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Private Limited, New Delhi Vs. Edward Keventer (Successor) Private Limited, New Delhi - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtDelhi High Court
Decided On
Case NumberRegular First Appeal No. 91D of 1962
Judge
Reported inILR1972Delhi92
ActsLand Acquisition Act, 1894 - Sections 48(2)
AppellantPrivate Limited, New Delhi
RespondentEdward Keventer (Successor) Private Limited, New Delhi
Advocates: D.Chaudhary,; P.D.Sharma,; A.K. Marwaha and;
Cases ReferredExpress Newspapers Ltd. v. State of Madras
Excerpt:
land acquisition act (1894) - section 48(2)--withdrawal of acquisition proceedings--claim by owner of compensation for damages suffered--scope.; the respondents' land was acquired under the land acquisition act. the government later withdrew from the acquisition. in its claim under section 48(2), the respondent company contended that on account of the acquisition, the company was unable to perform an agreement with a third party which resulted into a dispute. the dispute was decided by an arbitrator by an award under which the respondent company was made liable to pay a certain sum to the said third party. amongst other items, the respondent company claimed the said amount as compensation for the 'damages suffered' within the meaning of section 48(2) of the act.; that the claim to.....p.s. safeer, j.(1) this appeal has been preferred under section 54 of the land acquisition act, 1894, hereinafter called 'the act' against the award dated the 24th of october. 1961. made by an additional district judge of delhi, on a reference made under section 18 of the act. (2) the respondents to this appeal messrs edward keventer (successors) private, limited, were carrying on the business in milk and dairy products for a number of years on a plot of land held on perpetual lease measuring 22.95 acres. a notification under section 4 of the act dated the 2nd of march, 1950, bearing no. 3702/l/49/mlt, was published in the gazette of india dated the 18th of march, 1950, which, amongst other land, sought to acquire 20 acres out of the land on which the respondents were carrying on their.....
Judgment:

P.S. Safeer, J.

(1) This appeal has been preferred under section 54 of the Land Acquisition Act, 1894, hereinafter called 'the Act' against the award dated the 24th of October. 1961. made by an Additional District Judge of Delhi, on a reference made under section 18 of the Act.

(2) The respondents to this appeal Messrs Edward Keventer (Successors) Private, Limited, were carrying on the business in milk and dairy products for a number of years on a plot of land held on perpetual lease measuring 22.95 acres. A notification under section 4 of the Act dated the 2nd of March, 1950, bearing No. 3702/L/49/MLT, was published in the Gazette of India dated the 18th of March, 1950, which, amongst other land, sought to acquire 20 acres out of the land on which the respondents were carrying on their business. The public purpose for which the land included in the said notification was to be acquired, was the setting up of the Diplomatic Enclave. On the 5th of October, 1951, a notification under section 6 of the Act was issued in continuation of the notification mentioned above. Subsequently, a notice was issued under section 9 of the Act and the respondents claimed compensation to the tune of Rs. 47,78,781.00 besides solarium at 15 per cent. The Collector made an award on 18th September, 1952, determining that the present respondents would be entitled to Rs. 34,36,660.00 in case of compulsory acquisition of the land from them. The amount so determined included solarium at 15 per cent. Thereafter an unusual step was taken and another Acquisition Collector was appointed to consider the matter afresh. The respondents then moved the High Court under Article 226 of the Constitution of India and the order appointing another Collector to give a fresh award was quashed by the High Court on the 20th of October, 1953. It was made clear by the High Court that the land was to be acquired on payment of compensation as determined by the award dated the 18th of September, 1952. or it was to be released from acquisition. Some time was taken by the appellants to come to a decision and by a notice dated the 14th of December, 1954, the respondents were informed that the acquisition proceedings were withdrawn in terms of the notification dated the 24th of September, 1954, issued by the then Chief Commissioner of Delhi. The notice was given keeping in view the provisions of section 48(2) of the Act. After receiving the notice, the respondents filed a claim under section 48(2) of the Act urging that they should be awarded compensation in the sum of Rs. 18,52,506/2.00 on account of the damages suffered by them. The Land Acquisition Collector, who dealt with their claim, awarded Rs. 965.00 only by way of compensation and when moved for making the reference against his award dated the 30th of January, 1956, he made the same to the Additional District Judge, Delhi, who after recording the evidence produced before him and after hearing the parties made the award dated the 24th of October, 1961, against which this appeal has been preferred.

(3) The short question which arises for determination in this appeal is as to what compensation the respondents are entitled in terms of section 48(2) of the Act for the damages suffered by them and towards the costs reasonably incurred in connection with the prosecution of the proceedings under the Act. Section 48 of the Act, which has to be considered, is:-

'48.(1) Except in the case provided for in section 36, the Government shall be at liberty to withdraw from the acquisition of any land of which possession has not been taken. (2) Whenever the Government Withdraws from any such acquisition, the Collector shall determine the amount of compensation due for the damage suffered by the owner in consequence of the notice or of any proceeding there under, and shall pay such amount to the person interested, together with all costs reasonably incurred by him in the prosecution of the proceedings under this Act relating to the said land. (3) The provisions of Part Iii of this Act shall apply, so far as may be, to the determination of the compensation payable under this section'.

Sub-section (3) of the aforequoted provision makes the provisions of Part Iii of the Act applicable and section 18 is the first one occurring in that Chapter. A reference can be sought to the court against an award made by the Collector and while determining the compensation the court would be taking into consideration the provisions contained in section 23 of the Act which occurs in the same Chapter. The Land Acquisition Collector, who had originally made the award under section 48(2) of the Act on the 30th of January, 1956, considered all the claims put forward before him by the respondents to this appeal and awarded only :-

'Fees paid to the Pleaders for conducting the acquisition proceedings before the Land Acquisition Collector. .... Rs. 500.00 Costs and fees allowed by the High Court for the proceedings in the High Court .... Rs. 250.00 Expenditure incurred by the claimants for summoning witnesses during the acquisition .... Rs. 215.00 proceeding before the Collector. ________________ Total Rs. 965.00' ________________

The amount of Rs. 965.00 consisted of the three amounts awarded as above. Section 48(2) of the Act in terms allows all costs reasonably incurred in the prosecution of the proceedings under the Act to be claimed apart from the damages which may have been suffered by the owner in consequence of the acquisition proceedings. It is clear that the Land Acquisition Collector only allowed the items which are concerned with the costs incurred in prosecution of the proceedings. While making his award under section 18 of the Act the Additional District Judge came to the conclusion that the respondents were entitled to re cover Rs. 6,265.00 towards the costs incurred by them in the pro secution of the proceedings under the Act. No argument has been raised before us impugning that part of his award.

(4) After filing their claim for compensation under section 48(2) of the Act the present respondents adduced evidence in support thereof before the Land Acquisition Collector. Amongst other items they had claimed a sum of Rs. 2 lacs alleging that they had entered into an agreement dated the 19th of September, 1953, with Messrs. Delhi Glass Works, Limited, and as they could not perform the same, the resulting dispute was referred to arbitration and an award was given against them on the 6th of April, 1954, in terms whereof they were required to pay the said amount to Messrs. Delhi Glass Works, Limited. The Land Acquisition Collector heard the parties and after carefully going through the evidence observed :-

'THIStransaction is evidently bogus. The witness P. W. 14 Shri N. D. Sharma stated before me that the alleged awards had not been filed in court up to 23rd June, 1955, and that no decree had been obtained on the basis of the same award. The period of limitation for filing an award for obtaining a decree is 90 days from the date of the award. This witness has further stated that no payment under this award has so far been made to this company. It is not understood why the Delhi Glass Works have stayed their hands from obtaining their payment under the alleged award of Rs. 2 lacs and should not apply for a decree. The simple reason for this is that it is all bogus. The claimants have tried to prepare a bogus item but have failed to prove the same.'

The Land Acquisition Collector disallowed compensation in respect of the said item and on a reference being made the Additional District Judge in terms of the impugned order allowed in respect of that very item, Rs. 1,70,000 and the counsel on both the sides before us have addressed us only in respect of the compensation so awarded. It deserves to be noticed that the Land Acquisition Collector was surprised that although Messrs. Delhi Glass Works had obtained arbitration award giving them Rs. 2 lacs against the respondents on the 6th of April, 1954, for more than a year and two months, no steps had been taken to get the award filed in court for obtaining a decree in terms thereof. It was also noticed that no payment had been made by the claimants before him, the respondents herein, in terms of the award on which they were placing reliance. The law provides that where any person, who is interested, does not accept the award made by the Collector, he can make an application to him praying that reference be made to the court. Sub-section (1) of section 18 of the Act contemplates that the objection of such as interested person can be to the measurement of the land, to the amount of compensation in respect of the persons to whom such compensation is payable and it can also be to the apportionment of the compensation amongst the persons interested. Sub-section (1) of section 18 is-

'18.(1) Any person interested who has not accepted the award may, by written application to the Collector, require that the matter be referred by the Collector for the determination of the Court, whether his objection be to the measurement of the land, the amount of the compensation, the persons to whom it is payable, or the apportionment of the compensation among the persons interested.'

The objections have to be confined to the award of the Collector. The objector is to show as to how the impugned award is erroneous in respect of the measurement of land taken into consideration for awarding compensation or in respect of the amount of compensation or the persons to whom it has been allowed and as to the apportionment of compensation among the persons to whom it may have been awarded by the Collector. In this case no evidence was adduced by the respondents before the Land Acquisition Collector establishing any payment which they might have made in compliance with the arbitration award dated the 6th of April, 1954. to Messrs Delhi Glass Works.

(5) The Additional District Judge, however, allowed the respondents to adduce evidence and while assailing the award made by him it is contended on behalf of the appellants that the respondents have failed to prove that they had really made any payment to Messrs. Delhi Glass Works, Private, Limited, in compliance with alleged arbitration award. It is further urged that the owner can claim compensation under section 48(2) of the Act only in respect of 'the damage suffered' in consequence of the proceedings for acquisition and the liability, if any, which the respondents allegedly incurred in terms of the arbitration award was not 'the damage suffered' in consequence of the proceedings for acquisition. The learned counsel for the respondents has addressed us at length and has brought to our notice the evidence produced by the respondents to establish that they made the payment in compliance with the arbitration award dated the 6th of April, 1954. He has referred to the statement of A. W. 3, Shri Prem Nath Kakkar. It is stated therein that under the alleged arbitration award a sum of Rs. 2 lacs was payable to Messrs Delhi Glass Works, Private, Limited, but in consequence of negotiations the said concern agreed to accept Rs. 1,70,000 and the board of directors of the respondent approved of the figure which became allegedly payable on account of the negotiations. After having referred to the evidence of the said witness to some extent the learned counsel for the respondents placed reliance on the Hundi marked 'X' and printed at page 157 of the Paper-book. The counsel for the appellants has objected to the reliance sought to be placed on the said document and has emphasised that it was never admitted in evidence. Reference to the document is contained in the evidence of A. W. I, who deposed:-

'THEdocument marked X for purposes of identification also bears the signatures of Shri S. J. Raj.'

No effort was made to get the document admitted in evidence. The provisions of order 13, rule 4 of t Civil Procedure Code may be noticed :- Order 13, rule 4:-

'4.(1) Subject to the provisions of the next following subrule, there shall be endorsed on every document which has been admitted in evidence in the suit the following particulars, namely:- (a) the number and title of the suit, (b) the name of the person producing the document, (c) the date on which it was produced, and (d) a statement of its having been so admitted; and the endorsement shall be signed or initialled by the Judge. (2) Where a document so admitted is an entry in a book. account or record, and a copy thereof has been substituted for the original under the next following rule, the particulars aforesaid shall be endorsed on the copy and the endorsement thereon shall be signed or initialled by the Judge.'

It seems that the counsel for the respondents did not urge admission of the document when produced by A. W.I because the said witness instead of identifying the signatures of Shri S. J. Raj merely stated that it bore his signatures. Shri S. J. Raj was in the list of witnesses and while A. W. I was examined on the 8th of September, 1960, he was examined on the 16th of November, 1960, but the document marked X was never put to him. The court did not, thereforee, admit the document into evidence. We are of the view that even if the document had been admitted in evidence, it would not have made much difference. The document is :-

'TELEGRAMS'RASTRASEVA' Delhi Glass Works Private Limited, Post Box 1532. 10, Daryaganj Delhi. Dated 31st July, 1956. Ref. No- Rs. 1,65,000-0-0. On Demand please pay to Messrs. Asia Udyog Private Limited or order the sum of Rupees One lakh sixty-five thousand only. for value received. For Delhi Glass Works Private LTD., Sd..00 Illegible. Secretary. To M/S Edward Keventer (S) Private, Ltd. Delhi.'

It shows that on the 31st of July, 1956, Messrs. Delhi Glass Works, Private, Limited, executed the same directing the present respondents to pay a sum of Rs. 1,65,000 only to Messrs. Asia Udyog Private, Limited, on account of the value which Messrs. Delhi Glass Works, Private, Limited, had already received. It may be noticed that the respondents did not produce any evidence to the effect that they did not have enough of money with them and could not straight of make any payment in compliance with the alleged arbitration award dated the 6th of April, 1954, and had, thereforee, under certain circumstances to resort to the device of getting the payment being made by Messrs. Asia Udyog, Private, Limited, to Messrs. Delhi Glass Works, Private Limited, incurring the liability of paying that amount subsequently to Messrs. Asia Udyog Private, Limited. We do not, however, want to draw any conclusion from any such omission. The learned counsel for the respondents has drawn our attention to the entry occurring in the 'Journal' of Delhi Glass Works, Private, Limited, which is contained in Exhibit A. 5. The relevant entry is :-

______________________________________________________________________________________ Date Particulars Folio Dr. Cr. 1956 ______________________________________________________________________________________ July 31 * * * * ' Edward Keventer(S) P. Ltd. 36 1,70,000-0-0 ' Compensation- 51 1,70,000-0-0 Being amount of compensation of Rs. 2,00,000.00 to be received from former company and finalised for Rs. 1,70,000 and hence debited to them. ' Asia Udyog Private Ltd. A/C No. 2 12 1,65,000-0-0 ' Edward Keventer(S) Private, 36 1,65,000-0-0 Ltd. Being amount of Hundi on latter drawn by us in favor of and paid to the former on account as per copy of hundi. ______________________________________________________________________________________

There is a debit entry and a cross credit entry both beings. in the sum of Rs. 1,65,000. Those entries are preceded by an entry of Rs. 1,70,000.00 on the debit side, which is again crossed by a similar entry on the credit side. There is reference to the Hundi drawn by Messrs. Delhi Glass Works, Private, Limited, in. favor of Messrs. Asia Udyog Private, Limited. The entry occurs in the Journal of Delhi Glass Works, Private, Limited. It does not prove any payment made by the present respondents i.e. Messrs. Edward Keventer (Successors) Private, Limited. We have been referred to Exhibit A. 9, which again contains. entries from the Ledger of Delhi Glass Works, Private, Limited. The relevant entry pertaining to the account of Messrs. Asia Udyog, Limited, is :-

______________________________________________________________________________________ Date Particulars Folio Debit Credit Balance 1955 ______________________________________________________________________________________ * * * * * * Asia Udyog Limited A/C No. 2 1956 January 56 By purchase. J 3,00,000-0-0 * The second entry is:- July 31 To hundi on Edv. Keventer 1,65,000-0-0 ______________________________________________________________________________________

The foregoing entries pertain to the accounts maintained by Messrs. Delhi Glass Works, Private, Limited, and do not furnish evidence that any amount as paid by the present respondents to Asia Udyog Limited. When confronted with the clear inquiry as to where was the proof of any payment having been made by the respondents, their learned counsel has placed reliance on an entry contained in Exhibit A. 21 under the date 29th of June, 1957, which is :-

______________________________________________________________________________________ Date Particulars Folio Debit Credit Balance ______________________________________________________________________________________ 1957 June 29 * * * * * By hundi drawn by us on them fg. A. U. Private Ltd. Jv. * 1,74,032.05 ______________________________________________________________________________________

The entry noticed above pertains to a Hundi drawn obviously by the respondents on A. U. Private, Limited, and in favor of the same concern. The description lacks clarity. Was a Hundi drawn by Messrs. Edward Keventer (S), Private, Limited, on Messrs. Asia Udyog, Private, Limited, so as to be favoring them Who was to make payment to Messrs. Asia Udyog by honouring the Hundi The Hundi, was the primary evidence of its contents. We find, it has been held back. Not only that the Hundi described in the entry on which reliance is placed, as above, has not been produced, the receipt alleged to have been issued by Messrs. Asia Udyog Private, Limited, on receiving the said Hundi has also been held back. The true circumstances become clear when reference is made to the statements of A. W. 2 and A. W. 3. A. W. 2 at the time of his examination in court on 16th November, 1960, was the Secretary of Asia Udyog Private, Limited. That was the description of the witness appearing in court. He opened his deposition by staling that he had worked as Secretary of Delhi Glass Works from March, 1956, to February, 1957, and that at the time of appearing in court he had no connection with Delhi Glass Works, but had been asked by the Liquidator of Delhi Glass Works and Messrs. Edward Keventer to appear in the case in order to identify the signature of various persons who had been working in Delhi Glass Works. A.W. 2, in the relevant part of his statement, deposed: -

'Ido not know if the said award was made a rule of the court. No such award was filed in court during my time. Rs. 1,70,000 was payable by Messrs. Edward Keventer Ltd.; to Delhi Glass Works Ltd.; by 31st July 1956. Messrs. Edward Keventer Ltd., paid Rs. 1,65,000.00 to Delhi Glass Works by executing a hundi. They wanted more time to pay the balance of Rs. 5000.00. The balance of Rs. 5,000.00 was also paid by hundi by 31st December 1956. Delhi Glass Works Limited realised the amounts of both these hundis. Delhi Glass Works Ltd. realised the amount of hundi for Rs. l,65,000.00 on 31st July 1956 vide voucher copy of which is Ex. A.2. The hundi for Rs. 5000.00 was realised vide voucher copy of which is Ex. A.4. On 31st July 1956 Messrs. Asia Udyog owed some money to Delhi GlassWorks Limited. I do not remember if Delhi Glass Works Limited also owed some money to Asia Udyog on 31st May 1956. I cannot say without seeing the accounts. I do not think that Asia Udyog were financing Delhi Glass Works Ltd. They had mutual accounts. Edward Keventer Ltd. paid Rs. 1,65,000.00 as well as Rs. 5000.00 by hundis. Each Hundi was adjusted by Asia Udyog by ook entries. Again said the adjustment of hundi for Rs. 1,65,000.00 was with Asia Udyog and the hundi for Rs. 5000.00 was with Bharat Development Private Limited. According to the Journal of Delhi Glass Works Ltd. a sum of Rs. 3 lakhs was due from them to Asia Udyog Private Limited on 31st July 1956. According to this 'Journal a sum of Rs. l,65,000.00 was debited to the account of Asia Udyog.'

The Delhi Glass Works had allegedly realised the amount of the Hundi for Rs. 1,65,000.00 vide the voucher Exhibit A.2. The said document contains the following :-

_____________________________________________________________________________________ Dr. Cr. _____________________________________________________________________________________ 'ASIA Udyog Private LTD.. A/C No. 2 Edward Keventer (S) Private LTD. 1,65,000.00 1,65,000.00 Being amt. of hundi on latter drawn by us in. favor of and paid to former on a/c as per copy of the hundi attached. ____________________________________ 1,65,000.00 1,65,000.00' _____________________________________________________________________________________

The voucher is on a printed form of Messrs. Delhi Glass Works, Private, Limited. It shows no payment made by the present respondents. It is strange that in the aforequoted deposition A. W. 2 made the assertion :-

'MESSRS.Edward Keventer Limited paid Rs. 1,65,000.00 to Delhi Glass Works by executing a Hundi.'

That deposition contradicts the entire case set up by the respon- dents by relying on the various entries contained in the alleged accounts. No entry from any account book has been produced! in the course of this litigation pertaining to any Hundi executed directly by Messrs. Edward Keventer (S) Limited for Rs. l,65,000.00 in favor of the Delhi Glass Works and that was A never pleaded by the respondents to this appeal. A. W. 2 continued the deposition, quoted above, staling that Messrs. Edward Keventer (S) Limited, the respondent had executed another Hundi for Rs. 5000.00 to pay the balance. The witness then stated:-

'DELHIGlass Works, Limited, realised the amounts of both these Hundis.'

No such Hundi is referred to by any of the entries produced out of the various account-books.

(6) The learned counsel for the respondents placed great reliance on the statement of A. W. 3, who was Accountant of the respondents. In his examination-in-chief he deposed that he had brought the minutes book containing the record of the meetings of the Board of Directors of the respondents. He referred to a resolution contained in the minutes book, a copy whereof was produced as Exhibit A. W. 3/1, and .deposed that on the basis of the said resolution a voucher was prepared for Rs. 1,70,000.00 in favor of Delhi Glass Works, Limited. According to the said witness:-

'PAYMENTof this amount was made in two Installments, one of Rs. 1,65,000.00 and the other of Rs. 5000.00.'

Describing the payment further, A. W. 3 stated :-

'DELHIGlass Works draw a hundi in favor of Asia Udyog on us. We paid the amount of the hundi to Asia Udyog later.'

The minutes book was found to be such that the counsel cross examining the witness obtained the replies:-

'DIRECtorS'Minutes Book is not page marked. In this register the Minutes of the meetings of the Directors have been pasted and not recorded. The first three leaves of this Minutes Book consist of white ruled paper. The next 13 leaves in this register are light green in colour and of ruled paper. The remaining leaves of the register consist of white plain sheets of paper. The resolutions are pasted only on the first white ruled sheets and the light green coloured ruled sheets and not beyond it. The third white ruled sheet of paper is also the next green ruled sheet of paper in this register * * * * * *'

Whatever might have been the state of the Minutes Book, the evidence of the witness pertaining to the actual payment by the respondents to Messrs. Asia Udyog, Private, Limited, deserves to be examined. He stated:-

'Ahundi for Rs. l,65,000.00 was drawn by Delhi Glass Works in favor of Asia Udyog on Edward Keventer. Payment of that hundi was made by the claimants to Asia Udyog on 29th June 1957. Payment was made with interest. This payment is shown in the copy of the ledger account which is Exhibit A. 16. I do not know if any receipt was given to us on receipt of the amount of the hundi. If a receipt was given, it must be with the voucher and I have not brought the voucher. We drew a hundi for Rs. 1,74,032/5 nP. in favor of Asia Udyog on South Asia Industries Private Ltd. A receipt as given to the claimant company by Asia Udyog Limited on receipt of the Hundi for discharging the debt amounting to Rs. 1,74,032/5 nP. I have not brought that receipt nor the relevant vouchers. We have a running account with South Asia Industries Private Limited. The ledger which I have brought does not contain any entry in regard to the payment of the afore- said amount to South Asia Industries Ltd: That entry must be in the subsequent ledger which I have not brought. Without seeing the record I cannot say if payment of this amount of Hundi was made to South Asia Industries Private Limited. We maintain two accounts in our ledger of Messrs. Asia Udyog Private Limited, one is the General Account and the other is Account No. 2. pertaining to the hundi of Rs. 1,65,000.00. In the General Account also there is an item of Rs. 1,65,000.00 (A copy of the General Account at page 29 be filed and the same be marked as Ex. A-2). Messrs. Asia Udyog Private Limited and Messrs. South Industries Private Limited are both the financiers of Messrs. Edward Keventer Private Limited. I do not know if there are any common Directors of Asia Udyog and South Asia Industries Private Limited, and Delhi Glass Works. I do not know if the Directors of Edward Keventer Private Limited: has any concern with Delhi Glass Works, Asia Udyog or South Asia Industries Companies'.

The respondents in order to furnish proof that they had made the payment to Asia Udyog Private, Limited, should have produced the Hundi which they had executed for the purpose. Neither the hundi nor its copy has been produced. The original hundi could have been called. In the absence of the document, the reference to it contained in Exhibit A-21 can constitute no proof of its contents. There is nothing on the record on the basis of which it can be held that a valid hundi in the amount of Rs. 1,74,032.05 P. was executed by the respondents to this appeal in favor of Messrs Asia Udyog Private, Limited. That apart, the responents have shown no justification for holding back the receipt which was admittedly given to them by Asia Udyog, Limited, on receipt of the Hundi executed in their favor discharging the debt amounting to Rs. 1,74,032.05 P.

(7) It is not possible on the evidence to which we have been referred to hold that in compliance with the alleged arbitration award dated the 6th of April, 1954, the respondents did infact make any payment to Messrs. Delhi Glass Works, Private, Limited. We do not find any justification for the debit and credit cross entries in various accounts, when there is no evidence that the respondents were not in a position by themselves to make a straight payment to Messrs. Delhi Glass Works. Private, Limited.

(8) In the course of acquisition proceedings, at the initial stage, an award had been made by the Land Acquisition Collector determining at Rs, 34,36,660.60 P. including solarium be paid to the respondents. Another Land Acquisition Collector was appointed to make a fresh award. The order appointing him was quashed by the High Court while accepting a writ petition filed under Article 226 of the Constitution of India. In that order it was observed that it was open to the Government to acquire the property in dispute on payment of the aforementioned amount or to de-notify the land and the various entries on which reliance has been placed before us significantly occur under the dates which are subsequent to the judgment of the High Court by which the writ petition was allowed. As noticed earlier, the first entry in Exhibit A-5, quoted in a part of this judgment, occurs under the date 1st July, 1956. The entries in Exhibit A-9 are dated January, 1956, and July 31, 1956. The voucher, copy which, of is Exhibit A-11 bears the date 30th July, 1956. The entry allegedly pertaining to the payment by the respondents as in Exhibit A-21 occurs under the date 29th June, 1957. We are persuaded that the evidence adduced by the respondents cannot be relied upon for concluding that they did in fact make the payment either directly to Messrs. Delhi Glass Works (Private) Limited or to Messrs. Asia Udyog. Private, Limited, so as to invoke it for purposes of obtaining compensation under section 48(2) of the Act.

(9) We may now deal with the contention raised on behalf of the appellants that even if there was any such transaction which placed any liability on the respondents to make any payment to Messrs. Delhi Glass Works, Limited, that could not be made the basis for urging that it was 'the damage suffered' within the meaning of sub-section (2) of Section 48 of the Act. It is emphasised that sub-section (3) of section 48 makes the provisions of part Iii of the Act applicable and as such clause 'fifthly' of section 23 would prevail for consideration while determining the compensation due for the damages suffered in conse- quence of the acquisition proceedings. Section 23(1) and clause 'fifthly' therein are :-

'23.(1) In determining the amount of compensation to be awarded for land acquired under this Act, the Court shall tuLe into consideration- * * * * * * 'fifthly', if, in consequence of the acquisition of the land by the Collector, the person interested is compelled to change his residence or place of business the reasonable expenses (if any) incidental to such change; and'

Clause 'fifthly' would apply where actual acquisition displaces the interested person so as to compel him to change his residence or place of business. Such a situation would arise in case of actual acquisition. In this case there was no actual acquisition. It must, however, be observed that if there was any apprehension that the respondents would be displaced they could have, in case of actual acquisition, if compelled to change to another place of business, claimed compensation on the basis of clause 'fifthly' contained in section 23 of the Act. On is, however, to be determined as to whether the alleged liability arising from the said arbitration award made on 6th April, 1954, could be construed as 'the damage suffered' in consequence of the acquisition proceedings. The counsel appearing on both sides have referred to Express Newspapers Ltd. v. State of Madras, : AIR1961Mad59 . In a very learned judgment, after discussing the law laid down in various cases the Madras High Court came to the conclusion that the state of law in this country was different than that with which the English. decisions were concerned. Even then it was observed:-

'ONthe contrary, we have no doubt that the assessment of compensation would include conjectural claims through uses to which the property could have been put, and income derived there from, but from which the owner was prevented, by the pending acquisition. The principles applicable to compulsory acquisition, such as compensation for special adaptability etc. will apply mutates mutants to a case of withdrawal also. But we would certainly emphasise the note of caution, in applying the principles to the given facts of a situation. The claim must be founded upon realism, upon the hard core of fact, though it may be inevitably conjectural to a certain extent.'

We are persuaded to hold that the claim to compensation for 'damage suffered' within the meaning of section 48(2) must be the direct consequence of the proceedings for acquisition. Even if the respondents had entered into any agreement on 19th Sep- tember, 1953, with Messrs Delhi Glass Works, Private, Limited, and the alleged arbitration award had been made against them, the said award had never been filed in court and no decree had been obtained by Messrs Delhi Glass Works in terms thereof.

(10) The award of the Land Acquisition Collector was made on 30th January, 1956. An application was made by the respondents on the 14th of May, 1957, under section 18 of the Act moving the Land Acquisition Collector for making the reference to the Court. No payment had been made till that time. On the basis of the entry in Exhibit A-21 and the evidence of A. W.-3 the counsel for the respondents submitted that the payment was made by them on the 29th of June, 1957, through a hundi. That was more than a month after the filing of the application under section 18 of the Act. The award having not been made into a decree, there was no compulsion on the respondents to make any payment to Messrs Asia Udyog Private, Limited. Even if there was an arbitration award on the 6th of April, 1964, it was in favor of Messrs Delhi Glass Works, Limited. That concern was to move an application under the Arbitration Act to obtain a decree in terms of the award. If such an application had been moved, it would have been open to the respondents to raise objections to the award. It is very significant that there had been no part-performance of any alleged agreement in terms whereof the Delhi Glass Works, Private, Limited, was to provide accommodation on rent to the respondents. Not for a moment the respondents had ever occupied any property belonging to Delhi Glass Works, Private, Limited. They had no justification for incurring any liability on 29th June, 1957, after preferring the application dated the 14th of May, 1957, under section 18 of the Act praying that a reference be made to the court in respect of the award which had been made by the Collector. There was no justification to make the alleged payment to support their claim before the Additional District Judge. Such a payment cannot be construed as 'the damage suffered by the owner in consequence of the notice or of any proceeding there under'. Moreover, as already held by us, the alleged payment by the respondents to Messrs Delhi Glass Works directly or indirectly had not been proved. We are persuaded to hold that the Additional District Judge was in error in awarding Rs. l,70,000.00 to the respondents and to that extent we set aside the award under appeal. The award by the Additional District Judge is main- ' tained only to the extent that Rs. 6.265.00 will remain payable as compensation to the respondents. The appeal is allowed to the extent indicated above. There will be no order as to costs.


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