Union Of India (Uoi) And Ors. vs Rajiv Gupta And Ors. [Along With Cm No. … on 28 August 2006

Delhi High Court
Union Of India (Uoi) And Ors. vs Rajiv Gupta And Ors. [Along With Cm No. … on 28 August, 2006
Author: S. Muralidhar
Bench: Mukul Mudgal, S. Muralidhar
JUDGMENT

S. Muralidhar, J.

1. By this common order, we propose to dispose of the four applications:

(i) CM 8866/06 in RFA 83/1987
(ii) CM 8863/06 in RFA 84/1987
(iii) CM 8864/06 in RFA 85/1987
(iv) CM 8862/06 in RFA 86/1987
2. The prayers in these four applications are identical and read as under:

In view of the aforesaid facts and in the interest of justice, it is most respectfully prayed that the respondents be allowed to file the enclosed amended reference petition and the amended cross objections before this Hon’ble Court and any delay which has been occurred in filing the same be condoned in view of the facts and circumstances, explained above.
In the alternative, it is prayed that the respondents be allowed to amend the reference petitions and the cross-objections in terms of and to include the amendments already sought in the applications for amendment of reference petitions and cross-objections which had been allowed by this Hon’ble Court earlier vide orders dated 25th August, 1999, as referred to above, and also to include and incorporate the facts and grounds, stated in paragraphs 13 to 16 above in the reference petition and the cross objections. The amended reference petition and amended cross-objections are annexed herewith.
Background facts:
3. Notifications dated October 24, 1961 and January 23, 1965 were issued under Section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as the `Act’) for the acquisition of lands admeasuring 721 bighas and 3224 bighas respectively situated in Village Masoodpur for the public purpose of land development of Delhi, i.e., for the construction of Jawahar Lal Nehru University. This was followed by declarations under Section 6 of the Act and two awards. Award No. 2040 was made on December 2, 1967 and Award No. 2225 on April 8, 1969. As per these awards, the lands were divided into three Blocks `A’, `B’ and `C, and compensation was awarded at the rate of Rs. 1,000/- per bigha for the Block `A’; Rs. 800/- per bigha for Block `B’ and Rs. 600/- per bigha for block `C’ in respect of the lands under the notification dated October 24, 1961. As regards lands under the notification dated January 23, 1965, the compensation awarded was Rs. 1580/- per bigha for Block `A’; Rs. 1,175/- per bigha for Block `B’ and Rs. 600/- per bigha for Block `C’. The claimants/respondents herein sought reference in terms of Section 18 of the Act and by a common judgment dated July 28, 1986 the reference court awarded compensation at the rate of Rs. 18,000/- per bigha (Rs. 18 per sq. yd.) for the lands covered by the Award dated April 8, 1969 besides compensation at the rate of Rs. 10,000/- per bigha(Rs. 10 per sq. yd.) for the mineral (china clay) in their land. For the lands covered by the Award dated December 2, 1967, the reference court granted Rs. 12,000/- per bigha (Rs. 12 per sq. yd.) besides compensation at the rate of Rs. 10,000/- per bigha (Rs. 10 per sq. yd.) for the mineral (china clay).

4. Thereafter the above four appeals being, RFA Nos. 83, 84, 85 and 86 of 1987 were filed by the Union of India in this Court under Section 54 of the Act. The said appeals and cross-objections filed by the respondents claimants in the said appeals were disposed of by a Division Bench of this Court by a common judgment dated October 5, 2001 which was later modified by a further order dated May 3, 2002.

5. By its aforementioned judgment and order this Court determined the compensation payable in respect of lands in relation to the notification dated October 24, 1961 as follows:

(a) lands with china clay @ Rs. 56 per sq. yd. and
(b) lands without china clay @ Rs. 30 per sq. yd.
As regards the lands covered by notification dated January 23, 1965, this Court determined the compensation payable at the rate of Rs. 98 per sq. yd., for lands with china clay and Rs. 72 per sq. yd. for lands without china clay.

6. The matters were then carried further in appeal to the Hon’ble Supreme Court by the Union of India. The said appeals of the Union of India were disposed of by the Hon’ble Supreme Court on September 7, 2005 by the judgment reported as Union of India v. Pramod Gupta (deceased) by LRs. and Ors. . The Hon’ble Supreme Court set aside the judgment dated October 5, 2001 of this Court and remitted the matter to this Court for fresh consideration in the light of the observations made in the judgment.

Contentions before the Hon’ble Supreme Court:

7. For the purpose of the present applications some of the contentions raised before the Hon’ble Supreme Court and the findings thereon require to be noticed.

8. It was contended on behalf of the Union of India before the Hon’ble Supreme Court that the High Court “misdirected itself in passing the impugned judgment insofar as it failed to take into consideration that the respondents having made a claim of Rs. 25 per sq. yd., before the LAC were estopped and precluded from claiming any higher amount in view of the Section 25 of the Act as it then stood”. On behalf of the claimants/respondents, it was contended that since the High Court had found that no notice under Sections 9 and 10 of the Act had been served on the respondents, Section 25(2) of the Act had no application. It was further specifically contended that “respondents having amended their memo of appeal as also the reference in terms of Order 6 Rule 17 of the Code of Civil Procedure (CPC), vis-a-vis Section 53 of the Act, the High Court had the requisite jurisdiction to enhance the amount of compensation in favor of the respondents”. [SCC p. 18) Conclusions of the Hon’ble Supreme Court:

9. In its judgment dated September 7, 2005 in Smt. Pramod Gupta’s case (supra), the Hon’ble Supreme Court came to the following conclusions on the above questions:

(a) As regards the plea that Section 25(2) of the Act as it then stood, had no application since the notice under Sections 9 and 10 had not been issued to the land owners, it was held as follows:
124. Although the question is to be considered by the High Court afresh, we may point out that in the event it is found that the unamended provision of Section 25 of the Act is held to be applicable, the High Court could not have awarded compensation at the rate of Rs. 98 per sq yard whereas the claim was made only for Rs. 25 or Rs. 50 per sq yard by the claimants.
(b) The Hon’ble Supreme Court based its conclusion on the fact that “it is not in dispute that in the proceeding giving rise to Award No. 2040 dated 2-12-1967 a claim was made by the respondent Smt. Pramod Gupta claiming compensation to the extent of 1/4th share in the entire land. It has also not been disputed before us that Section 25 contains a substantive provision of law and not a procedural one and, thus, the statutory provision as it existed prior to its amendment in the year 1984 shall apply”.[SCC p. 48]

(c) Significantly, the Hon’ble Supreme Court approved the observations of the reference court which explained why the claimant could not be given awarded compensation at a rate higher than Rs. 12,000/- per bigha “because the claimants have not been able to produce any evidence on record with regard to higher compensation having been given in respect of any other superior land in Village Munirka or Ber Sarai…. [SCC p. 51] ) The Hon’ble Supreme Court after quoting the above observations of the reference court held that “nothing has been shown before the High Court that the said findings of the Reference Court were unfounded. The High Court in its judgment has proceeded in computing the amount of compensation on the basis of the circle rates without considering this aspect of the matter.

(d) As regards the plea that the claim application in the reference case had been amended, the Supreme Court clearly negatived such plea as is evident from the following two paragraphs:

133. Mr Salve submitted that the bar under Section 25 of the Act must be considered having regard to Section 53 thereof which provides for applicability of the provisions of the Code of Civil Procedure. The learned Counsel urged that the respondents had already filed an application for amendment of the memo of appeal in terms of Order 41 Rule 3 of the Code of Civil Procedure, which having been allowed, would amount to amendment of the claim application in the reference case itself. Strong reliance in this behalf has been placed on Harcharan v. State of Haryana and Ghaziabad Development Authority v. Anoop Singh .
134. We do not agree. The pleadings before the trial court are the basis for adduction of evidence either before the trial court or before the appellate court. By amending the memo of appeal the original pleadings cannot be amended. The respondent claimants made their claim before the the Reference Court claiming compensation for the lands acquired under two different references at a certain rate. They are bound by the said pleadings. Section 53 merely provides for applicability of the provisions of the Code of Civil Procedure including the one containing Order 6 Rule 17 thereof. Order 6 Rule 17 of the Code of Civil Procedure postulates amendment of pleadings at any stage of proceedings. Before an amendment can be carried out in terms of Order 6 Rule 17 of the Code of Civil Procedure the court is required to apply its mind on several factors including viz. whether by reason of such amendment the claimant intends to resile from an express admission made by him. In such an event the application for amendment may not be allowed.
(e) The Hon’ble Supreme Court then dealt with the consequences of the failure to amend the pleadings and observed as follows in Para 138:

It may be true that not only the memorandum of appeal but also the reference was amended. Mr Rao pointed out that the necessary amendments have been carried out in the application for reference or memorandum of appeal. In terms of Order 6 Rule 18 of the Code of Civil Procedure, such amendments are required to be carried out in the pleadings by a party which has obtained leave to amend his pleadings within the time granted therefore and if no time was specified then within fourteen days from the date of passing of the order. The consequence of failure to amend the pleadings within the period specified therein as laid down in Order 6 Rule 18 of the Code is that the party shall not be permitted to amend its pleadings thereafter unless the time is extended by the court. It is not in dispute that such an order extending the time specified in Order 6 Rule 18 has not been passed.
(f) The Hon’ble Supreme Court further noticed in Para 139 as under:
…The finding of fact arrived at by the Reference Court to the effect that the appellants had not been able to show that the lands situated at the aforementioned village are not only inferior to the land situated at Village Masoodpur and which finding having not been reversed by the High Court, any consideration other than those which found favor with the Reference Court could not have been entertained. The High Court in its judgment has referred to various decisions showing that the rates specified in the notification issued by the Union of India would be admissible in evidence. There is nothing to show that the said judgments were brought on record in accordance with law. There is also nothing to show that any application under Order 6 Rule 17 CPC was filed and allowed by the High Court permitting the respondents to bring the said judgment on record. In fact, several reported judgments have been referred to by the High Court not for the purpose of applying the ratio therein as precedent that such notifications are admissible in evidence but for the purpose of computing the amount of the compensation on the basis of the rates at which the market price was fixed therein. The High Court had referred to the judgments whereby the market value of the land had been calculated on the basis of the rates specified in such notification in respect of Vasant Vihar, defense Enclave and several other areas, without arriving at any finding that the said judgments are admissible in evidence or otherwise have relevance for determination of the market value of the land in question. The rights of the parties, it is well settled must be determined on the basis of the case pleaded and proved by leading proper evidence and just not on the basis of other reported judgments.
(g) This was followed by the Hon’ble Supreme Court categorically holding that the amendments to the pleadings had not been carried out in terms of Order 6 Rule 17 CPC and therefore could not have formed the basis for the High Court to have permitted the additional evidence to come on record. This is what the Hon’ble Supreme Court held:
140. We have noticed hereinbefore that the amendments have not been carried out in the pleadings in terms of Order 6 Rule 18 of the Code of Civil Procedure. The said provision being mandatory, if not complied with the consequences flowing there from shall ensue.
Summary of conclusions of the Hon’ble Supreme Court:

10. The upshot of the above discussion of the judgment of the Hon’ble Supreme Court may be summarized:

(i) The contention of the claimants/respondents that Section 25(2) of the Act as unamended had no application was negatived. The Hon’ble Supreme Court required the High Court to re-determine the issue and further held that if it was found that the unamended Section 25 will apply, then the land owners would not be permitted to claim compensation higher than what was claimed before the reference court, i.e., Rs. 25 per sq. yd. or Rs. 50 per sq. yd.
(ii) The conclusion reached by the reference court that the claimants had not been able to produce any evidence on record to support their claim for a compensation higher than Rs. 12,000/- per bigha, ought not to have been upset by the High Court in the absence of any material.
(iii) The contention of the claimants that the amendment to the memo of appeal would amount to amendment of the reference application itself, was negatived.
(iv) Since no order extending the time for amendment of pleadings in terms of Order 6 Rule 18 CPC had been passed and the amendments not having been carried out, the claimants could not be permitted to amend its pleadings.
(v) The judgments relied upon by the High Court to enhance compensation were not on record and could not therefore form the basis for enhancement. The rights of the parties have to be determined on the basis of the case pleaded and proved by leading appropriate evidence and not on the basis of other reported judgments.
(vi) The amendments to the memo of appeal and reference applications could not have been the basis for allowing additional evidence as was done by the High Court.
Present Applications

11. After the matters were remitted to this Court, they were shown in the cause list of July 6, 2006 for final hearing. On July 5, 2006, i.e., one day prior to the hearing, these four applications have been filed, one in each of the appeals, by the respondents (claimants) praying for the reliefs set out in the second paragraph of this order. The basic contention in these applications is that “this Hon’ble Court vide orders dated 25th August, 1999 allowed the application CM No. 114/94 seeking amendment of the reference petition and the grounds of cross objections”. (Para 1 of the application, CM 8863/06)

12. It is also contended that by an order dated August 25, 1999 this Court also allowed CM No. 2436/1999 for payment of deficiency of court fees on the memos of cross objections “according to the amended reference petition claiming at the rate of Rs. 150/- per sq. yd”. (para 2) It is claimed that the hearing of these appeals by this Court in the earlier round (which culminated in the judgment dated October 5, 2001 which has now been set aside by the Hon’ble Supreme Court) proceeded “on the basis of the reference petitions under Section 18 of the Land Acquisition Act and the cross objections, as having stood amended as prayed for with the payment of proper court fees on the enhanced claim @ Rs. 150/- per sq. yard made by these respondents.” (para 3, emphasis supplied)

13. It is further contended in para 3 of these applications that “however, due to the bona fide mistake or omission, the amended reference petitions and the amended cross objections were not filed”. It is also claimed that “in fact, both the parties remained under bona fide impression that vide order dated 25th August, 1999, the said reference petitions and the cross objections stood amended with payment of proper deficient court fees having been made out and the arguments were heard as if the said amended petitions and amended cross objections had been made or filed”.

14. Interestingly in para 10 of the application, it is contended that “the aforesaid bona fide omission came to the light not only to respondents but also to the appellants only before the Hon’ble Supreme Court when the appeals filed by the Union of India were being heard by the Apex Court”.

15. On the basis of the aforesaid contentions, it is prayed that the respondents (claimants) should now be permitted to file the amended reference petition and amended cross-objections (copies enclosed to the applications) and the delay in filing the same should be condoned. Alternatively it is prayed that the respondents/applicants should now be permitted to amend reference petitions and cross-objections “to include the amendments already sought in the applications for amendment of reference petitions and cross-objections which had been allowed by this Hon’ble Court earlier vide orders dated 25th August, 1999…”

Submissions of counsel for Appellants and our conclusions:

16. We have heard Shri L.R. Gupta, the learned senior counsel, appearing for the respondents/claimants at length. Shri Gupta reiterated the submissions made in the applications and sought to contend that the amendments to the reference petitions and cross-objections, permitting the respondents claimants to claim up to Rs. 150/- per sq. yard, already having been allowed by the order dated August 25, 1999, the filing of the amended reference petitions to comply the requirements of Order 6 Rule 18 CPC was only a formality and ought to be permitted by this Court.

17. On this first contention the Court sought to examine the record in order to ascertain whether in fact the order dated August 25, 1999 of this Court allowed any amendment as contended by Mr. Gupta. This was particularly because copy of the said order had not been annexed to the applications. On perusing the record of all the four cases, it appears that on August 25, 1999 the following identical order was made in each of the four applications, i.e., CM. No. 1435/99 in RFA. No. 85/87; CM. No. 1437/99 in RFA No. 86/87, CM. No. 1433/99 in RFA No. 84/87 and CM 1436/99 in RFA No. 83/87:

Allowed subject to making good deficiency in court fee.
18. To satisfy ourselves as to what the prayers in these applications were, we again perused the record and noticed that the prayer in each of these applications was more or less identical. For instance the prayer in CM 1433/99 in RFA 84/87 reads as under:

In view of the aforesaid facts and in the interest of justice, it is respectfully prayed that the respondents/claimants/bhumidars be permitted/ allowed to pay deficit court fees of Rs. 4,67,967/- on the amount of enhanced compensation claimed by these respondents at the aforesaid rate of Rs. 150/- per sq. yard on their undivided 1/8th share in the area of 3224 bighas of land acquired by the award No. 2225 in question.
19. The record is, therefore, unambiguous that the order dated August 25, 1999 allowing the above applications only permitted the respondents claimants to pay the deficit court fees and nothing more. In none of these cases is there any other order passed on August 25, 1999. We thus fail to understand the basis for the averment in the aforesaid applications that an order had been made on August 25, 1999 in CM 114/94 permitting amendments to the reference petitions and cross-objections.

20. Faced with this difficulty, Mr. Gupta drew our attention to an Order dated January 17, 1994 made in CM 114/94 in RFA No. 85 of 1987 whereby this Court directed notice to be issued on the applications. However, Mr. Gupta was unable to point out any further order on this CM 114/94 in RFA 83/87 allowing it. While it does appear that this application CM 114/94 in RFA 83/87 (and other identical applications, CM 117/94 in RFA No. 84/1987; CM 111/94 in RFA No. 85/1987 and CM 108/94 in RFA No. 86/87), were in fact filed under Order 6 Rule 17 CPC seeking amendment to the reference petitions under Section 18 of the Act and the cross-objections, claiming compensation @ Rs. 150/- per sq. yd., no further order appears to have been passed actually allowing these amendments.

21. The factual position, therefore, is that there was no order whatsoever passed by this Court allowing the amendments sought to be carried out by the respondents claimants by applications filed by them under Order 6 Rule 17 CPC, claiming enhanced compensation. It appears that although this fact was discovered by the respondents/claimants while the matter were being heard before the Hon’ble Supreme Court, it was not brought to the attention of the Hon’ble Supreme Court. On the one hand, as noticed in para 138 of the judgment of the Hon’ble Supreme Court, a contrary submission appears to have been made. This is what perhaps led to the Hon’ble Supreme Court to observe that these were “purported amendments” which in any way could not be permitted. It was held that failure of the respondents claimants to file the amended petitions as required under Order 6 Rule 18 CPC, would disentitle them to do so at a later stage. It now appears that since the amendments were never allowed in the first place, the question of filing such amended petitions did not arise either.

22. Mr. Gupta made a faint attempt to rely on the observations made in the earlier judgment of this Court dated October 5, 2001 to the following effect:

In view of the order passed on 25.8.99 allowing amendment to the memorandum of appeal and of the fact that deficiency in court fee was made good there is no need to pass separate orders. In any case the applications seeking amendment to memorandum of appeal, in terms of order dated 25.8.99 and of the decisions of Supreme Court in …are allowed.
23. Mr. Gupta contended that the above observations showed that the High Court had in fact allowed the amendments on August 25, 1999. We are unable to agree for more than one reason. First, the entirety of the judgment of this Court dated October 5, 2001 has been set aside by the judgment dated September 6, 2005 of the Hon’ble Supreme Court and, therefore, little purpose would be served by referring to the said judgment dated October 5, 2001 of this Court. Secondly, the record of the case, as explained hereinabove, does not support the above observations of the High Court in the earlier order dated October 5, 2001. Clearly the attention of this Court at that stage was not drawn to the fact that the amendments had in fact not been allowed by its order dated August 25, 1999. Thirdly, as observed by the Hon’ble Supreme Court in its judgment dated September 6, 2005, the amendments to the memorandum of appeal cannot be construed to be an order allowing the amendment to the reference applications itself.

24. For all the above reasons, we are unable to accept the plea of the respondents/claimants that they should now be permitted to file the amended reference petitions and the amended cross-objections. In the circumstances explained hereinabove such prayer cannot be acceded to.

25. Mr. Gupta vehemently urged, particularly with reference to para 124 of the judgment dated September 7, 2005 of the Hon’ble Supreme Court that the question of the applicability of the unamended Section 25 of the Act had been left open and that if ultimately this Court, on re-hearing the matter as directed by the Hon’ble Supreme Court, came to the conclusion that the unamended Section 25 would not apply, then he would be permitted to claim a higher compensation in terms of the present Section 25 of the Act. On this basis Mr. Gupta contended that even if the amendment had not so far been allowed by this Court, he should now be allowed to amend his reference petitions and cross-objections. We are unable to accept this plea of Mr. Gupta. In the first place, even the alternative prayer in the present applications seeks amendment of the reference petition with reference to the “amendments already sought in the applications by amendment of reference petitions and cross-objections which had been allowed by this Hon’ble Court earlier by the order dated August 25, 1999”. This repeated insistence by the respondents claimants is, as already explained, totally contrary to the record since the order dated August 25, 1999 did not allow amendments sought to be carried out to the reference petitions and cross-objections. Secondly the matter having gone to the Hon’ble Supreme Court, and the applicants having discovered, as they now aver in para 10 of their applications, during the course of hearing in the Supreme Court that no amended reference petition or amended cross-objection had in fact been filed, it was duty of the applicants to have brought this fact to the notice of the Hon’ble Supreme Court. They chose not to do so for reasons best known to them. It is clearly an abuse of the process of the Court to wait for the matters to be sent back to this Court and then, to move the present applications and to still insist that the failure to seek amendments earlier to the reference petitions and cross-objections or to file such amended reference petition and amended cross objection, was only a bona fide mistake. We are afraid that this kind of a plea, in a matter which has travelled twice to the Hon’ble Supreme Court, cannot be countenanced at all. These matters have been pending in this Court for nearly two decades and the parties before us, particularly the respondents/claimants, are fully aware of the entire record and the legal consequences of each one of the orders passed by this Court in the several applications filed by them. Even if the Court were to hold that the amended Section 25 would apply that could not entitle the claimants to automatically claim a higher amount without actually amending the pleadings to bring on record materials to support their claim for a higher compensation. As noticed by the Hon’ble Supreme Court, they had sufficient opportunities to do so but have failed to do so. In fact it is incredible that the respondents/ claimants are now seeking to amend a reference petition which they filed before the District Court more than 2 decades ago and cross-objections which they filed in this Court in 1987. Given the long history of this matter, granting of such indulgence to the claimants would not be in the interests of justice and in any event contrary to the mandate of the law.

26. After the arguments had been heard at considerable length, Mr. Gupta sought leave to withdraw these applications. Since considerable arguments had been heard and matter examined in depth with reference to the record, we were not inclined to accept this plea either.

27. We are unable to persuade ourselves to accept the plea of the respondents/applicants in these applications that their failure to file the amended reference petitions was a bona fide mistake. There is no merit whatsoever in the contentions of the applicants.

28. In conclusion, we may add that we are not a little perturbed that incorrect statements have been made in the applications filed before us which are not only unsupported by the record of the case but are in fact contrary to it. We do not approve of this conduct and hope that the applicants will now cooperate in the expeditious disposal of these appeals which have been pending for several years.

29. We accordingly dismiss these applications with costs which we quantify at Rs. 25,000/- in all. These costs will be paid to the Delhi High Court Legal Services Committee within a period of two weeks from today.