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B. Prag NaraIn Vs. U.P. Government - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAllahabad High Court
Decided On
Case NumberFirst Appeal No. 12 of 1947
Judge
Reported inAIR1959All214
ActsCode of Civil Procedure (CPC) , 1908 - Sections 114 - Order 47, Rule 1; Land Acquisition Act, 1894 - Sections 23 and 53; Uttar Pradesh Town Improvement Act, 1920 - Sections 58 and 63
AppellantB. Prag Narain
RespondentU.P. Government
Appellant AdvocateH.N. Seth, ;B.N. Mehrotra and ;J.B. Lal, Advs.
Respondent AdvocateStanding Counsel
DispositionAppeal allowed
Excerpt:
..... - review - section 114 and order 47 of code of civil procedure, 1908 and sections 23 and 53 of land acquisition act, 1894 - tribunal dissatisfied by its previous judgment - judgment passed in review entirely different from the previous judgment - entirely new judgment cannot substitute original judgment - order of the tribunal outside limits of its jurisdiction and in contravention of provisions of law. - - it was said that the building in the other case was much better and yet only 20 times the ground rent was awarded. it was pointed out in paragraph 3 that the award of the land acquisition officer in regard to the state of the buildings in the present case show that the structures were not less than 25 years old, and that the constructions were very poor and the rooms extremely..........babu prag narain, situate within the area to which the act applied, was acquired under the town improvement act read with the land acquisiton act of 1894. the land acquisition officer awarded compensation at 14 years annual rental value. babu prag narain, the awardee, was dissatisfied with the compensation and he made an application praying that under section 18 of the land acquisition act of 1894 read with section 53 of the u. p. town improvement act a case regarding the compensation to be awarded for the acquisition in question should be referred to the tribunal.in his application babu prag narain claimed that the land acquired was very valuable and that he should have been given, as the fair market value, 30 years capitalised rental value as fixed by the land acquisition.....
Judgment:

1. This is an appeal by Babu Prag Narain with a certificate to appeal to this Court under Section 3(1) (b) of the U. P. Town Improvement (Appeals) Act (Act No. III) of 1920 by the Tribunal Improvement Trust, Kanpur created under the Act. By the time the Tribunal could grant the certificate, the said Act had been repealed and replaced by the Kanpur Urban Area Development Act, (U. P. Act No. VI of 1945) and, therefore, (permission to the appellant to appeal was granted under Section 119 of that Act.

2. It appears that a compound containing structures belonging to the appellant Babu Prag Narain, situate within the area to which the Act applied, was acquired under the Town Improvement Act read with the Land Acquisiton Act of 1894. The Land Acquisition Officer awarded compensation at 14 years annual rental value. Babu Prag Narain, the awardee, was dissatisfied with the compensation and he made an application praying that under Section 18 of the Land Acquisition Act of 1894 read with Section 53 of the U. P. Town Improvement Act a case regarding the compensation to be awarded for the acquisition in question should be referred to the Tribunal.

In his application Babu Prag Narain claimed that the land acquired was very valuable and that he should have been given, as the fair market value, 30 years capitalised rental value as fixed by the Land Acquisition Officer i. e., 30 times, of Rs. 2,568/11/0. He also claimed a certain amount by way of compensation for delayed acquisition. The reference came up before the Tribunal consisting of the President and Assessors and, after taking evidence, they, by their judgment dated 5-10-1944, gave the awardee compensation at 25 times the annual rental value; the latter was fixed at Rs. 3,186/-.

From that sum taxes and 16 percent, for repairs were deducted totalling a sum of Rs. 617/5/-, and thus the balance came to Rs. 2,568/11/- and this figure multiplied by 25 worked out to a figure of Rs. 64,217/3/- and this sum was awarded to Babu Prag Narain; thus increasing the amount of the Land Acquisition Officer's award by Rs. 28,255/9/-.

3. From the judgment of the Tribunal, it is clear that they had determined the compensation on the annual rental valuation minus deductions for taxes and repairs as already indicated and that they have awarded 25 times the rental valuation as compensation on the ground that the land is valuable, being close to the Mulganj cross-roads.

4. On 31-1-1945 a review application was made by the Government pleader to the President of the Tribunal purporting to be under Section 115 and O. 47, Rule 1 of the Civil Procedure Code. It is obvious that Section 114 was meant and not Section 115 of the Code. The ground of review was that in giving judgment in the case the Tribunal had wrongly thought that in this case the basis of calculation was ground rent and not annual rental value.

It was alleged that on the very date that this case was heard another reference No. 178 of 1942 had been heard and in that case the compensation awarded was calculated on the basis of ground rent, compensation to the owner of the land (who was also the present awardee) being granted at 25 times the ground rent, and to the owner of the building situate on the land (who was another person, namely, Saran Singh) compensation was awarded at 20 times the ground rent.

It was said that in awarding a multiple of 30 times, the Tribunal in this case thought that the basis here for calculation also was ground rent andnot annual rental value. It was said that the building in the other case was much better and yet only 20 times the ground rent was awarded. It may be stated that the ground rent is merely the rent of the ground, while annual rental value is fixed by the Municipal Board having regard to the rent which the building in question is fetching at the time of the Municipal assessment.

5. It was stated in paragraph 3 of the review application that there was thus a mistake apparent on the face of the record and that the Tribunal fell into the error of granting compensation at 30 years purchase, despite the fact that the buildings here were inferior to that of Saran Singh in the previous case and that the multiple awarded should in no case have exceeded 20 years valuation.

It was pointed out in paragraph 3 that the award of the Land Acquisition Officer in regard to the state of the buildings in the present case show that the structures were not less than 25 years old, and that the constructions were very poor and the rooms extremely insanitary, that out of the 21 structures, four had completely been razed to the ground 11 were Kachha and had very poor constructions, 4 were of bricks in clay and two were built of bricks partly in clay and partly with mud, Finally, it was stated in that application:

'Looking to all the facts stated above it is respectfully submitted that the tribunal will be pleased to review its judgment so far as the number of years' purchase is concerned and reduce the same appreciably in order to do full justice to the defendant applicant.'

6. It will be apparent from this review application that what was being said in effect was that the judgment was incorrect and that a fresh judgment should be given.

7. The Tribunal accepted the review application and reduced the multiple from 25 years to 20 years. In its judgment of 30-5-1945 passed on review it refers to the fact that it had heard the reference of Saran Singh also on 21-9-1944 when it disposed of the present reference. It pointed out that in that case the Land Acquisition Officer had given Saran Singh a multiple of 20 for the buildings and had given Prag Narain a multiple of 25 for the land and that the Tribunal had refused to increase the multiple of 20 for the building.

The Tribunal then proceeded to say that the Government Pleader urged that the Tribunal was misled in the present case by the award of a multiple of 25 in Saran Singh's case for the Land.

The Tribunal said that it agreed that it was so misled because it thought that here too the calculation would be on ground rent. It then proceeded to consider the legal position and said that it was open to a court to review its judgment where the judge had made a mistake, even though the mistake was not apparent on the face of the record.

It then said that it agreed that 14 was a proper multiple for the buildings, which were really only huts. It then added that it is usual to find that rents of huts in a hata are not based on the capital value of the buildings but are high. It then goes on to say that the annual rent of these 21 nuts was Rs. 2,186/-.and that it was obviously a high figure for poor constructions of that sort.

But it has added that, on the other hand, the site itself was valuable, being close to the Mulganj crossing, though the actual frontage on the Latouche Road was considerably less than the depth of the hata. Then it adverts to the fact that in fixing 25 as multiple it had said in its previous judgment as follows:

'The land is valuable, being close to the Mulganj cross-roads, and we assess the value at 25 years' purchase.'

It added that it had said nothing about the building in its previous judgment and it took it as an ordinary case of ground-rent. It then added that the Government Pleader admitted that 14 times of the annual rental value of the buildings was too small and that the multiple should be 20 times. Agreeing with this view the Tribunal reduced the multiple from 25 to 20 years and the compensation awarded was brought down from the original figure to Rs. 51,373/12/-.

8. Aggrieved by this order on the review application, Prag Narain preferred the application for leave to appeal to this Court to which we have already referred, and inter alia urged therein that there was no mistake apparent on the face of the record and that the reference in the present case had nothing to do with the other reference No. 178 of 1942. A certificate as prayed for was granted by the Presiding Judge of the Tribunal on 12-12-1945 as already mentioned.

9. In this appeal two points are raised. First of all, it is contended that the Tribunal had no power to review its order. The second contention was that the order passed by the court below upon the review application was quite outside the scope of a review and that in fact a fresh judgment had been written by the tribunal because it thought that its previous judgment was wrong. In this connection our attention was drawn to the language of Section 144 and Order 47, Rule 1 of the Civil Procedure Code. Section 114 reads as follows:

'114. Subject as aforesaid, any person considering himself aggrieved--

(a) by a decree or order from which an appeal is allowed by this Code, but from which no appeal has been preferred,

(b) by a decree or order from which no appeal is allowed by this Code, or

(c) by a decision on a reference from a Court of Small Causes,

may apply for a review of judgment to the Court which passed the decree or made the order., and the Court may make such order thereon as it thinks fit.'

Order 47. Rule 1 runs as follows:

'1. (1) Any person considering himself aggrieved--

(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred,

(b) by a decree or order from which no appealis allowed, or

(c) by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order.

(2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the appellate Court the case on which he applied for the review.'

10. It was contended that this was not a case where there had been discovery of any new and important matter or evidence which after the exercise of due diligence was not within the knowledge of the Government, and that there was no mistake or error apparent on the face of the record. Further it was urged that there was no other sufficient reason for asking for a review. It has not been contended before us on behalf of Government that there was in this case any discovery of new and important matter or evidence, or that any other sufficient reason has been shown.

But it was contended that there was a mistake or error apparent on the face of the record which entitled the Government to ask for a review. As the wordings of Order 47, Rule 1, C. P. Code show, the error has got to be apparent on the face of the record. We need not necessarily limit the word 'record' to the judgment. The error has however to be shown from the record and not from any external material. Moreover, the error has got to be patent. It has to relate to some proposition of law or some matter which is in controversy.

11. Now it is apparent from the narration hereinbefore made that in this case from the very beginning the Municipal annual rental value was taken as the basis of the award and not the rent of the land. The Land Acquisition Officer gave 14 times the Municipal annual rental value. The awardee claimed 30 years capitalised annual rent or value as fixed by the Land Acquisition Officer i.e. 30 times Rs. 2,568-11-0. This figure of Rs. 2,528-11-0 which as has been previously indicated, is arrived at after deducting from the annual rental value of Rs. 3,186/- the sum of Rs. 617-5-0 for taxes and repairs. In the evidence before the Tribunal, the awardee nowhere said that any claim was being made on the basis of the rent of the land. The valuable nature of the land was sought to be established by the evidence, and sale deeds were filed as examplars in order to show at what rate land had been sold in the neighbourhood. The awardee had also said that he had applied for permission to put up certain buildings and further said that if permission had been granted and buildings had been put up then the buildings would have fetched Rs. 850/- and Rs. 900/- per month.

12. A witness was produced on behalf of the awardee, one J. N. Sharma, who clearly stated that if those buildings had been put up they would havo fetched a rent of Rs. 850/-.

13. Witness Mohammad Asghar then gave the prices at which some of the land had been sold.

14. Besides this evidence, there were the several exemplars before the learned Tribunal.

15. The judgment of the learned Tribunal dated 5-10-1944 sets out that the issues are, inter alia, (1) should the annual rental valuation of the land be taken to be not Rs. 3,186/-, as taken up by the Land Acquisition Officer, but Rs. 3,840/- as claimed or a figure between? (2) Should the number of years' purchase be increased from 14 to 30? (3) Is the claim made by petitioner for compensation on the basis of the present market value of the land maintainable under the law?

16. It was found by the Tribunal that the annual rental value should be taken as being Rs. 3,186/- and it says that this was agreed to. In the finding under Issue No: 2 what is said is that the land is valuable being close to the Moolganj cross roads and that therefore, it is assessed at 25 years purchase. It is obvious to us from this judgment that there could have been no doubt in the mind of the Tribunal that calculations were to be made on the basis of annual rental valuation of Rs. 3,186/- and not on the basis of mere rent of the land and it is also obvious from the judgment that the Tribunal considered the land as valuable. This is not at all astonishing, having regard to the fact that evidence had been tendered before it to show that the land was valuable, and for this reason it awarded 25 times the annual rental-value as compensation.

Now the Tribunal says that it would give only 20 times the annual rental value and that it had previously fixed a multiple of 25 times under the mistaken belief that the basis of compensation was rent, not annual rental value. It says that in the other case of Saran Singh it had evaluated the land at 25 times the rent and it had evaluated the building at 20 times the rent, and that, therefore, it could not have given 25 times the annual rental value to the applicant in the present case. It seems to us to be clear that the Tribunal wanted to change its mind and that this was not at all a case of an error apparent on the face of the record.

17. Upon the evidence tendered and the examplars it is clear that the multiple of 25 times of the annual rental value could under the law have been given, because the land on which the structures stood was-valuable. It must be borne in mind that in Saran Singh's case compensation was awarded separately for the land and for the building, the awardees being two and different. In this case the awardee is only one person and the building and land both belong to the awardee and a simple basis of compensation has been adopted. There is nothing to show as to how much of the land in Saran Singh's case was appurtenant to the building itself and how much of it was separate. Quite obviously, if both the owner of the land and of the building were being separately compensated, the owner of the building would get lesser compensation than if he got compensation on the basis that he owned the building as well as the land.

We do not think therefore that Saran Singh's case which has been referred to could have caused any confusion in the mind of the Tribunal. It is to be noted that in the review application it is nowhere mentioned that during the course of the hearing there was any statement made by the Tribunal that it would award compensation on the basis of the supposed rent. If something had been said about how the mind of the Tribunal had been expressed at the time of the hearing before it gave its original judgment, something might have been said in favour of the position taken up by the Tribunal that it slipped into an error.

18. It seems to us that the error, if any, in this case was not at all an error apparent on the face of the record. The so-called error has been introduced by the review application only by reference to something held in Saran Singh's case which obviously was something extraneous to the present record. In fact the judgment passed in review seems to us to substitute an entirely new judgment for the original judgment because the Tribunal was dissatisfied with its previous judgment. This cannot be done on the basis of the powers given under Section 114 or Order 47, Rule 1 of the Code of Civil Procedure.

We are therefore of the view that assuming that the Tribunal had jurisdiction to review its own order it has in this case travelled outside the limits of its jurisdiction and that while purporting to review its order, it has in fact come to a completely fresh decision upon the basis of the submissions made in the application for review. The order upon the review application therefore will have to be set aside.

19. Inasmuch as we decided in favour of the appellant on the basis that a review application lay, it does not seem necessary for us to deal at length with the second argument that no review application would lie. But inasmuch as an argument has been advanced before us, we think that we may briefly indicate the position.

20. Now under the Land Acquisition Act, whenever there is any acquisition of property and any person interested has not accepted the award made by the Land Acquisition Officer he can ask for a reference to be made to the Court under Section 18. The Land Acquisition Act thereafter provides for the procedure to be followed when such a reference is made.

21. The reference under Section 18 of the Land Acquisition Act is to the Court; and 'Court' has been defined in Section 3(d) of the Act as meaning a principal Civil Court of original jurisdiction, unless the appropriate Government has appointed (as it is hereby empowered to do) a special judicial officer within any specified local limits to perform the functions of the Court under this Act. The U. P. Town Improvement Act has substituted a 'Tribunal' for the 'Court' and under the Act the Tribunal is made the Court for purposes of acquisitions made within the area to which the Town Improvement Act is applicable.

Section 57 of the Town Improvement Act provides that a Tribunal shall be constituted, as provided in Section 59, for the purpose of performing the functions of the Court in reference to the acquisition of land for the Trust, under the Land Acquisition Act, 1894. The constitution of the Tribunal is set out in Section 59 and the Tribunal has to consist of a President and two assessors. The qualifications of the President are laid down, and there are other incidental matters also laid down in Section 59. Section 58 of the said Act states that for the purposes of acquiring land under the said Act (meaning the Land Acquisition Act) for the Trust--

(a) the Tribunal shall (except for the purposes of Section 54 of that Act) be deemed to be the Court, and the President of the Tribunal shall be deemed to be the Judge, under the said Act;

(b) the said Act shall be subject to the further modifications indicated in the Schedule;

(c) the President of the Tribunal shall have power to summon and enforce the attendance of witnesses, and to compel the production of documents, by the same means, and (so far as may be) in the same manner, as is provided in the case of a civil Court under the Code of Civil Procedure, 1908.

22. In regard to the question whether the Tribunal has power to review its own order, Section 58(b) quoted above is of importance. It says that the said Act, that is to say the Land Acquisition Act, shall be subject to the further modification indicated in the Schedule. Now when we turn to the Schedule of the Town Improvement Act, we find that it modifies various sections of the Land Acquisition Act including Section 18 which, as we have already indicated, is the Section dealing with reference to the Court; and other sections' are also modified. It is to be noted that Section 53 of the said Act is not modified.

Now Section 53 of the Land Acquisition Act is the Section whereby the Code of Civil Procedure has been applied to proceedings before the Court, namely, the Court within the meaning of the Land Acquisition Act. Section 53 runs as follows :

'Save in so far as they may be inconsistent with anything contained in this Act, the provisions of the Code of Civil Procedure (XJV of 1882), shall apply to all proceedings before the Court under this Act.'

The question is whether Section 53 fines or does not apply when the Tribunal which is constituted under the Town Improvement Act, and which has been given the status of a Court as under the Land Acquisition Act, deals with a reference. In our view, inasmuch as the Town Improvement Act clearly puts the Tribunal under theTown Improvement Act on the same tooting as the Court under the Land Acquisition Act, there is no reason why Section 53 of the Land Acquisition Act should be deemed to have been excluded in its application to proceedings before the Tribunal constituted under the Town Improvement Act.

Section 58(b) of the Improvement Act says that the said Act, meaning the Land Acquisition Act, shall be subject to the further modifications indicated in the Schedule. This clearly means that those sections of the Land Acquisition Act which are not modified have been made applicable to proceedings taken under the Town Improvement Act. It must not be overlooked that the provisions of Section 18 and other sections, which are the sections which give the power of reference and which deal with how once a reference is made the proceeding relative thereto is to be held, are not contained in any analogous sections in the Town Improvement Act. It is clear that proceedings for the acquisition of land and for the awarding of compensation for land in areas to which the Town Improvement Act is applicable, have to be taken in accordance with the Lund Acquisition Act, subject to any restrictions placed by the Town Improvement Act.

23. It is, however, submitted that Section 63 of the Town Improvement Act shows that the Legislature intended Section 53 of the Land Acquisition Act would not apply and the Legislature expected Rules regulating the procedure would be made under the Town Improvement Act and that proceedings before the Tribunal would not be governed by the Civil Procedure Code. Section 63 runs as follows :

'63. (1) The State Government may from time to time make rules, not repugnant to the Code of Civil Procedure, 1908, for the conduct of business by Tribunals established under this Act. (2) All such rules shall be published by notification.'

In our view, this Section of the Town Improvement Act, far from making Section 53 of the Land Acquisition Act inapplicable, really shows that it is applicable because the power given under Section 53 of the Town Improvement Act is only to make rules not repugnant to the Civil Procedure Code.

Inasmuch as Section 63 of the Town Improvement requires that repugnancy with the Civil Procedure Code should be avoided, it follows that Section 53 of the Land Acquisition Act which applies the Civil Procedure Code to proceedings under the Land Acquisition Act was applicable to proceedings before the Tribunal also because of Section 58(b) of the Town Improvement Act. In our view, it is evident from the scheme of both the Land Acquisition Act and the Town Improvement Act that the Acts have to be read as complementary to each other and that the Town Improvement Act only aimed at effecting some variation in the procedure laid down by the Land Acquisition Act, particularly in regard to the composition of the Tribunal which was to act as a Court for the purpose of I determining the compensation to be awarded,

24. Therefore, in our view, the contention of learned counsel for the appellant, that Section 53 of the Land Acquisition Act which applied the Civil Procedure Code to proceedings under the Land Acquisition Act was not applicable., has to be rejected. But from that it does not follow that the provisions of review are not to be construed strictly and according to Section 114 and Order 47, Rule 1 of the Civil Procedure Code.

25. No other contention has been raised before us.

26. Upon our finding, this appeal must be allowed and the order of the Tribunal dated 30-5-1945must be and it is hereby set aside. The original orderof the Tribunal is restored with costs of this Courtonly.


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