No Acts & Articles mentioned in this case
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No. 9871 OF 2018
(Arising out of S.L.P. [C] NO.23292 OF 2008)
SATLUJ JAL VIDYUT NIGAM LTD. … APPELLANT(S)
VERSUS
RAJ KUMAR RAJINDER SINGH (DEAD)
THROUGH LRS. & ORS. … RESPONDENTS
WITH
C.A. NO.9874 OF 2018 @ SPECIAL LEAVE PETITION [C] NO .9281
OF 2014
C.A. NO. 9875 OF 2018 @ SPECIAL LEAVE PETITION [C] NO .9284
OF 2014
C.A. NO.9876 OF 2018 @ SPECIAL LEAVE PETITION [C] NO .9288
OF 2014
C.A. NO. 9877 OF 2018 @ SPECIAL LEAVE PETITION [C] NO .9289
OF 2014
C.A. NO. 9878 OF 2018 @ SPECIAL LEAVE PETITION [C] NO .9287
OF 2014
C.A. NO. 9879 OF 2018 @ SPECIAL LEAVE PETITION [C] NO .9285
OF 2014
C.A. NO. 9880 OF 2018 @ SPECIAL LEAVE PETITION [C] NO .9283
OF 2014
AND
C.A. NOS. 987273 OF 2018 @ SPECIAL LEAVE PETITION [C] NO S.
2253922540 OF 2008
2
J U D G M E N T
ARUN MISHRA, J.
1.Leave granted.
2.The question involved is whether after the abolition of Jagirs by
virtue of the Himachal Pradesh Abolition of Big Landed Estates and
Land Reforms Act, 1953 (hereinafter referred to as ‘the Abolition Act’),
the late Jagirdar or his legal representatives could have claimed the
compensation on the land acquisition being made particularly when
land has vested in the State of Himachal Pradesh, the land was not
under the personal cultivation, and particularly when they have
received the compensation under the Abolition Act, apart from that
had also received the compensation under the provisions of H.P.
Ceiling on Land Holdings Act, 1972 (hereinafter referred to as “the
Ceiling Act”).
3.The facts project how a litigant has filed a slew of litigations one
after the other and faced with a situation that it was likely to be
dismissed, he would withdraw it; again, file it on new grounds, or
having lost it, would withdraw it again at appellate stage, and in the
meantime, in different proceedings by playing fraud, getting unjust
enrichment by receiving compensation at the expense of public
exchequer.
3
4.The facts in the instant case reveal that Late Rajinder Singh, son
of erstwhile ruler Late Maharaja Padam Singh was Jagirdar of the
land, and thus was recorded as owner of thousands of bighas of land
in Tehsil Rampur, SubTehsil Nankhari and Tehsil Rohru of erstwhile
Mohasu district which is presently a part of Shimla district and Tehsil
Nichhar of district Kinnaur of State of Himachal Pradesh.
5.The land in village ‘Jhakri’ of 393 khasra numbers admeasuring
1011 bighas, 6 Biswas was declared to have vested in the State under
section 27 of the Abolition Act and the intermediary Rajinder Singh as
per order dated 14.11.1962 was permitted to retain only 64.12 bighas
of land which was under his personal cultivation. In Himachal
Pradesh, one acre comprises 5 bighas of land. Vide order dated
19.9.1964 passed by the Assistant Collector, the order of vesting was
modified to the extent that he was given 13 bighas 12 Biswas of land
comprised in Khatauni No.1 out of 14 Khasra numbers, i.e., 14, 122,
125, 142, 143, 165, 212, 238, 241, 288, 423, 494, 511 and 512. Some
of the aforesaid survey numbers were unmeasured. However, the fact
remains that the total area which was found to be under personal
cultivation, was 13 bighas, 12 Biswas.
6.Late Jagirdar Rajinder Singh assailed the order of vesting dated
14.11.1962 by filing W.P. [C] No. 15/1962. Before the Judicial
Commissioner who used to hear writ petitions at the relevant time,
4
held that the land which was not under personal cultivation, would
not vest in the State unless and until compensation was paid.
7.Pursuant to the order of vesting, the competent authority under
the Abolition Act i.e. Compensation Officer, Mahasu, vide order dated
12.4.1966 determined the compensation of Rs.28,019.45. Since the
Zamindar had already received an amount of Rs.1,703.25 in excess
from the tenants who had acquired proprietary rights under section
11 of the Abolition Act, same was deducted from the amount and the
amount payable was found to be Rs.26,316.20 and it was actually
paid on 6.5.1966.
8.As against the order passed by the Compensation Officer dated
12.4.1966, the appeal was preferred before the District Judge,
Mahasu. The appeal was partly allowed and the direction which was
made of deduction of Rs.1703.25 was set aside and the payment of
entire Rs.28,019.45 was ordered without aforesaid deduction.
9.As against the decision of the Judicial Commissioner dated
14.11.1962, the matter travelled to this Court in C.A. Nos.1186
1191/1966. This Court held that vesting under section 27, the right,
title and interest of the owner in landholding in case land revenue of
the holding exceed Rs.125 per year, would vest free from all
encumbrances in the State Government and the vesting is automatic
and without being contingent on the happening of any other event.
5
Compensation and rehabilitation grant can be determined and paid
later. This Court in the order dated 17.9.1969 made the following
observations:
“It is apparent that S.27 deals with lands the
annual land revenue of which exceeds Rs.125 per
year. It says in unequivocal terms that the right. title
and interest of the owner in such lands shall be
deemed to have been transferred land vested in the
State Government free from all encumbrances. This
essentially means that on the enforcement of the Act
the vesting takes place automatically and without
being contingent on the happening of any other
event. The High Court in the full Bench decision
referred to above took the same view and was right in
observing that wherever the legislature intended to
defer the date of vesting such as in S.11 and 15 clear
provisions were made to that effect and the reasons
thereof were obvious. In 8.11 the tenant had to
exercise the option to acquire the right. title and
interest of the landowner. The vesting of such rights
would necessary depends on the time of the exercise
of such option. Similarly in 8.15. a future date had
to be provided in view of its special provisions. We do
not consider that the provisions of sub S.53 (3) and
(4) of S.27 contain any indication that the vesting of
rights of ownership in the Government would be
dependent on the determination of compensation.
The vesting takes place under subS. (1) immediately
on the enforcement of the Act. Thereafter, under
subS. (3) compensation has to be paid to the
landowner in accordance with the provisions
mentioned therein. Under sub 8(4) the State
Government shall transfer the rights of ownership to
a tenant who cultivates the land only on payment of
compensation. That cannot prevent or have any
bearing on the vesting which takes place under sub
S(1). The payment of rehabilitation grant which is
provided by sub 8(5) to a small landowner
strengthens the reasoning in favour of vesting being
automatic and immediate under sub S(1). There can
6
be no manner of doubt that in respect of land which
falls within the ambit of S.27(1) transfer and vesting
of the rights of ownership to and in the Government
takes place immediately on the enforcement of the
Act and thereafter compensation and rehabilitation
grant are payable.
For all these reasons, the appeals are allowed
and the decision of the learned Judicial
Commissioner is set aside. The cases are remanded
to the High Court for disposal of the questions which
were not decided. In view of the entire
circumstances, there will be no order as to costs.”
(emphasis supplied)
This Court remitted the matter to the High Court for disposal of
the questions which were not decided. In particular, the question of
personal cultivation of Jagirdar as that land was only saved from
vesting.
10.Faced with the observation made by this Court that the land
which is not under personal cultivation vested automatically in the
State and as after remand the High Court was required to decide the
matter in view of the said observations of this Court, Rajinder Singh
prayed for withdrawal of W.P. No.15/1962 with permission to file a
civil suit. The High Court vide order dated 9.7.1970 permitted to
withdraw the writ petition with liberty to file a civil suit. Thus, the
mandate of this Court in the order dated 17.9.1969 to decide the
question of personal cultivation was avoided by the withdrawal of writ
petition.
7
11.Late Rajinder Singh then filed Civil Suit No.15/1970 in which he
took a somersault and prayed for a declaration of title and sought a
declaration that the suit property was not the ‘land’ under Section 2(5)
of the Abolition Act and as such it did not vest in the State of
Himachal Pradesh. The case of personal cultivation was abandoned by
him. The trial court framed the issues; whether the plaintiff was in
possession of the land in dispute and whether the disputed land, in
whole or in part, vested in the State Government? The issue was also
framed whether the land in dispute is covered under the definition of
‘land’ in the Abolition Act. What is the effect of the decision dated
12.4.1966? The issue was also framed with respect to the finality of
the decision of the Compensation Officer dated 12.4.1966, and
whether the suit was barred as the order had attained finality. The
trial court also framed the issue with respect to the aspect whether the
plaintiff had received compensation of the part of the area in dispute
and, as such, estopped from filing the suit.
12.The suit 15/1970 filed in the High Court was dismissed on
26.6.1973. The High Court has held that the suit land was within the
purview of the term ‘land' as defined in the Abolition Act and the
plaintiff was not in the personal cultivation of the said land. Hence,
the entire land had vested in the State Government under section 27
of the Act on 26.1.1955, the date on which the Abolition Act came into
8
force. It was held that the plaintiff was not the owner of the said land.
The High Court has recorded the following findings:
"25. In this view of the matter I hold, that the land in
dispute is decidedly land as defined in the Abolition Act
and the plaintiff not being in the personal cultivation of
such land, the entire of it has vested in the State
Government under section 27 of the Act. The two
issues are thus decided against the plaintiff.
41. In view of my decision given above for respective
issues, the relief of declaration cannot be granted. The
disputed land has automatically vested in the State
Government under section 27 on 26
th
January 1955,
when the Abolition Act came into force. As such the
plaintiff is not the owner of such land. Since the
plaintiff has not proved his "personal cultivation" for
such land, the same is not exempt from vestment
under subsection (2) of section 27. The executive
instructions issued by the defendants, for this reason,
cannot be considered to be wrong or illegal. The
plaintiff is not entitled to any relief."
The High Court in C.S. No.15 of 1970 also decided issue Nos.5,
11 and 12 and held that the suit was expressly barred by estoppel and
also by res judicata. The suit being for the mere declaration was not
maintainable and was barred under section 34 of the Specific Relief
Act, 1963.
13.Rajinder Singh filed the appeal before Division Bench of the High
Court as against the judgment and decree dated 26.6.1973 of Single
Judge. The first appeal was ultimately withdrawn by making a
statement by his counsel that the disputed land had been acquired
9
under the provisions of section 8 of the H.P. Ceiling on Land Holdings
Act, and the compensation had been paid to the appellant. In view of
the subsequent event, prayer was made to withdraw the suit and
appeal as it had become infructuous. However, the High Court on
23.6.1986 permitted the appellant to withdraw the suit with
permission to file a fresh suit in respect of the subject matter of the
suit on the same cause of action in case there was any necessity to file
such a subsequent suit, and the appeal was dismissed as infructuous.
It is apparent that the appellant has accepted the factual position that
land was declared surplus and he has received compensation of the
disputed land under the provisions of the Ceiling Act, 1972. From
which actual factual position and admission, he has tried to wriggle
out falsely in the instant matter.
14.The withdrawal of suit C.S. No.15 of 1970 was aimed at
defrauding the court as the trial court has held that the suit land was
not personally cultivated as such, it had vested automatically in the
State Government and it was the ‘land’ as defined in the Abolition Act
and the plaintiff was estopped from filing a suit. During the pendency
of the aforesaid matter in spite of the land having been vested in the
State, under Abolition Act compensation was obtained second time
under the provisions of the Ceiling Act, though the compensation was
10
earlier too paid to him as determined by the Compensation Officer in
1966.
15.The Ceiling Act was enacted in the year 1972 and it provided for
consolidation of holding and amend the laws relating to ceiling on land
holdings. Section 11 of the Act of 1972 provided that the surplus land
would vest in the State, and would be deemed to have been acquired
by the State Government free from all encumbrances for a public
purpose on payment of a certain amount.
16.On 10.6.1980 the Collector (Ceiling) that is the SubDivisional
Officer declared 10,027.5 bighas of land as surplus. It was not
questioned by Rajinder Singh. Compensation was determined and also
paid. The reference was made by the department that the additional
land was required to be declared as surplus. On 5.9.1985, Financial
Commissioner (Appeals) decided references and did not interfere in the
aforesaid declaration of land as surplus, however conclusively held
that additional land was required to be declared surplus. The
declaration of 10,027.5 bighas of land as surplus vide order dated
10.6.1980 was not sufficient. The case was accordingly remanded.
The limited remand order also attained finality. Ultimately order was
passed by the Collector, Rampur Bushahr, Distt. Shimla, on
10.11.1993. It was observed that the compensation of Rs.57,888.80
had been received for the land that had already been declared surplus
11
i.e. 10027.5 bighas. It was also held that in the order dated 10.6.1980,
two units of permissible area to the landowner and his minor son were
erroneously allowed, therefore, the additional area of one unit given to
minor son was declared as surplus. It was held that family of Rajinder
Singh was entitled only for one unit and the final draft statement was
accordingly published.
17.The area in question has also declared a surplus in 1980 and
acquired by State under section 11 of Ceiling Act before the land
acquisition was started in 1987 and the order dated 10.6.1980
declaring 10,027.5 Bighas of land as surplus so far as Rajinder Singh
was concerned attained finality as it was not questioned by him.
18.As against the order dated 10.11.1993 declaring additional
approximately 9000 bighas of land as surplus, the appeal was filed,
the same was dismissed by the Commissioner on 30.8.1996. Against
the said appellate order revision was filed before the Financial
Commissioner and the same was dismissed on 18.1.2002. On
1.8.2013 the Commissioner passed an order upholding the mutation
order against which revision was filed before the Financial
Commissioner. Ultimately the review petition was also dismissed as
not maintainable which the appellant is stated to have questioned.
12
19.With respect to the present acquisition proceedings out of which
appeal arises, notification under section 4 was issued on 9.1.1987 for
the acquisition of land for H.P. State Electricity Board for construction
of an approach road at Jhakri. The Electricity Board was later on
replaced by Nathpa Jhakri Power Corporation (NJPC) and later on by
the appellant Satluj Jal Vidyut Nigam. The Land Acquisition Collector
passed an award on 24.2.1989 determining the rate of compensation
at the rate of Rs.20,000 per bigha. However, it was observed in the
award that there was a dispute about the ownership of Rajinder
Singh. Hence, it was ordered that compensation should not be
disbursed in view of the pendency of ceiling proceedings. It be
deposited in a bank instead of court. A reference was sought under
section 18 of the Land Acquisition Act, 1894 (hereinafter referred to as
‘the LA Act’). The Reference Court vide award dated 23.7.1991
determined the compensation at the rate of Rs.1 lakh per bigha.
20.Another acquisition proceeding was initiated by issuance of
notification under section 4 which was published in the Official
Gazette for the acquisition of land for the purpose of construction of
residential colony for the Jhakri Hydel Power Project. On 11.7.1988
amended notification under section 4 was issued. On 27.2.1991 award
was passed according to the classification of the land. On 4.7.1991, a
supplementary award was passed. The references were made to the
13
Court. The Reference Court awarded Rs.1 lakh per bigha vide award
dated 27.3.1997.
21.As against the award passed by the Reference Court appeals
were preferred before the High Court. It was contended that the land
acquisition proceedings were commenced in collusion with the
Government officials. The land stood vested in the Government under
the Abolition Act. There was no question of acquiring the same. A
prayer was made in the appeals to file additional documents under
Order 41 Rule XXVII and to amend the written statement. The High
Court dismissed the said applications along with appeals.
22.As against the dismissal of the appeals and the applications,
C.A. Nos.374152 and 375357 of 2001 were filed in this Court by the
appellant. They were decided on 3.5.2001. The judgment of the High
Court was set aside. The applications under Order 41 Rule XXVII and
Order 6 Rule XVII were allowed. This Court in the final order dated
3.5.2001 observed:
“In course of hearing of the appeals it was fairly
agreed by learned counsel for the parties that keeping
in view the facts and circumstances of the case and the
contentions raised it will be apt and proper to remand
the matter to the High Court for fresh disposal taking
into consideration the averments in the amendment
petition and the documents filed as additional
evidence. Such an order in the fact situation of the
case will serve the ends of justice.
14
In view of the agreed position fairly stated by
learned counsel for the parties and in our view, rightly,
we allow these appeals, set aside the judgment of the
High court which is under challenge; allow the
petitions filed by the appellants under Order 6 Rule
XVII CPC and under Order 41 Rule XXVII CPC and
remand the matter to the High Court for fresh disposal
in accordance with law after giving opportunity of
hearing to the parties.”
23.After the case was remitted to the High Court, appeals have been
dismissed vide impugned judgment and order dated 25.2.2008.
Aggrieved thereby the appeals have been preferred by Satluj Jal Vidyut
Nigam.
24.The Reference Court decided 72 land reference cases wherein it
was held that the respondents were neither the owner nor in
possession of the land under acquisition, and the land in question
stood vested in the State of Himachal Pradesh. The award was
challenged by way of Regular First Appeal and the same is stated to be
pending in the High Court.
25.Civil Appeals arising out of SLP [C] No.9281/2014 arise out of a
common judgment dated 18.9.2013 passed by the High Court. Writ
petitions were filed before the High Court by one of them by Sita Devi
& Ors. being CWP No.2931/2010 with respect to a redetermination of
compensation. They were decided by a common judgment and order
dated 18.9.2013 and it has been held that notwithstanding the fact
15
that Rajinder Singh may not have a title, the status of the appellants
had been held to be that of bona fide transferees earlier and that order
has attained finality and was not questioned in appropriate
proceedings. Thus, they were entitled to the redetermination of
compensation under section 28A of the LA Act. Satluj Jal Vidyut
Nigam has filed the appeals impugning the judgment in the year 2014.
26.It was urged on behalf of the appellant that the respondent
Rajinder Singh has received compensation 3 times with respect to the
same land. Firstly, in 196667 he had received a sum of Rs.28,019 as
compensation due to the vesting of entire land in the State
Government and the Compensation Officer had determined the same
under the Abolition Act. The land, in any event, had vested in the
State. The second time the compensation of Rs.57,388/ had been
received in the year 198081 under the Ceiling Act, 1972. For the
third time, the respondent has received compensation in a sum of
Rs.60 lakhs. The respondent has committed a serious fraud. It was
also urged that Rajinder Singh has filed W.P. No.256/1979, the High
Court dismissed the writ petition and observed that the respondent
has acted unfairly knowing fully well that the land had already vested
in the State and made other observations regarding successive
litigations preferred by the respondent and the withdrawal of RFA
No.9/1973.
16
27.Learned Additional Solicitor General appearing on behalf of the
appellants further urged that as per the principle, fraud vitiates, the
respondents are not entitled to any compensation. They could not be
permitted to take advantage of the continuance of wrong entry. There
was no title left with Rajinder Singh as the land had vested
automatically in the State under the Abolition Act. The LAO had also
directed not to pay the compensation owing to the ceiling case in
which Late Rajinder Singh has already received the compensation and
land had been declared surplus. The question involved is not of
determination of title under sections 18 and 30 of the LA Act but the
title stood extinguished is apparent from Section 27 and ceiling
proceedings of which evidence has been permitted to be adduced by
this Court. Even the LAO and the Reference Court have ordered that
there was no title with Rajinder Singh, as such, compensation was not
to be paid. The effect of previous proceedings and the overall conduct
of Rajinder Singh ought to have been taken into consideration by the
High Court. The observation made by the High Court that it could not
go into the question of the title of Rajinder Singh in the proceedings is
wholly incorrect as it is the serious case of fraud, the title has already
been adjudicated conclusively and lost in other proceedings. It was not
a case of an adjudication of title in the present proceedings. The effect
of Section 27 proceeding and that of ceiling Act case was required to
17
be considered. The High Court could not have permitted the
perpetuation of fraud while dismissing the first appeal after this Court
has remitted the matter to it.
28.It was further urged that the observation made by the LAC in his
award in 1989 not to make payment of compensation, due to ceiling
case was wholly legal and valid. Even the Reference Court has held in
the cases that there was no title with the respondents and the appeal
against the same R.F.A. is pending in the High Court. The High Court
ought to have exercised the supervisory power as there was an error
apparent on the face of the record and to prevent abuse of process of
law. When the principle of ‘fraud vitiates’ is attracted, the label of
proceedings is not material and the court is bound to look into same
and relegation to a remedy of the civil suit could not be said to be
appropriate in the facts of the instant case.
29.It was contended by learned senior counsel on behalf of LRs. of
Late Rajinder Singh that the question of the preexisting right of the
State cannot be gone into in these proceedings. The land in question
did not vest in the State under the Abolition Act. Even if the
amendment of pleadings and additional evidence had been allowed by
this Court, the preexisting right of the State over the property cannot
be gone into in proceedings under section 18 or 30 of the LA Act. It
was not open to the State Government to question the title of the land
18
owners in reference proceedings. The State had filed an appeal against
the reference order which was dismissed on 3.6.2004 as barred by
limitation. It was also contended that the land did not vest in the State
as it was under personal cultivation. Under the Abolition Act, there
was vesting of land which was under tenancy only. Land in question
was not within the purview of the term ‘land' as defined in section 2(5)
in the Abolition Act, as such, there was no vesting of the same in the
State. Though, 1011 bighas and 6 Biswas of land in village Jhakri
vested in the State and mutationorder was made on 27.2.1962.
However, certain other lands which were under personal cultivation
had been excluded, later on, the Compensation Officer also passed an
order determining compensation on 12.4.1966 which was in respect of
tenancy land and not in respect of land under personal cultivation or
the land not assessed to land revenue. Tenants have been given the
rights over the land mentioned in the order dated 12.4.1966 passed by
the Compensation Officer.
30.It was also contended that the land under personal cultivation
was mentioned in the revenue records as ‘Banjar Kadim’ which could
not be said to be ‘land’ within the meaning of Abolition Act nor it
vested in the State Government. The area of Village Jhakri which was
left with Rajinder Singh was 2119 bighas and 19 Biswas. The said
land did not vest in the State. After remand of the case from this Court
19
under Section 27 of Abolition Act, the writ petition was withdrawn and
civil suit No.15/1970 was filed and the same was dismissed by the
High Court. The suit was also withdrawn in appeal as such there was
no adjudication of the rights in the previous rounds of proceedings.
31.Learned counsel on behalf of the respondents further contended
that at the time of land acquisition neither the land was finally
declared surplus nor possession was taken under the Ceiling Act, as
such it did not vest in the State unless the possession was taken. The
acquisition of land under the LA Act is protected under the Ceiling
Act. The statement made by the counsel on behalf of the Power of
Attorneyholder of Rajinder Singh during the course of the first appeal
withdrawing Suit No.15/1970 was incorrect. As the order passed by
the Collector in ceiling case declaring the land surplus had been set
aside by the Financial Commissioner. As such an incorrect statement
was made before the High Court; maybe it was made in ignorance of
the facts. Earlier vide order dated 10.6.1980, 10027.5 bighas of land
was declared surplus and vide order dated 10.11.1993, additional
9679 bighas total 19706.5 bighas was declared as surplus. Even if
compensation was collected, it would not make any difference as the
land did not vest in the State unless possession was taken.
32.Following questions arise for consideration:
20
(i) whether land has vested in State under the Abolition Act, and effect
of acceptance of compensation under the said Act?
(ii)Effect of the proceedings under the Ceiling Act?
(iii)Effect of withdrawal of Civil Suit No.15/1970 in appeal.
(iv)Whether the question of right, title or interest of Late Rajinder
Singh or his successors to obtain compensation can be considered in
the proceedings under sections 18 and 30 of the LA Act? Particularly,
on the basis of the principle “fraud vitiates”.
(v)Whether the respondents who are claiming on the basis of
patta /transfer made by Rajinder Singh, are bona fide transferees and
entitled to compensation?
Question No.1: In Re. the effect of the H.P. Abolition of Big
Landed Estates, Act, 1953
33.After Independence was achieved, in order to bring the agrarian
reforms, the Abolition Act was enacted in the State of Himachal
Pradesh which came into force on Republic Day w.e.f. 26.1.1955. The
Abolition Act has been enacted to provide for the abolition of the big
landed estates and to reform the law relating to tenancies and to make
provisions for matters connected therewith in Himachal Pradesh.
‘Estate’, ‘landowner’ and ‘holdings’ have been defined in section 2(3)
of the Abolition Act and have the meanings respectively assigned to
these words in the Punjab Land Revenue Act, 1887 as in force in
Himachal Pradesh immediately before 26.1.1950.
21
34.The terms ‘estate', ‘landowner' and ‘holding' have been defined
under sections 3(1), 3(2) and 3(3) of the Punjab Land Revenue Act,
1867are extracted hereunder:
“3. Definition: In this Act, unless there is
something repugnant in the subject or context; (1)
“estate” means any area— (a) for which a
separate recordofrights has been made; or (b) which
has been separately assessed to land revenue, or would
have been so assessed if the landrevenue had not
been released, compounded for or redeemed; or (c)
which the State Government may, by general rule or
special order, declare to be an estate;
(2) “landowner” does not include a tenant or an
assignee of landrevenue, but does not include a
person to whom a holding has been transferred, or an
estate or holding has been let in farm, under this Act
for the recovery of an arrear of landrevenue or of a
sum recoverable as such an arrear and every other
person not hereinbefore in this clause mentioned who
is in possession of an estate or any share or portion
thereof , or in the enjoyment of any part of the profits
of an estate;
(3) “holding” means a share or portion of an
estate held by the landowner or jointly by two or more
landowners.”
35.Estate means any area for which a separate record of rights has
been made; or which has been separately assessed to land revenue or
would have been so assessed if the land revenue had not been
released, compounded for or redeemed. Definition of ‘landowner’ does
not include a tenant or an assignee of land revenue, and holding
22
means a share or portion of an estate held by the landowner or jointly
by two or more persons.
36.The word ‘holding’ as defined in the Punjab Land Revenue Act,
1887 would mean an estate which means any area for which a
separate record of rights has been made or which has been separately
assessed to land revenue, or would have been so assessed to land
revenue in case it had not been released, compounded for or
redeemed, or has been declared to be an estate by the State
Government. Thus, expression ‘holding’ would include the area of an
estate also if it is assessed or would have been assessed but for
release, compounding or redeeming of land revenue. As per the
definition of the estate in section 3(1) of the Punjab Act, estate means
any area for which separate record of rights has been made. The
expression landowner used in Section 27 has to be understood as
defined in section 3(2) of the Punjab Act. Similarly, the definitions of
‘estate’ and ‘holding’ in the Punjab Act assume significance.
37.The ‘land’ has been defined in section 2(5) of the Abolition Act
thus:
“(5) “land” means land which is not
occupied as the site of any building in a
town or village and is occupied or has been
let for agricultural purposes or for purposes
subservient to agriculture, or for pasture,
and includes –
(a) the sites of buildings and other
structures on such land,
23
(b) orchards,
(c) ghasnies;”
38.The ‘landlord’ has been defined in section 2(6) of Abolition Act to
mean a person under whom a tenant holds land, and to whom the
tenant is or but for a contract to the contrary, would be liable to pay
rent for the land. Chapter II of the Abolition Act deals with the rights
of occupancy of a tenant. Acquisition of proprietary rights by tenants
has been dealt with in Chapter III from sections 9 to 27. Section 9
provides for the appointment of Compensation Officer. Section 11
deals with the right of the tenant to acquire the interests of the
landowner. A tenant other than a subtenant can apply under section
11 for the acquisition of right, title, and interest of the landowner in
the land of tenancy held by him under the landowner. Section 12
deals with the determination of the amount of compensation payable
by a tenant for the acquisition of the right, title and interest of the
landowner. Section 15 deals with the acquisition by the State
Government of the rights of the landowner. Same is extracted
hereunder:
“15. (1) Notwithstanding anything
contained in the foregoing provisions of this
Chapter but subject to the provisions of
clause (d) and clause (g) of subsection (1) of
Section 54, the State Government may by
notification in the Gazette declare that as
from such date and in respect of such area
as may be specified in the notification, the
24
right, title and interest of the landowner in
the lands of any tenancy held under him by
a tenant shall stand transferred to and vest
in the State Government free from all
encumbrances created in such lands by the
landowner.
(2) With effect from the aforesaid date –
(a) the landowner shall cease to have any
right to collect or to receive any rent or any
share of the land revenue in respect of such
lands and his liability to pay the land
revenue in respect of the lands shall also
cease;
(b) the tenant shall pay direct to the State
Government the rent he was liable to pay to
the landowners before the date of the
notification; and
(c) the consequences mentioned in clauses
(b) to (f) of section 84 shall mutatis
mutandis ensue.”
39.Section 16 of Abolition Act deals with payment of compensation
to the landowners for the acquisition of their rights. Section 16 is
extracted hereunder:
“16. The landowner whose right, title and
interest in lands have been acquired by the
State Government under Section 15 shall be
entitled to compensation which shall be
calculated as far as practicable according to
the provisions of sections 12 and 13.”
40.Interest on compensation is payable under section 18 of
Abolition Act. Section 19 deals with the claims for compensation and
determination of such claims and in case of a dispute, it has to be
25
referred to civil court under section 20. Where the landowner is minor,
it has to be deposited with the Collector or in any bank selected in this
behalf by the State Government as provided in section 22. The
Compensation Officer shall have the powers of a civil court under the
Code of Civil Procedure for the purposes enumerated therein. Section
26 deals with the power to frame rules to carry out the purposes of the
Chapter.
41.Section 27 of the Abolition Act deals with the vesting of rights of
ownership in the Government. The right of the landowner whose
landholding exceeds the annual land revenue of Rs.125 per year, the
right, title and interest of such owner shall be deemed to be
transferred and vested in the State Government free from all
encumbrances. The vesting of such holding of the landowner is
automatic in case revenue of the landholding is exceeded by Rs.125
per year. However, the only saving grace is provided under section
27(2) to the extent the land is under the personal cultivation of the
landowner. The rights of intermediaries get automatically vested in the
State Government under section 27(1), the landowner is entitled to
receive compensation under section 27(3) to be determined by the
Compensation Officer having regard to the provisions of sections 17
and 18 of the Abolition Act. Section 27 is extracted hereunder:
“27. (1) Notwithstanding anything
contained in the foregoing provisions of this
26
Chapter, a landowner who holds land, the
annual land revenue of which exceeds
Rs.125 per year, the right, title and interest
of such owner in such land shall be deemed
to have been transferred and vested in the
State Government free from all
encumbrances.
(2) Nothing contained in subsection (1)
shall apply in respect of such land which is
under the personal cultivation of the
landowner.
(3) The landowner whose rights are
acquired under subsection (1) by the State
Government, shall be entitled to receive
compensation which shall be determined by
the Compensation Officer having regard to
Sections 17 and 18 of this Act, in
accordance with the provisions of Schedule
II, but in the case of such occupancy tenant
who is liable to pay rent in terms of land
revenue or the multiple of land revenue, the
compensation payable to his landowner
shall be computed in accordance with
Schedule I.
(4) The right, title and interest of the land
owner acquired under subsection (1) or (2)
shall be transferred by the State
Government on the payment of
compensation in accordance with Schedule
I to such tenant who cultivates such land.
(5) The State Government shall give
rehabilitation grant according to the rules
framed under this Act, to such small
landowner whose right, title and interest
have been extinguished and who does not
have any other means of livelihood.”
It is apparent from section 27 that it contains nonobstante
clause and it is applicable to the land as defined in section 2(5) which
27
is not occupied as the site of any building in a town or village and is
occupied or has been let for agricultural purposes or for purposes
subservient to agriculture, or for pasture. The definition is inclusive
and wide and it covers the sites of buildings and other structures on
such land, orchards, and ghasnies too. Thus, the definition of land
being inclusive is very wide and in case the land revenue of the
holding of Zamindar exceeds Rs.125 per year except for the land
under personal cultivation, entire land holding would vest in the State
Government and such vesting is automatic.
42.A reading of section 27 makes it clear that on the abolition of
estates except for the land which is under personal cultivation of the
landowner, vests in the State. Vesting is automatic and would not
depend upon the payment of compensation and this has already been
held by this Court vide order dated 17.9.1969 in the case filed by Late
Rajinder Singh. It is crystal clear that vesting of the land is not
confined to the land held under the tenancy right. The expression
used in section 27 is “landowner” who holds the land. Thus, there is
no scope for the submission that section 27 is applicable only to a
land held by the tenant in tenancy. It is applicable to all kinds of land
as defined in the Abolition Act held by the landowner and the
definition of the land in Abolition Act is inclusive and would include all
kinds of land in a town or village which is not occupied by any site of
28
the building. Thus, all land which is not occupied by any building
situated in a town or building would vest in the State and a land
which has been let for agricultural purpose or for purposes
subservient to agriculture or for pasture including the sites of building
and other structure of the land, orchard, and ghasnies would vest in
the State. Thus, it is apparent that the land which is Banjar, Abadi,
Gharat, Kalhu, and GairMumkin are all covered under the definition
of land.
43.The big estates were sought to be abolished by the H.P. Abolition
Act. When section 27 of the Abolition Act and definition of land is read
with ‘holding’ and ‘estate’ and ‘landowner’ as defined in the Punjab
Land Revenue Act, 1887 it is clear that the land held by late Rajinder
Singh definitely exceeded revenue of Rs.125 per year as is apparent
from documents and various orders passed in the case. The object of
the Abolition Act is to provide for the abolition of big landed estates
and to bring land reform in the law relating to tenancies and to make
provisions for matters connected therewith. The land holding of Late
Rajinder Singh was a big estate and was definitely covered under the
purview of the Act and in particular under section 27 and all the lands
vested in the State except the land under his personal cultivation.
44.Thus, we are of the considered opinion that the area under
personal cultivation which was saved in favour of Rajinder Singh was
29
64 bighas 12 Biswas only as specified. It is apparent from the order
dated 27.2.1962 Khata No.1 Kita measuring 1011 bighas 6 Biswas
vested in the ownership of Government of Himachal Pradesh in village
Jhakri. In the review on 19.9.1964, there was only partial modification
with respect to area 14 bighas 12 Biswas. The land revenue of land at
Jakhri as apparent from Jamabandi of 195556 at the time when the
Abolition Act came into force was Rs.155.58 it was more than Rs.125
as such the land which was Banjar kadim or otherwise not under
personal cultivation had vested in the State.
45.Under the Abolition Act compensation was determined under the
provisions of section 27(1) and was ordered to be paid by the
Compensation Officer, Mahasu District, Kasumpti vide order dated
12.4.1966. Sum of Rs.28,019 had been paid to Rajinder Singh.
Though payment of compensation was not a condition precedent for
vesting of land it was automatic, Rajinder Singh was paid
compensation also for the land mentioned in the order of
Compensation Officer. Even if the compensation was not paid for some
land, as that was not under personal cultivation had also
automatically vested free from all encumbrances in the State.
46.The subsequent attempt made by Rajinder Singh to claim that
the land was not covered under the definition of land, was wholly
frivolous, unacceptable and was rightly rejected in C.S. No.15/1970
30
filed by Rajinder Singh. This Court in proceedings under section 27 of
Abolition Act vide order dated 17.9.1969 ordered that the land only
under personal cultivation was saved and not any other land. The
finding recorded in the remand order on the question of law is binding
otherwise also the position of law is what was held by this Court in the
aforesaid decision. After this Court remitted the matter for
examination of the question which was the land under personal
cultivation that would only be saved from vesting. To avoid rigor of the
order the writ petition was withdrawn by Late Rajinder Singh with
liberty to file a civil suit and Suit No.15/1970 was filed. The stand
taken was that the said land was Banjar, Abadi, Gharat, Kohlu, and
GairMumkin. The stand taken that the land was Ghasni that is
wasteland and Banjar land itself indicated that the land was not
under personal cultivation and thus as per the case set up in Civil
Suit by the plaintiff, Rajinder Singh it was clear that he has
abandoned the stand that the land was under personal cultivation and
took the aforesaid stand. The said stand itself made clear that the land
was not under personal cultivation, at the time of abolition and had
vested in the State and we have no hesitation to arrive at the said
conclusion based on the case set up by the plaintiff in the course of
civil suit No.15/1970.
31
47.The Banjar land or Banjar Kadim is nonetheless the land as
defined in section 2(5) of the Abolition Act. Apart from that, it is clear
that ghasni land is also included in the definition of land, no doubt
about it that growing of grass is for agriculture purpose. However, the
pasture or grassland cannot be said to be under personal cultivation
and such land would also vest in the State. The expression used is
personal cultivation i.e. the cultivation by dint of his own labour. The
agriculture is a wider term than personal cultivation and would
include several aspects such as dairyfarming, the use of land as
grazing, meadow or pasture land or orchard or other land or for
market gardens or nursery grounds. The fructus naturales is the
outcome of nature alone but such land cannot be said to be under
personal cultivation as envisaged in the Abolition Act.
48.In Jadab Singh & Ors. v. The Himachal Pradesh Administration &
Ors. AIR 1960 SC 1008, this Court considered the question of the
abolition of estates which was declared invalid as having been passed
by the State legislature which was not duly constituted. A validating
Act was passed by the Parliament. This Court considered the
legislature competence and constitutional validity of the Abolition Act.
It was held that in view of Article 240 as it stood before its amendment
by the Constitution (Seventh Amendment) Act, 1956, the Parliament
was competent to enact the validating Act. The provisions of the
32
Abolition Act did not infringe Articles 19 and 31 of the Constitution of
India and the Abolition Act fell within the protection of Article 31A of
the Constitution and it was not open to challenge on the ground that
it infringed Articles 19 and 31 of the Constitution. The intent of the
Abolition Act is that the agrarian reforms by Abolition of Big Landed
Estates have to be given the full effect. Once land has vested in the
State, it was not open to Rajinder Singh on the basis of continuation
of wrong entries in revenue records, to claim any right, title or interest
much less compensation under the Ceiling Act as well as under the
provisions of the LA Act. Thus, the entire land on the condition being
satisfied with the landed holdings of a landowner the annual land
revenue of which is Rs.125 or more, land vested in the State and not
excess part over and above the land to which the said land revenue is
ascribed, with the saving of personally cultivated land.
2. In Re effect of proceedings under the Ceiling Act:
49.We advert to the question as it has relevance though it is not
necessary, in view of the findings recorded that land had vested in the
State under the provisions of the Abolition Act.
50.The Ceiling Act came into force in 1972 providing a ceiling on
agricultural holdings. Section 11 of the Ceiling Act is extracted
hereunder:
33
“11. Vesting of surplus area in the State
Government
The surplus area of a person shall, on the date
on which possession thereof is taken by or on
behalf of the State Government, be deemed to
have been acquired by the State Government for
a public purpose on payment of amount
hereafter provided and all rights, title, and
interests (including the contingent interest, if
any), recognised by any law, custom or usage for
the time being in force, of all persons in such
area shall stand extinguished and such rights,
title and interests shall vest in the State
Government free from any encumbrance:
Provided that where any land within the
permissible area of the mortgagor is mortgaged
with possession and falls within the surplus
area of the mortgagee, only the mortgagee rights
shall be deemed to have been acquired by the
State Government and the same shall vest in it.”
51.Section 4 deals with the permissible ceiling area and section 6
defines a ceiling area in excess of the permissible area. The provisions
of sections 4 and 6 are extracted hereunder:
“4. Permissible area
(1) The permissible area of a landowner or a
tenant or a mortgagee with possession or partly
in one capacity or partly in another of person or
a family consisting of husband, wife and up to
three minor children shall be in respect of
(a) land under assured irrigation capable of
growing two crops in a year 10 acres.
(b) land under assured irrigation capable of
growing one crop in a year 15 acres.
(c) land of classes other than described in
clauses (a) and (b) above including land
under orchards30 acres.
34
(2) The permissible area for the purposes of
clause (c) of subsection (1) for the districts of
Kinnaur and Lahaul and Spiti, Tehsil Pangi and
SubTehsil Bharmaur of Chamba district, area
of Chhota Bhangal and Bara Bhangal of
Baijnath Kanungo Circle of Tehsil Palampur of
Kangra district, and area of Dodra Kowar Patwar
Circle of Rohru Tehsil and Pandrabis Pargana of
Rampur Tehsil of Shimla district shall be 70
acres.
(3) The permissible area of a family under sub
section (1) shall be increased by onefifth of the
permissible area under subsections (1) and (2)
for each additional minor member of a family
subject to the condition that the aggregate
permissible area shall not exceed twice the
permissible area of family under subsections (1)
and (2).
(4) Every adult son of a person shall be treated
as a separate unit and he shall be entitled to the
land up to the extent permissible to a family
under subsections (1) and (2) subject to the
condition that the aggregate land of the family
and that of the separate units put together shall
not exceed twice the area permissible under the
said subsections:
Provided that where the separate unit owns any
land, the same shall be taken into account for
calculating the permissible area for that unit.
(5) If a person holds land of two or more
categories described in clauses (a), (b) and (c) of
subsection (1) and subsection (2) of this
section then the permissible area shall be
determined on the following basis:
(i) in the areas mentioned in subsection (2) of
this section, one acre of land mentioned in
clause (a) of subsection (1) shall count as one
and a half acres of land mentioned in clause (b)
of subsection (1) and seven acres of land
mentioned in clause (c) of subsection (1); 1976.
35
(ii) in the areas other than the areas mentioned
in subsection (2) of this section, one acre of
land mentioned in clause (a) of subsection (1)
shall count as one and a half acres of land
mentioned in clause (b) of subsection (1), and
three acres of land mentioned in clause (c) of
subsection (1):
Provided that on the basis of ratio prescribed in
clauses (i) and (ii), the permissible area shall be
converted into the category of land mentioned in
subsection (2) and in clause (c) of subsection
(1) as the case may be, and the total area so
converted shall not exceed 70 acres in case of
clause (i) and 30 acres in case of clause (ii)].
(6) Where a person is a member of the family,
the land held by such person together with the
land held by all the members of the family shall
be taken into account for the purpose of
calculating the permissible area.”
“6. Ceiling on land
Notwithstanding anything to the contrary
contained in any law, custom, usage or
agreement, no person shall be entitled to hold
whether as a landowner or a tenant or a
mortgagee with possession or partly in one
capacity and partly in another, the land within
the State of Himachal Pradesh exceeding the
permissible area on or after the appointed day.”
52.The proceedings were initiated under the Ceiling Act and order
was passed by Collector (Ceiling) on 10.6.1980 declaring 10,027
bighas 5 Biswas of land as surplus. It was mentioned in the order that
the owner had taken compensation of Rs.57,888.80 which was
36
calculated under section 14 of the Act. Voucher details have been
given as follows:
“
V.No. Amount Date of receiving compensation
61 1862060 3.11.80
62 1090000 5.11.80
63 1500000 29.1.81
64 393565 20.3.81
65 960000 31.3.81
53.Now, the factum of withdrawal of the amount of compensation
was disputed before us by contending that the compensation under
the Ceiling Act had not been received. It passes comprehension that
how it lies in the mouth to even contend in view of the clear statement
made in the order passed by the competent authority and voucher
numbers with the date on which payment had been made. Rajinder
Singh did not question order dated 30.6.1980. On the contrary,
reference was made by the Settlement Officer with respect to the order
of the Competent Authority on the ground that his minor son was
illegally allotted one unit. Financial Commissioner has taken the
matter in Revision No.224/1982 against the aforesaid order. It was
pointed out by the Settlement Officer that Rajeshwar Singh son of
Rajinder Singh was minor and was not entitled to any land
independently but was allotted one unit by the Collector (Ceiling). He
was minor on the appointed day i.e. 24.1.1971 and Rajinder Singh
and his family consisting of children including minor Rajeshwar Singh
37
were entitled to only one unit of permissible area. The Financial
Commissioner in the order dated 5.9.1985 has held against Rajinder
Singh that his minor son Rajeshwar Singh could not have been
allotted one unit vide order of competent authority dated 10.6.1980,
as such one unit more land has been allotted to the family than
permissible under the ceiling law. It was also held that without
enquiry transfers were held to be bona fide. Thus, the order passed by
the SDO was set aside and the case was remanded to pass fresh order
to declare the additional land as surplus than the one determined in
the earlier order. The order of Competent Authority dated 10.6.1980
was not questioned by Late Rajinder Singh or his family members nor
the order of Financial Commissioner passed on 5.9.1985 was
questioned. It was not an order in favour of Rajinder Singh as
contended on behalf of the respondents but was against his interest
and remand order of 5.9.1985 directing additional land to be declared
surplus also has attained finality. After remand, Collector (Ceiling) has
declared additional land as surplus and total 19706 bighas 5 Biswas
had been declared as surplus. As against the order passed by
Collector (Ceiling) dated 10.11.1993, the appeal was preferred to the
Commissioner which was dismissed on 30.8.1996. Revision filed
against the said order was also dismissed on 18.1.2002 by the
Financial Commissioner.
38
54.The fact is conclusively established that land in question had
been declared as surplus and compensation under the Ceiling Act had
also been received, even though the land had already vested in the
State under the Abolition Act. Once the disputed land had been
admittedly declared surplus in Ceiling Act vide order dated 30.6.1980,
there was no question of payment of compensation to Rajinder Singh
or to his legal representatives in proceedings initiated later on in the
year 1987 under the L.A. Act. The Land Acquisition Collector in 1989
was justified in directing that the compensation determined should
not be paid due to the effect of the Ceiling Act and that question was
raised in the Reference Court also, it was incumbent upon the
Reference Court to go into the aforesaid aspects. It was not fact
situation that question of the title has been disputed and decided in
reference proceedings but whether Rajinder Singh or his LRs. were
entitled to claim compensation in view of the proceedings and that
orders passed under the Abolition Act and Ceiling Act were definitely
required to be gone into. Thus, we are of the considered opinion that
once land has been declared surplus and compensation has been
received. It was not open to receive it again in the land acquisition
case.
(iii) In Re: Effect of withdrawal of C.S. No.15/1970 in appeal
39
55.Civil Suit No.15/1970 was dismissed on merits. Thereafter in the
first appeal, it was withdrawn by Rajinder Singh before the Division
Bench on 23.6.1986. Order dated 23.6.1986 passed by the High Court
of withdrawal of C.S. No.15 of 1970 in first appeal No.9/1973 is
extracted hereunder:
“In the present appeal, the learned counsel for
the appellant has given the statement that by an
order dated 10.06.1980 passed by the Collector
Rampur Bushahar in case State of Himachal
Pradesh vs. Rajkumar Rajender Singh, under
section 8 of Himachal Pradesh Land Ceiling Act,
the disputed land has been acquired by the
Respondent and the Appellant has been paid
compensation for the same. He has further stated
that in the view of this subsequent event he may
be permitted to withdraw the suit and the appeal
may be dismissed as having become infructuous.
It is not disputed that the land in dispute in this
appeal is also the subject matter of dispute in the
order dated 10.06.1980 passed by the Collector
Rampur Bushahar. As the land in dispute has
been acquired and the appellant has been paid the
compensation for the same, therefore, we are of
the view that due to the subsequent events there
are sufficient grounds for allowing the plaintiff to
institute a fresh suit for the subject matter and on
the same cause of action. As a result, we allow the
Plaintiff to withdraw the suit with permission to
file a fresh suit in respect of the subject matter of
the suit on the same cause of action in case there
is any necessity to file such a subsequent suit. The
suit is dismissed as withdrawn and the present
appeal is dismissed as having become infructuous.
The parties are left to bear their own costs of this
appeal."
40
It was stated by the counsel for Late Rajinder Singh before the
High Court in RFA No.9/1973 that compensation had been received
by Rajinder Singh and order had been passed on 10.6.1980 by the
Collector, Rampur under the Ceiling Act. The disputed land had been
acquired by the State as such, the permission was sought to withdraw
the suit and it was prayed that appeal be dismissed as infructuous. In
our opinion, factually it was not an incorrect statement but it was
correctly made in the High Court that land had been declared surplus
and compensation had been received, the fact was supported by
vouchers mentioned in the order dated 10.6.1980, and it was totally
frivolous contention to the contrary raised by the respondents that
compensation had not been received. It appears that the respondents
have no respect for the truth and have tried to hoodwink the court at
several stages by making false averments and statements to perpetrate
fraud.
56.In essence, after this Court has remitted the matter to the High
Court in the proceedings under the Abolition Act this Court has clearly
held as per order dated 17.9.1969 in the case of Rajinder Singh that
only the land under personal cultivation would be saved. Thereafter he
has withdrawn the writ application of 1962, on the ground that
disputed question of fact was raised in the writ application. It was in
order to avoid adjudication in view observation of this Court made
41
against interest of Rajinder Singh in aforesaid order and the fact that
as the land was not under personal cultivation, the writ petition was
withdrawn and thereafter in C.S. No.15/1970 that was filed in which,
Rajinder Singh had abandoned the case of land being under personal
cultivation. On the contrary, raised the plea that it was not the “land”
at all and as such it was not within the clutches of the Abolition Act.
57.A Single Bench of the High Court dismissed the suit on merits
and has recorded the finding that the land was not under personal
cultivation and it had vested in the State and it was the “land” as
defined in section 2(5) of the Abolition Act. Thereafter Regular First
Appeal which was preferred before the Division Bench was dismissed
as infructuous and suit was withdrawn by aforesaid order dated
23.6.1986 on the ground that compensation had been received under
the Ceiling Act, and land has been declared surplus. It is clear that
once land has been declared surplus and compensation had been paid
under the Ceiling Act. It was not the reason for withdrawal of Civil
Suit No.15/1970 by the plaintiff Rajinder Singh that the land was
personally cultivated by him. It was not at all open to Rajinder Singh
or his LRs. to take inconsistent stands and contend in the present
proceedings that land was under personal cultivation. They are
estopped from doing it not only by conduct but by way of
abandonment of the plea, having not taken it in C.S. No.15/1970. It
42
was not the ground made for withdrawal of suit that land was under
personal cultivation. The effect is that order of vesting has attained
finality even otherwise withdrawal of suit does not check running of
limitation as provided in Order 23 Rule 2 CPC. It is futile and too late
in the day to allow the respondent to lay such a claim.
58.As a matter of fact, the withdrawal of civil suit No.15/1970 was
made on the statement of learned counsel on behalf of plaintiff
Rajinder Singh that disputed land had been declared as surplus in the
ceiling proceedings, compensation had been received and under the
provisions of the Ceiling Act. The suit was permitted to be withdrawn
with liberty to file fresh suit whereas there was no such formal defect.
Be that as it may. Once suit has been withdrawn on the ground that
land had been declared surplus and compensation had been received
it would create estoppel against the plaintiff to contend to contrary
and from claiming compensation under the LA Act notwithstanding
permission to file suit because as a matter of fact also, the disputed
land had been declared surplus on 30.6.1980 and additional land in
1993. The land declared as surplus in 1980 attained finality, as well
as order of the Financial Commissioner on 5.9.1985. Both the orders
also attained finality. Thus, the order of remand dated 5.9.1985
having attained finality, and it would not be possible to reopen it at
any subsequent stage. Thus, the orders dated 30.6.1980 and 5.9.1985
43
having attained finality vis a vis to Rajinder Singh and compensation
having been received, as the land in question was declared surplus
under the Ceiling Act. No right, title or interest survived with Rajinder
Singh or his successors to claim compensation under Land
Acquisition Act.
59.The proceedings were initiated in the year 1987 for the
acquisition of land whereas the order of ceiling was passed earlier in
1980 and 1985 and subsequently the surplus area was increased in
1993. By no stretch of any principle of law, Late Rajinder Singh or his
successors could have claimed compensation in the proceedings in
question initiated under the LA Act in the year 1987. In our
considered opinion the respondents Rajinder Singh and his family
were not entitled to claim any monetary compensation under the LA
Act for the said land. The amount that had been withdrawn under the
LA Act, was wholly impermissible and tantamount to playing fraud
upon the legal system. As a matter of fact, compensation has been
taken for the land in the proceedings under the Abolition Act. Even if
compensation in respect of certain land was not payable or paid,
vesting would not depend upon the same. Land not under personal
cultivation of Jagirdars had vested in the State, as such it was not
open even to obtain compensation for the very same land either under
the provisions of the Ceiling Act which has been received or under the
44
provisions of the LA Act. It was wholly impermissible and illegal and
tantamount to scam committed by fraudsters. The cases were
withdrawn one after the other just to perpetuate the fraud on the legal
system by raising the inconsistent pleas and taking unfair and undue
advantage of the wrong continuation of entries in the revenue papers.
(iv) In Re: Question of title under sections 18 and 30 of LA Act
and effect of fraud :
60.Learned counsel on behalf of the respondents contended that the
existing right of the State cannot be decided in the proceedings under
section 18 or 30 of the LA Act. Even if the amendment has been
allowed, it will not prohibit the respondents to raise untenability of
such an objection. Even if amendment along with additional evidence
had been allowed, it will not prohibit the raising of the plea that State
cannot challenge the title in such proceedings. Reliance has been
placed on the decisions of this Court in Sharda Devi v. State of Bihar,
(2002) 3 SCC 705, Meher Rusi Dalal v. Union of India, (2004) 7 SCC
362, Ahad Brothers v. State of M.P., (2005) 1 SCC 545, and U.P. Awas
Evam Vikas Parishad v. Gyan Devi, (1995) 2 SCC 326, to contend that
only the quantum of compensation can be questioned by local bodies
and not the title of the landowners.
61.In the instant case, as already discussed, the LAO in the award
dated 24.2.1989 has ordered compensation not to be paid as the land
45
has been declared surplus in the ceiling matter and further
proceedings were pending after remand of the case in which additional
land was declared surplus which was allotted illegally to minor son
Rajeshwar Singh. The position further worsened in 1993.
62.In Sharda Devi v. State of Bihar, (2003) 3 SCC 128, the question
arose whether Reference under Section 30 of Land Acquisition Act,
1894 was maintainable at the instance of the State of Bihar as it was
the owner of the land and the land vested in the State. It was held
that the State is not a person interested as defined under Section 3(b)
of the Land Acquisition Act, 1894. This Court observed:
“26. The scheme of the Act reveals that the remedy of reference
under Section 18 is intended to be available only to a 'person
interested'. A person present either personally or through
representative or on whom a notice is served under Section 12(2)
is obliged, subject to his specifying the test as to locus, to apply
to the Collector within the time prescribed under Section 18(2) to
make a reference to the Court. The basis of title on which the
reference would be sought for under Section 18 would obviously
be a preexisting title by reference to the date of the award. So is
Section 29, which speaks of 'person interested'. Finality to the
award spoken of by Section 12(1) of the Act is between the
Collector on one hand and the 'person interested' on the other
hand and attaches to the issues relating to (i) the true area i.e.
measurement of the land, (ii) the value of the land, i.e. the
quantum of compensation, and (iii) apportionment of the
compensation among the 'persons interested'. The 'persons
interested' would be bound by the award without regard to the
fact whether they have respectively appeared before the Collector
or not. The finality to the award spoken of by Section 29 is as
between the 'persons interested' interse and is confined to the
issue as to the correctness of the apportionment. Section 30 is
not confined in its operation only to 'persons interested'. It would,
therefore, be available for being invoked by the 'persons
interested' if they were neither present nor represented in
proceedings before the Collector, nor were served with a notice
under Section 12(2) of the Act or when they claim on the basis of
46
a title coming into existence post award. The definition of 'person
interested' speaks of 'an interest in compensation to be made'. An
interest coming into existence postaward gives rise to a claim in
compensation which has already been determined. Such a person
can also have recourse to Section 30. In any case, the dispute for
which Section 30 can be invoked shall remain confined only (i) as
to the apportionment of the amount of compensation or any part
thereof, or (ii) as to the persons to whom the amount of
compensation (already determined) or any part thereof is payable.
The State claiming on the basis of a preexisting right would
not be a 'person interested', as already pointed out
hereinabove and on account of its right being preexisting,
the State, in such a case, would not be entitled to invoke
either Section 18 or Section 30 seeking determination of its
alleged preexisting right. A right accrued or devolved post
award may be determined in a reference under Section 30
depending on Collector's discretion to show indulgence, without
any bar as to limitation. Alternatively, such a right may be left
open by the Collector to be adjudicated upon in any independent
legal proceedings. This view is just, sound and logical as a title
postaward could not have been canvassed up to the date of the
award and should also not be left without remedy by denying
access to Section 30. Viewed from this angle, Section 18 and 30
would not overlap and would have fields to operate independent
of each other.” (emphasis supplied)
63.The question in the instant case is as to whether an incumbent
can be permitted to play blatant fraud time and again and court has to
be silent spectator under the guise of label of the various legal
proceedings at different stages by taking different untenable stands
whether compensation can be claimed several times as done in the
instant case and its effect. Before the land acquisition had been
commenced in 1987, the land more than 1000 bighas had been
declared a surplus in ceiling case and compensation collected, which
indeed disputed land at Jhakari, it would be a perpetuating fraud in
case such a person is permitted to claim compensation for same very
47
land. Fraud vitiates the solemn proceedings; such plea can be set up
even in collateral proceedings. The label on the petition is not much
material and this Court has already permitted the plea of fraud to be
raised. Moreover, Appeal arising out of 72 awards is still pending in
the High Court in which Reference Court has declined compensation
on the aforesaid ground.
64.Reliance has also been placed on the observations made in
Meher Rusi Dalal v. Union of India, (2004) 7 SCC 362, in which this
Court has dealt with the issue of apportionment of compensation for
which claim was raised by the Union of India, not in the capacity of
the owner but as a protected tenant. The claim of tenancy was not
put forth before the LAO, though represented in the acquisition
proceedings. This Court observed that in such a case it could
reasonably be inferred that no right was being claimed and it ought to
have been made before the LAO if it had any such claim in respect of
preexisting right. The LAO was not under a duty to make an enquiry.
The claim of tenancy at the belated stage was an afterthought to
frustrate the payment. The decision has no application to the instant
case as the LAO in the awards passed, noted the factum of ceiling
proceedings as such the effects of the same can always be considered.
48
65.In Ahad Brothers v. State of M.P., (2005) 1 SCC 545, this Court
observed that question of the title of the State over the acquired land,
cannot be decided under Section 18 of Land Acquisition Act, 1894.
This Court considered that when an award has been passed and the
appellant was recorded as owner in the revenue papers, he was
entitled to receive compensation. There is no dispute in the aforesaid
proposition, however, in the instant case facts are different and a
person cannot be permitted to receive the compensation of vested land
in State under the Abolition Act and when the land had been declared
surplus and compensation paid on wrong entry continued. The same
wrong entry could not have been permitted to be utilised for award of
compensation to a person under the LA Act. In the instant case, there
had been earlier proceedings which makes it clear that Rajinder Singh
was not entitled to claim compensation under the LA Act. It is
apparent that there was no subsisting right, title or interest left with
Rajinder Singh or his LRs., thus, they could not be permitted to obtain
the compensation.
66.Fraud vitiates every solemn proceeding and no right can be
claimed by a fraudster on the ground of technicalities. On behalf of
appellants, reliance has been placed on the definition of fraud as
defined in the Black's Law Dictionary, which is as under:
49
“Fraud means: (1) A knowing misrepresentation of the truth or
concealment of a material fact to induce another to act to his or
her detriment. Fraud is usually a tort, but in some cases (esp.
when the conduct is willful) it may be a crime. (2) A
misrepresentation made recklessly without belief in its truth to
induce another person to act. (3) A tort arising from a knowing
misrepresentation, concealment of material fact, or reckless
misrepresentation made to induce another to act to his or her
detriment. (4) Unconscionable dealing; esp., in contract law, the
unconscientious use of the power arising out of the parties’
relative positions and resulting in an unconscionable bargain.”
Halsbury’s Law of England has defined fraud as follows:
“Whenever a person makes a false statement which he does not
actually and honestly believe to be true, for purpose of civil
liability, the statement is as fraudulent as if he had stated that
which he did know to be true, or know or believed to be false.
Proof of absence of actual and honest belief is all that is
necessary to satisfy the requirement of the law, whether the
representation has been made recklessly or deliberately,
indifference or reckless on the part of the representor as the
truth or falsity of the representation affords merely an instance of
absence of such a belief.”
In KERR on the Law of Fraud and Mistake, fraud has been defined
thus:
"It is not easy to give a definition of what constitutes fraud in the
extensive significance in which that term is understood by Civil
Courts of Justice. The Courts have always avoided hampering
themselves by defining or laying down as a general proposition
what shall be held to constitute fraud. Fraud is infinite in
variety… Courts have always declined to define it, … reserving to
themselves the liberty to deal with it under whatever form it may
present itself. Fraud … may be said to include property all acts,
omissions, and concealments which involve a breach of legal or
equitable duty, trust or confidence, justly reposed, and are
injurious to another, or by which an undue or unconscientious
advantage is taken of another. Al surprise, trick, cunning,
dissembling and other unfair way that is used to cheat anyone is
considered as fraud. Fraud in all cases implies a willful act on
the part of anyone, whereby another is sought to be deprived, by
illegal or inequitable means, of what he is entitled too."
67.In Ram Chandra Singh v. Savitri Devi, (2003) 8 SCC 319, wherein
it was observed that fraud vitiates every solemn act. Fraud and
50
justice never dwell together and it cannot be perpetuated or saved by
the application of any equitable doctrine including resjudicata. This
Court observed as under:
“15. Commission of fraud on court and suppression of material
facts are the core issues involved in these matters. Fraud, as is
wellknown, vitiates every solemn act. Fraud and justice never
dwell together.
16. Fraud is a conduct either by letter or words, which induces
the other person, or authority to take a definite determinative
stand as a response to the conduct of former either by word or
letter.
17. It is also well settled that misrepresentation itself amounts to
fraud. Indeed, innocent misrepresentation may also give reason
to claim relief against fraud.
18. A fraudulent misrepresentation is called deceit and consists
in leading a man into damage by willfully or recklessly causing
him to believe and act on falsehood. It is a fraud in law if a party
makes representations which he knows to be false, and injury
ensues therefrom although the motive from which the
representations proceeded may not have been bad.
*** *** ***
23. An act of fraud on court is always viewed seriously. A
collusion or conspiracy with a view to deprive the rights of the
others in relation to a property would render the transaction void
ab initio. Fraud and deception are synonymous.
*** *** ***
25. Although in a given case a deception may not amount to
fraud, fraud is anathema to all equitable principles and any affair
tainted with fraud cannot be perpetuated or saved by the
application of any equitable doctrine including resjudicata.”
(emphasis supplied)
68.In Madhukar Sadbha Shivarkar v. State of Maharashtra, (2015) 6
SCC 557, this Court observed that fraud had been played by showing
the records and the orders obtained unlawfully by the declarant,
51
would be a nullity in the eye of law though such orders have attained
finality. Following observations were made:
“27. The said order is passed by the State Government only to
enquire into the landholding records with a view to find out as to
whether original land revenue records have been destroyed and
fabricated to substantiate their unjustifiable claim by playing
fraud upon the Tehsildar and appellate authorities to obtain the
orders unlawfully in their favour by showing that there is no
surplus land with the Company and its shareholders as the valid
subleases are made and they are accepted by them in the
proceedings Under Section 21 of the Act, on the basis of the
alleged false declarations filed by the shareholders and sub
lessees Under Section 6 of the Act. The plea urged on behalf of
the State Government and the defacto complainantsowners, at
whose instance the orders are passed by the State Government
on the alleged ground of fraud played by the declarants upon the
Tehsildar and appellate authorities to get the illegal orders
obtained by them to come out from the clutches of the land
ceiling provisions of the Act by creating the revenue records,
which is the fraudulent act on their part which unravels
everything and therefore, the question of limitation under the
provisions to exercise power by the State Government does not
arise at all. For this purpose, the Deputy Commissioner of Pune
Division was appointed as the Enquiry Officer to hold such an
enquiry to enquire into the matter and submit his report for
consideration of the Government to take further action in the
matter. The legal contentions urged by Mr. Naphade, in
justification of the impugned judgment and order prima facie at
this stage, we are satisfied that the allegation of fraud in relation
to getting the land holdings of the villages referred to supra by
the declarants on the alleged ground of destroying original
revenue records and fabricating revenue records to show that
there are 384 subleases of the land involved in the proceedings
to retain the surplus land illegally as alleged, to the extent of
more than 3000 acres of land and the orders are obtained
unlawfully by the declarants in the land ceiling limits will be
nullity in the eye of law though such orders have attained
finality, if it is found in the enquiry by the Enquiry Officer that
they are tainted with fraud, the same can be interfered with by
the State Government and its officers to pass appropriate orders.
The landowners are also aggrieved parties to agitate their rights
to get the orders which are obtained by the declarants as they are
vitiated in law on account of nullity is the tenable submission
and the same is well founded and therefore, we accept the
submission to justify the impugned judgment and order of the
Division Bench of the High Court.”
(emphasis supplied)
52
69.In Jai Narain Parasrampuria v. Pushpa Devi Saraf, (2006) 7 SCC
756, this Court observed that fraud vitiates every solemn act. Any
order or decree obtained by practicing fraud is a nullity. This Court
held as under:
“55. It is now well settled that fraud vitiated all solemn act. Any
order or decree obtained by practicing fraud is a nullity. [See (1)
Ram Chandra Singh v. Savitri Devi and Ors., (2003) 8 SCC 319
followed in (2) Vice Chairman, Kendriya Vidyalaya Sangathan,
and Anr. v. Girdhari Lal Yadav, (2004) 6 SCC 325; (3) State of
A.P. and Anr. v. T. Suryachandra Rao, (2005) 6 SCC 149; (4)
Ishwar Dutt v. Land Acquisition Collector and Anr., (2005) 7 SCC
190; (5) Lillykutty v. Scrutiny Committee, SC & ST Ors., (2005) 8
SCC 283; (6) Chief Engineer, M.S.E.B. and Anr. v. Suresh
Raghunath Bhokare, (2005) 10 SCC 465; (7) Smt. Satya v. Shri
Teja Singh, (1975) 1 SCC 120; (8) Mahboob Sahab v. Sayed
Ismail, (1995) 3 SCC 693; and (9) Asharfi Lal v. Koili, (1995) 4
SCC 163.]”
(emphasis supplied)
70.In State of A.P. v. T. Suryachandra Rao, (2005) 6 SCC 149, it was
observed that where land which was offered for surrender had already
been acquired by the State and the same had vested in it. It was held
that merely because an enquiry was made, the Tribunal was not
divested of the power to correct the error when the respondent had
clearly committed a fraud. Following observations were made:
“7. The order of the High Court is clearly erroneous. There is no
dispute that the land which was offered for surrender by the
respondent had already been acquired by the State and the same
had vested in it. This was clearly a case of fraud. Merely because
an enquiry was made, Tribunal was not divested of the power to
correct the error when the respondent had clearly committed a
fraud.
8. By "fraud" is meant an intention to deceive; whether it is from
any expectation of advantage to the party himself or from the ill
will towards the other is immaterial. The expression "fraud"
involves two elements, deceit, and injury to the person deceived.
53
The injury is something other than economic loss, that is,
deprivation of property, whether movable or immovable or of
money and it will include and any harm whatever caused to any
person in body, mind, reputation or such others. In short, it is a
noneconomic or nonpecuniary loss. A benefit or advantage to
the deceiver, will almost always call loss or detriment to the
deceived. Even in those rare cases where there is a benefit or
advantage to the deceiver, but no corresponding loss to the
deceived, the second condition is satisfied. [See Dr. Vimla v. Delhi
Administration, 1963 Supp (2) SCR 585 and Indian Bank v.
Satyam Febres (India) Pvt. Ltd., (1996) 5 SCC 550]
9. A "fraud" is an act of deliberate deception with the design of
securing something by taking unfair advantage of another. It is a
deception in order to gain by another's loss. It is a cheating
intended to get an advantage. (See S.P. Changalvaraya Naidu v.
Jagannath, (1994) 1 SCC 1.)
10. "Fraud" as is well known vitiates every solemn act. Fraud and
justice never dwell together. Fraud is a conduct either by letter or
words, which includes the other person or authority to take a
definite determinative stand as a response to the conduct of the
former either by words or letter. It is also well settled that
misrepresentation itself amounts to fraud. Indeed, innocent
misrepresentation may also give reason to claim relief against
fraud. A fraudulent misrepresentation is called deceit and
consists in leading a man into damage by willfully or recklessly
causing him to believe and act on falsehood. It is a fraud in law if
a party makes representations, which he knows to be false, and
injury enures therefrom although the motive from which the
representations proceeded may not have been bad. An act of
fraud on court is always viewed seriously. A collusion or
conspiracy with a view to deprive the rights of the others in
relation to a property would render the transaction void ab initio.
Fraud and deception are synonymous. Although in a given case a
deception may not amount to fraud, fraud is anathema to all
equitable principles and any affair tainted with fraud cannot be
perpetuated or saved by the application of any equitable doctrine
including res judicata. (See Ram Chandra Singh v. Savitri Devi
and Ors., (2003) 8 SCC 319.)
*** *** ***
13. This aspect of the matter has been considered recently by
this Court in Roshan Deen v. Preeti Lal, (2002) 1 SCC 100, Ram
Preeti Yadav v. U.P. Board of High School and Intermediate
Education, (2003) 8 SCC 311, Ram Chandra Singh v. Savitri
Devi, (2003) 8 SCC 319 and Ashok Leyland Ltd. v. State of T.N.
and Anr., (2004) 3 SCC 1.
14. Suppression of a material document would also amount to a
fraud on the court, (see Gowrishankar v. Joshi Amba Shankar
54
Family Trust, (1996) 3 SCC 310 and S.P. Chengalvaraya Naidu v.
Jagannath, (1994) 1 SCC 1).
15. "Fraud" is a conduct either by letter or words, which induces
the other person or authority to take a definite determinative
stand as a response to the conduct of the former either by words
or letter. Although negligence is not fraud it can be evidence of
fraud; as observed in Ram Preeti Yadav, (2003) 8 SCC 311.
16. In Lazarus Estate Ltd. v. Beasley (1956) 1 QB 702, Lord
Denning observed at pages 712 & 713: (All ER p. 345C)
"No judgment of a Court, no order of a Minister
can be allowed to stand if it has been obtained by fraud.
Fraud unravels everything."
In the same judgment, Lord Parker LJ observed that fraud
“vitiates all transactions known to the law of however high a
degree of solemnity”.
(emphasis supplied)
71.In A.V. Papayya Sastry v. Govt. of A.P., (2007) 4 SCC 221, this
Court as to the effect of fraud on the judgment or order observed thus:
19. Now, it is wellsettled principle of law that if any judgment or
order is obtained by fraud, it cannot be said to be a judgment or
order in law. Before three centuries, Chief Justice Edward Coke
proclaimed;
Fraud avoids all judicial acts, ecclesiastical or temporal.
*** *** ***
22. It is thus settled proposition of law that a judgment, decree
or order obtained by playing fraud on the Court, Tribunal or
Authority is a nullity and nonest in the eye of law. Such a
judgment, decree or order by the first Court or by the final
Court has to be treated as nullity by every Court, superior or
inferior. It can be challenged in any Court, at any time, in appeal,
revision, writ or even in collateral proceedings.
*** *** ***
38. The matter can be looked at from a different angle as well.
Suppose, a case is decided by a competent Court of Law after
hearing the parties and an order is passed in favour of the
applicant/plaintiff which is upheld by all the courts including the
final Court. Let us also think of a case where this Court does not
dismiss Special Leave Petition but after granting leave decides the
55
appeal finally by recording reasons. Such order can truly be said
to be a judgment to which Article 141 of the Constitution applies.
Likewise, the doctrine of merger also gets attracted. All orders
passed by the courts/authorities below, therefore, merge in the
judgment of this Court and after such judgment, it is not open to
any party to the judgment to approach any court or authority to
review, recall or reconsider the order.
39. The above principle, however, is subject to exception of
fraud. Once it is established that the order was obtained by a
successful party by practising or playing fraud, it is vitiated.
Such order cannot be held legal, valid or in consonance with law.
It is nonexistent and nonest and cannot be allowed to stand.
This is the fundamental principle of law and needs no further
elaboration. Therefore, it has been said that a judgment, decree
or order obtained by fraud has to be treated as nullity, whether
by the court of first instance or by the final court. And it has to
be treated as nonest by every Court, superior or inferior.
Supervisory jurisdiction of the court can be exercised in case of
error apparent on the face of the record, abuse of process and if the
issue goes to the root of the matter.
72.In S.P. Chengalvaraya Naidu v. Jagannath, (1994) 1 SCC 1, this
Court noted that the issue of fraud goes to the root of the matter and
it exercised powers under Article 136 to cure the defect. The Court
observed:
“5. The High Court, in our view, fell into patent error. The short
question before the High Court was whether, in the facts and
circumstances of this case, Jagannath obtained the preliminary
decree by playing fraud on the court. The High Court, however,
went haywire and made observations which are wholly perverse.
We do not agree with the High Court that "there is no legal duty
cast upon the plaintiff to come to court with a true case and
prove it by true evidence". The principle of "finality of litigation"
cannot be pressed to the extent of such an absurdity that it
becomes an engine of fraud in the hands of dishonest litigants.
The courts of law are meant for imparting justice between the
parties. One who comes to the court must come with clean
hands. We are constrained to say that more often than not, the
process of the court is being abused. Propertygrabbers, tax
evaders, bankloandodgers and other unscrupulous persons
from all walks of life find the court process a convenient lever to
retain the illegalgains indefinitely. We have no hesitation to say
56
that a person, who's case is based on falsehood, has no right to
approach the court. He can be summarily thrown out at any
stage of the litigation.
6. The facts of the present case leave no manner of doubt that
Jagannath obtained the preliminary decree by playing fraud on
the court. A fraud is an act of deliberate deception with the
design of securing something by taking unfair advantage of
another. It is a deception in order to gain by another's loss. It is a
cheating intended to get an advantage. Jagannath was working
as a clerk with Chunilal Sowcar. He purchased the property in
the court auction on behalf of Chunilal Sowcar. He had, on his
own volition, executed the registered release deed (Exhibit B1S)
in favour of Chunilal Sowcar regarding the property in dispute.
He knew that the appellants had paid the total decretal amount
to his master Chunilal Sowcar. Without disclosing all these facts,
he filed the suit for the partition of the property on the ground
that he had purchased the property on his own behalf and not on
behalf of Chunilal Sowcar. Nonproduction and even non
mentioning of the release deed at the trial tantamounts to playing
fraud on the court. We do not agree with the observations of the
High Court that the appellantsdefendants could have easily
produced the certified registered copy of Exhibit B15 and non
suited the plaintiff. A litigant, who approaches the court, is
bound to produce all the documents executed by him which are
relevant to the litigation. If he withholds a vital document in
order to gain advantage on the other side then he would be guilty
of playing fraud on the court as well as on the opposite party.”
73.In K.K. Modi v. K.N. Modi, (1998) 3 SCC 573, it was observed that
one of the examples cited as an abuse of the process of the court is re
litigation. It is an abuse of the process of the court and contrary to
justice and public policy for a party to relitigate the same issue which
has already been tried and decided earlier against him.
74.Learned counsel for the respondent has placed reliance on the
decision rendered in Ujjagar Singh v. Collector, Bhatinda, (1996) 5 SCC
14, wherein this Court examined the effect of coming into force of
Punjab Land Reforms Act, 1972 and vesting of the surplus area in the
State. In this case, the area in possession of landlord was declared
57
surplus under the Pepsu Act, but possession had not been taken by
the State. It was held that area did not vest finally as the surplus area
under the Pepsu Act, owing to coming into force of the new Act, the
ceiling area must be determined afresh under the new Punjab Act. In
the instant case, the order was passed in ceiling matter in the year
1980 and the adjudication order of Collector (Ceiling) was not
questioned nor the order of remand to declare land as surplus and
then the additional land was declared surplus in 1993. It was not the
case of reopening of the case. In fact, the land has vested in the State
under the Abolition Act. Thereafter, compensation has been obtained,
obviously once land has vested in the State, the possession of such
land/open land is deemed to be that of the owner. In any view of the
matter, in the facts and circumstances of the instant case,
compensation could not have been claimed.
75.In State of H.P. v. Harnama, (2004) 13 SCC 534, this Court
observed that possession of land was not taken and the tenant was in
occupation of the land and had acquired ownership rights before the
land was declared surplus as against the landlord. It was further
observed that the land in question had been notified as surplus and
the fact that the original owner of the land had been paid
compensation, would be of no avail to the State if before the date of
58
actual vesting nonoccupant tenant in possession of the land had
acquired ownership rights. It is totally distinguishable and cannot be
applied to the instant case.
76.Learned counsel on behalf of the respondent has referred to the
decision rendered in Madan Kishore v. Major Sudhir Sewal, (2008) 8
SCC 744, wherein question arose with respect to entitlement of sub
tenant to apply under Section 27(4). It was held that the expression in
Section 27(4), such tenant who cultivates such land, does not entitle a
subtenant either to claim proprietary rights or apply for the same
under Section 27(4). It was held that he was not a subtenant. The
decision is of no help to the cause espoused on behalf of LRs. of
Rajinder Singh.
In the peculiar facts projected in the case the principle fraud
vitiates is clearly applicable it cannot be ignored and overlooked under
the guise of the scope of proceedings under Section 18/30 of the LA
Act.
In Re Q. No.5 Bona fide Transferees :
77.With respect to the appeals filed by SJVN Ltd. arising out of
judgment and order of 2013 in the matter of bona fide transferees,
filed in the year 2014, the High Court has held that the respondents
are bona fide transferees from Rajinder Singh. However, it was pointed
59
out on behalf of the appellants that in 72 reference cases, the regular
first appeal is still pending in the High Court. It has been held by the
Reference Court that the claimants are not entitled to any
compensation. In case regular first appeal is pending in the High
Court as against the order of reference court against the respondents
who claim to be bona fide transferees, obviously, the question of bona
fide transferee has to be decided finally in the pending regular first
appeal before the High Court. In case appeal has not been filed or has
been decided, the compensation to follow the decision. We do not
propose to give final verdict on issue at this stage. We leave the
question open to the High Court to adjudicate. However, in case
compensation has been paid to transferees, the compensation paid
shall not be recovered till such time pending appeal is decided. In
case no matter against transferees is pending and appeal has been
decided in favour of land owners, obviously they have to be paid and
this Order will not come in the way.
78.Resultantly, we allow the appeals and direct that the
compensation that has been withdrawn by Late Rajinder Singh or his
LRs. in the case of land acquisition, in original proceedings or under
section 28A shall be refunded along with interest at the rate of 12
percent per annum within 3 months from today to the
60
appellants/State, as the case may be, and compliance be reported to
this Court. The appeals are accordingly allowed. We leave the parties
to bear their own costs.
…………………………. J.
(Arun Mishra)
New Delhi; …………………………. J.
September 24, 2018. (S. Abdul Nazeer)
Legal Notes
Add a Note....