of the Land

Acquisition Act indirectly which cannot be done directly. It is a well-settled

principle of law that what cannot be done directly cannot be done indirectly.

The enforceable right to re-open a proceeding, which has attained

finality, must exist in the Statute itself.

The right to get the amount of compensation re-determined must

expressly be provided by the statute. Such a right being a substantive one

cannot be sought to be found out by implication nor can the same be read

therewith.

The appellants, thus, cannot invoke a right by reading the same into a

statute although admittedly there exists none.

It is a well-settled principle of law that the court cannot read anything

into the statutory provision which is plain and unambiguous. The court has

to find out legislative intent only from the language employed in the statutes.

Surmises and conjectures cannot be restricted to for interpretation of

statutes. [See Union of India and others vs. Filip Tiago De Gama of Vedem

Vasco De Gama, (AIR 1990 SC 981].

This Court in Bhavnagar Unversity v. Palitana Sugar Mill Pvt. Ltd. &

Ors. [2002 (9) SCALE 102], has observed :-

"Scope of the legislation on the intention of the

legislature cannot be enlarged when the language

of the provision is plain and unambiguous. In other

words statutory enactments must ordinarily be

construed according to its plain meaning and no

words shall be added, altered or modified unless it

is plainly necessary to do so to prevent a provision

from being unintelligible, absurd, unreasonable,

unworkable or totally irreconcilable with the rest

of the statute"

[See also M/s Unique Butyle Tube Industries Pvt. Ltd. vs. U.P.

Financial Corporation & Ors. (2002 (9) SCALE 778].

For the views we have taken, we are of the opinion that it is not

necessary to go into the larger question raised by the learned counsel for the

parties in these matters.

Submission of Mr. Narasimha to the effect that the Collector himself

having made an award by order dated 30th May, 1988 the Central

Government could not have filed a writ petition, is stated to be rejected. The

contention of the Central Government, respondent herein, in the writ petition

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was that as the provision of Section 28A of the Land Acquisition Act being

not applicable, the Special Land Acquisition Collector acted illegally and

without jurisdiction in reopening the matter and passing a supplementary

award. Such a contention was raised on the basis of a decision of this Court.

Furthermore, the Special Land Acquisition Collector is a creature of the

statute. He, therefore, was bound to act within the four-corners thereof. If

he has passed an order invoking a provision of law which was not

applicable, he committed jurisdictional error and the order impugned before

the High Court by the respondents was a nullity. We, therefore, cannot

accept the contention of the appellants that the respondent was not a person

aggrieved and thus could not have maintained the writ petition.

It was submitted that the respondents having filed a writ petition after

a period of eight years, the same ought not to have entertained. Primarily a

question of delay and latches is a matter which is required to be considered

by the writ court. Once the writ court has exercised its jurisdiction despite

delay and latches on the part of the respondents, it is not for us at this stage

to set aside the order of the High Court on that ground alone particularly

when we find that the impugned judgment is legally sustainable.

For the foregoing reasons, we do not find any merit in these appeals

which are accordingly dismissed but in the facts and circumstances of the

case, there shall be no order as to costs.