Avadh Behari Rohatgi, J.
(1) Cm No. 279.84 In Fra 540/69. This is an application for amendment of the memorandum of appeal under Order Vi Rule 17 of the Code of Civil Procedure.
(2) These are the facts. The appellant, Sheila Devi, purchased certain land in 1957 bearing Khasra No. 346 measuring 5 bighas 8 bids was in village Kilokari at the rate of Rs. 5 per square yard by sale deed dated 9th May, 1957. Her land was acquired pursuant to the notification under section 4 of the Land Acquisition Act, 1894 (the Act), dated 16th May, 1961. In due course the Land Acquisition Collector made the award (Award No. 1218). He offered compensation to the owner at the rate of Rs. 2,500 per bigha. On a reference under section 18 of the Act the Additional District Judge enhanced the compensation to Rs. 11,000 per bigha. From his order the appellant appeals to this court.
(3) In the memorandum of appeal originally filed on 18-11-1.969 she claimed compensation at the rate of Rs. 20 per square yard. The present application for amendment was made on 19-3-1984, after nearly fifteen years. She says that she may be allowed to amend the memorandum of appeal so as to claim higher compensation, now at the rate of Rs. 60 per sq. yard. The real question is whether the court in its discretion should grant the amendment at this stage.
(4) In Chand Behari vs. Union of India, R.F.A. Nos. 381 and 382 of 1970, decided on 8th March, 1984 (1), we fixed the market price of the land acquired pursuant to a notification dated 13-11-1959 under section 4 of the Act at Rs. 26,000 per bigha in this very village of Kilokari. But the appellant, for her higher claim bases herself on a sale deed dated 5-12-1960 (AW 21(15) by which a built property on land measuring 1845 sq. yards was sold for a total consideration of Rs. 22,000. If this ing to her the cost of construction was only Rs. 22,000. If this is excluded from the sale consideration the price of the land, according to her, works out to Rs. 48 per sq. yard as on 5-12-1960. But the notification under section 4 of the Act in the present case being of 16-5-1961, she further says, that during this interval of six months or so the price rose from Rs. 43 to Rs. 60 per sq. yard. This, according to her is the proper measure of compensation.
(5) She asks for amendment of the memorandum of appeal seaking higher compensation on the allegation that the sale transaction dated 5-12-1960 establishes the market price of the acquired land at Rs. 60 per sq. yard. The appellant next submits that before the Land Acquisition Collector and the District Court she had originally claimed compensation at the rate of Rs. 60 per sq. yard and thereforee she is entitled to the amendment sought by her. We were referred to section 25 of the Act which places statutory limits of maximum and minimum claims allowable. The appellant says that she is not claiming now more than what she claimed before the Collector and the Court.
(6) The appellant strongly relies on the recent decision of the Supreme Court in Harcharan vs . State of Haryana, : AIR1983SC43 . The Supreme Court has said :
'THE best evidence with regard to the evaluation of price of land in a proceeding for ascertainment of compensation for land acquired under the Act is the Award of the Court, subject of course to the comparison of the land areawise, topography wise and usewise.' And :
'THE principal and primary question for ascertaining compensation for land acquired under the Act is the market value of the land on the date of the notification under section 4. The determination of this question depends upon the nature and potentiality of the land. It is the real question in controversy between the parties. To effectively and finally adjudicate this controversy necessary pleadings ought to be available. To highlight this real controversy it may become necessary to amend the pleadings.' (Harcharan pp. 44, 45).
(7) But the question is on what ground the court should allow amendment. No doubt the powers of amendment are very wide. It is a guiding principle of cardinal importance on the question of amendment that, generally speaking, all such amendments ought to be made 'as may be necessary for the purpose of determining the real question in controversy between the parties.' Amendment can be allowed at any stage of the proceedings under Order Vi Rule 17 Civil Procedure Code . In the case of memorandum of appeal the same principle applies in view of Order 41 Rule 3 Civil Procedure Code . Judges are strong advocates of amendments, as the Privy Council has said in Ma Shwe Mya vs. Maung Mo-Hnaung Air 1922 Pc 249(3). But the power of amendment has to be most carefully and jealously exercised in all the circumstances of each individual case and with due regard to its effect upon the position of both of the plaintiff and defendant. (Ardeshir vs. Flora Sasson Air 1928 Pc 208 (4). The Supreme Court also warned : 'Wider the discretion, greater ought of be the care and circumspection on the part of the court' (Ganga Bai vs . Vijay Kumar, : 3SCR882 .
In Haicharan's case the Supreme Court said that if the basis of the amendment sought is the decision of the High Court itself fixing the market value of the land, the amendment ought to be allowed. If the High Court itself has fixed the market value of the land at a higher figure and the owner has claimed less in the memorandum of appeal, the High Court on the basis of its own decisions ought to allow the amendment. Because such a course will give to the owner what would be 'justly due to him' on the basis of the market value of the land determined by the Court itself in its decision. thereforee it appears that the best evidence is the judgment of the Court. On the ground of delay the amendment cannot be refused. The ratio of the Supreme Court decision is encapsulated in these words :
'THE appellant sought amendment relying upon the decisions of the High Court itself and the decisions provided a comparable yardstick for effectively disposing of the real controversy before the High Court.' (P. 45).
(9) On the principle enunciated by the Supreme Court the appellant can be allowed to amend her memorandum of appeal so as to raise her claim from Rs. 20 to Rs. 26 per sq. yard but not beyond. Because this court has evaluated the land at Rs. 26 per sq. yard in Chand Behari vs. Union of India.
(10) But the appellant says that she should be allowed to amend her claim in appeal so as to claim Rs. 60 per sq. yard. In our opinion the Supreme Court judgment does not hold out unlimited prospects for amendment. The main reason is that the High Court judgment was accepted as the best evidence. On this ground amendment was sought by the owner. The High Court refused the amendment. But the Supreme Court allowed amendment on the ground that the decisions ofthe High Court itself provided a 'comparable yardstick' and delay was no good ground or refusing the amendment. They referred to Ganesh Trading Co. vs . Moji Ram, : 2SCR614 .
(11) This case is entirely different. Here reliance is placed on a sale deed for purposes of amendment. The sale deed is of a built property. The property was situated in a highly developed colony such as Friends Colony. It is well known that in a developed colony land is set apart for parks, roads path ways etc. Then there is development expense and so many other things which induce a purchaser to pay a higher price of a built property fully sanctioned in a developed colony such as Friends Colony in this case. The appellant's land does not enjoy the advantages which the built property, the subject matter of sale dated 5-2-1960, enjoyed. The mere fact that it was situated in close proximity to the appellant's land does not entitle her to the price of the land in Friends Colony.
(12) In our opinion, this is no ground for amendment because the built property affords no 'comparable yardstick' for determining the market value of the appellant's land. It is not a safe guide. It will be positively a misleading guide if we accept it as the mirror of market value of the acquired land.
(13) The appellant's evidence before the Additional District Judge shows that her architect determined the price of her land at Rs. 48.00 per sq. yard. In the written arguments submitted to the judge she made a claim only for Rs. 451- per sq. yard. In the memorandum of appeal presented to this court she said that, though the real value of her land was Rs. 41.00 per sq. yard, she was confining her claim to Rs. 20.00 per sq. yard. It appears to us that she was the best judge of the market price of her land and accordingly fixed that as the target of her claim.
(14) She knew the evidentiary value of the sale deed which she herself produced in the district court. Knowing its real worth she was not prepared to claim more than Rs. 20.00 per sq. yard which she thought was the real value of her land. In the words of an eminent authority :
'MARKET value is a quality which does not inhere in the property itself but js a reflection of the state of mind of the public with respect to' such property. Determination of such state of mind is subject to the establishment by the transactions from which such. state of mind can be deduced.'
(15) We do not see how a higher claim for compensation by way of amendment is 'necessary for the purpose of determining the real question in controversy between the parties'. The real question is already before the court. And that question is : What is the claim And how much should the court grant To allow amendment at this stage will be to turn the appeal into a 'gamble' for herself at the Government's expense (Ardeshir vs. Flora Sasson Air 1928 Pc 208 (7). The truth is that Harcharan's case marks the high noon of the powers of amendment given to a court and its exercise by it.
(16) In our opinion the Supreme Court decision which we are bound to follow does not permit us to allow amendment beyond Rs. 26,000.00 per bigha which is the market value of the land as determined by us in Chand Behari's case. But up to Rs. 26,000.00 per bigha we must allow, compelled as we are by Harcharan's. case. If we had not been trammeled by authority we might have refused amendment altogether.
(17) We cannot ignore that there is a vested right in the Government which has accrued to them by lapse of time. It has been the accepted practice for a long time that amendments which would deprive a party of a vested right ought not to be allowed (Weldon vs. Neal (1897) 19 Q.B.D. 394 (8). In exceptional cases an amendment may be allowed even when the effect is to take away from a defendant a legal right which has accrued to him by lapse of time, if the court finds that consideration of lapse of time is outweighed by the special circumstances of the case. (Shanti vs . Home Ins. Co., : 1SCR550 ). The Supreme Court relied upon Charan Das vs. Amir Khan,
A.I.R.1921 Pc 50 (10). In our opinion the present is not an exceptional case where we should allow amendment after 15 years so as to enable the appellant to make a higher claim of compensation.
(18) Then there are admissions of the appellant herself showing that she was valuing her property at prices ranging between Rs. 48.00 and Rs. 20.00 par sq. yard. If we allow amendment in this case we will have to reappraise the evidence in the light of the amended claim. It will open the flood gates of additional evidence, rebuttal evidence, further arguments. So everything will be at large. She will be pleading an entirely new claim now after 15 years. The other side will be prejudiced as the defense which has accrued to them by lapse of time will be taken away if we allow the appellant to introduce a new claim by amendment at this stage. We do not understand the Supreme Court to mean that amendment should be allowed in all cases regardless of its effect on the defendant and regardless of the fact that it causes injury or injustice to the other side.
(19) We are not refusing amendment on the ground of delay as was the case in Harcharan. We are refusing amendment of the claim at the rate of Rs. 60.00 per sq. yard because the 'foundation for the amendment' is not any decision of this court by a sale transaction which, in our opinion, is not a 'comparable yardstick'.
(20) As we understand, in Harcharan's case the 'foundation for the amendment' was 'the various decisions rendered by the same High Court' where 'the High Court was pleased to award compensation at the rate of Rs. 10.00 per sq. yard on the footing that the land had the potentiality of building site'. This was the real ground for seeking 'higher compensation' by way of . amendment of the memorandum of appeal. The Supreme Court held that the High Court was in error in refusing amendment on the ground of delay. They held that 'the decisions of the High. Court itself' provided 'a comparable yardstick for effectively disposing of the real controversy'. The Supreme Court allowed the amendment.
(21) Applying the principle of Harcharan's case to the present appellant we allow her to amend, so as to claim higher compensation up to Rs. 26,000 per bigha as determined by this court but not beyond. The reason is that for claim beyond Rs. 26,000.00 per bigha there is no Award of this court which can be said to be unimpeachable evidence with regard to the price of the land. If there is an award of the court evaluating the market price of the land at the relevant time of section 4 notification it is the best evidence and can furnish the 'foundation' for the amendment because it is 'a comparable yardstick for effectively disposing of the real controversy'. This is what Harcharan decides.
(22) Harcharan is a binding decision on this court. We have followed it. Untrammelled by authority our decision would have been different. There shall be no amendment of the claim after the expiry of limitation. A claimant' can not be a gambler. This, at any rate, is the theory of the Act.
(23) On the whole we find that the sale transaction of 1960 is not a comparable instance. Nor the best evidence. The sale relates to a built property in a developed colony. It is a solitary transaction. 'One sale does not make a market'. (Alfred Jahr Eminent Domain p 210). As one sallow does not make a summer. With the awards of the Court it is different. The awards or judgments of the court are an objective assessment of the market value of the land. The law depends entirely on the concept of 'market value' because there is no other objective test available at present arid objectivity is vital.
(24) 'HOWEVER negligent or careless may have been the first omission and however late the proposed amendment, the amendment should be allowed if it can be made without injustice to the other side. There is no injustice if the other side can be compensated by costs. (Clarapede vs. Commercial Union Association 32 Wr 263(11) per Brett M.R.). One of the classes of cases in which an amendment may work injustice to the opposite party is where it takes away from a party a right accrued to him by lapse of time. P. H. Patil vs . K.S. Patil. : 1SCR595 ).
(25) In our opinion, Harcharan examplifies a case where a right which had accrued to the Government by lapse of time was taken away in the special circumstances of that case. The present is a case where the amendment sought, if allowed in its entirety, will prejudice the rights of the opposite party existing at the date of the proposed amendment The claim of Rs. 60.00 per sq. yard on the basis of a sale transaction has become barred by limitation. The principle of Harcharan's case cannot be extended to all cases of amendment. It must be confined to the facts of that case. As Lord Halsbury has often reminded us :
'EVERY judgment must be read as applicable to the particular facts proved or assumed to be proved, since the generality of the 'expressions which may be found there are not intended to be expositions of the whole law but are governed and qualified by the particular facts of the cases on which such expressions are to be found.
A case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical code, whereas every lawyer must acknowledge that the law is not always logical at all.'
(QUINNvs. Leathem (1901) Ac 496 (See Halsbury Laws of England, 4th ed. Vol. 26 p. 293. See also 63 Lcr 461).
(26) Harcharan must thereforee be understood as a case where the best evidence was available in the shape of awards of that very court. 'To promote uniform standards' and 'to prevent very obvious failures of justice' the Supreme Court interfered and allowed the amendment.
(27) Since the filing of the appeal this claim of Rs. 60.00 per sq. yard has become barred by limitation. The amendment must, thereforee, be refused. To allow it would be to cause the other party an injury which cannot be compensated in costs by depriving him of a good defense to the claim. The ultimate test thereforee still remains the same : Can the amendment be allowed without injustice to the other side This is what the Supreme Court has said in P. H. Patil vs. K. S. Patil (supra). (See also H. Girdharidas vs. V. Pillai, : 1SCR291 ).
(28) The dominant note of Harcharan seems to be uniformity in the decisions of the court. Uniformity is an ideal. Is it attainable If the expropriated owner of land has claimed less before the Collector he cannot be awarded more. whatever may be the value fixed by the Court in the decisions. Section 25 enacts this. In cases that came before us of this village we found that though we fixed the value of the land at Rs. 26,000.00 per bigha the owner could not even by amendment ask for the same price because he had claimed, say, only Rs. 15.00 per sq. yard before the Collector. We could not permit him to amend the claim so as to bring it in conformity with our judgment. In the framework of the statute uniformity is not attainable. Each claimant claims compensation according to his own estimate of the market value of the property compulsorily acquired by the State. It has been well said : 'A price, is a fact and a value is an estimate of what the pries ought to be'. (Hadley) Estimate is a matter of opinion. In matters of opinion there is bound to be a wide diversity. Hence diverse claims.
(29) We venture to think that amendment of the claim is not contemplated by the statute. In answer to a notice of section 9 he owner files the claim before the Collector. Under section 11 the Collector makes the award. Under section 18 the owner can make reference to the court if he does not accept the award. Under section 54 appeal lies to the High Court from the decision of the district court. The foundation for compensation is laid when the owner files the claim before the Collector. Neither the district court nor the High Court can award more than the claim made before the Collector. Section 25 says this. It defines the limits of compensation. The expressions 'amount claimed' and 'amount awarded' in section 25 show this. Whatever may be the decisions of the court the owner cannot be allowed more than what he claimed before the Collector. He can reduce and restrict it before the district court in reference or High Court in appeal. But he cannot ask for more. Every time a decision is given by the court he cannot amend the claim and ask for more. Decisions will go on coming. But he cannot be allowed to go on amending. Suppose he amends on the basis of the High Court decision given in some other case, as happened in Harcharan. On a further appeal to the Supreme Court under section 54 compensation is further enhanced. The owner will ask for amendment of the claim a second time, this time on the strength of the Supreme Court decision. On the reasoning of Harcharan it must be allowed.
(30) Each time a judgment is pronounced enhancing compensation the owner will ask for higher compensation by amending the claim on the strength of the High Court and Supreme Court decisions. It will then cease to be a genius claim. It will become a 'gamble' at Government's expense.
(31) Even within the limits of the original claim before the Collector the claim before the High Court in appeal cannot be amended because the time for filing the appeal has expired. In the environment of 1894 when the Act .was passed the framers did not contemplate that claim will be amended from time to time and the courts will grant it for the sake of uniformity. The scheme and structure of the Act do not permit amendment. The Act, both in spirit and intendment, is against the theory of amendment of claim on the basis of High Court decisions. The theory of amendment cannot be accepted with any logical consistency. (See Ambalal vs. Additional Spl. L. A. Officer, Ahmedabad, : AIR1974SC591 ); Dilawarsab vs. Spl. L. A. Officer, : AIR1974SC2333 ; Gobardhan Mahto vs. State of Biha, : AIR1979SC1246 ; Gokul Krishna vs. Secy. of State, Air 1932 Pat. 134 (138) (18) (DB); Spl. L. A. Officer vs. Ovamma, Air 1973 Mys. 175 (177) (19); S. M. Singh vs. Punjabi University, ; Yogendranath Singh vs. Collector, Seoni, : 2SCR757 ; Egappa Gounder vs. The Special Tehsildar, Madras (1970) Vol. 83 Mad. L. W. 561 (566) (22) (DB); and Khorshed Shapoor vs. Astt. Collector Estate Duty, : 122ITR21(SC) .
(32) Such residual hopes of amendment as the owner may entertain are plainly dashed to the ground by section 25 of the Act. Die is cast once. Once cast it is cast for ever. Until the expiry of limitation the amendment can be allowed if it is within the limits of section 25. But not afterwords. We have expressed this view for whatever if is worth in face of Harcharan. Our only hope is that wiser heads may some day consider this aspect if ever an occasion arises.
(33) In short we are refusing amendment sought because we cannot allow it without injustice to the other side. And that injustice we cannot compensate by costs.
(34) For these reasons we allow the appellant to amend her memorandum of appeal so as to claim compensation at the rate of Rs. 26,000 per bigha, as is the market price determined by as in Chand Behari's case, and no more. She may submit an amended memorandum of appeal and pay additional court fee within one week. The case is adjourned to 25th April, 1984. To be listed in 'after notice misc. matter?'.