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The Collector Vs. Daulat Ram and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtHimachal Pradesh High Court
Decided On
Case NumberCivil Misc. First Appeal No. 27 of 1962
Judge
Reported inAIR1965HP7
ActsLand Acquisition Act, 1894 - Sections 18, 23(1) and 54; ;Code of Civil Procedure (CPC) , 1908 - Section 11
AppellantThe Collector
RespondentDaulat Ram and anr.
Appellant Advocate Jai Chand, Govt. Adv.
Respondent Advocate Sukh Dev, Adv.
DispositionAppeal partly allowed
Cases ReferredBilaspur v. Hans Raj
Excerpt:
- om parkash, j.1. this appeal, by the collector, bilaspur, is directed against an order of the learned additional district judge bilaspur, whereby, on three references, under section 18 of the land acquisition act, the compensation, payable for acquisition of property, was enhanced, by rs. 28,934.75 p.2. land and buildings, situated in bilaspur town, were acquired, in connection with the construction of bhakra reservoir. the major part of the property, acquired, was owned, exclusively, by smt. reshmu, since deceased, and her sons, daulat ram and nauria mal, respondents, and the rest was owned by them, jointly, with other persons. the collector awarded compensation with respect to the acquisition of property. smt. reshmu and daulat ram and nauria mal, respondents, did not accept the award......
Judgment:

Om Parkash, J.

1. This appeal, by the Collector, Bilaspur, is directed against an order of the learned Additional District judge Bilaspur, whereby, on three references, under Section 18 of the Land Acquisition Act, the compensation, payable for acquisition of property, was enhanced, by Rs. 28,934.75 P.

2. Land and buildings, situated in Bilaspur town, were acquired, in connection with the construction of Bhakra Reservoir. The major part of the property, acquired, was owned, exclusively, by Smt. Reshmu, since deceased, and her sons, Daulat Ram and Nauria Mal, respondents, and the rest was owned by them, jointly, with other persons. The Collector awarded compensation with respect to the acquisition of property. Smt. Reshmu and Daulat Ram and Nauria Mal, respondents, did not accept the award. Each of them filed a separate reference, putting forth objections, against the award qua her or his own share in the property, acquired. The three references were forwarded to the Court for determination.

3. The learned Additional District Judge, Bilaspur consolidated the three references, held one trial and disposed of them by one order.

4. The objections taken up, against the award, in the three references, were the same. The objections, which are relevant for the decision of the present appeal, were that the compensation for land and buildings, as assessed by the Collector, was inadequate and that the respondents were carrying on business in the buildings acquired and, that as the business was injuriously affected by reason of the acquisition, they were entitled to get compensation for loss of earnings but the Collector did not award any compensation in this behalf.

5. The objections were controverted, on behalf of the appellant.

6. The learned Additional District Judge held that the compensation, assessed by the Collector, for buildings and land, was low. He enhanced the compensation, by Rs. 22,591.75 P and Rs. 1,843/-, for buildings and land respectively. He, further, held that the respondents were carrying on business in the buildings acquired and that their business had been injuriously affected by reason of the acquisition and they were entitled to get Rs. 4,500/-, as compensation, for loss of earnings.

7. Feeling aggrieved by the enhancement of compensation, the Collector has come up in appeal. Only one appeal has been filed, though there were three separate references. The memorandum of appeal has been stamped with court-fees, chargeable on Rs. 28,934.75 P, the total excess compensation, awarded by the learned Additional District Judge, in the three references.

8. Smt. Reshmu died during the pendency of the appeal. Her name was struck off the record as Daulat Ram and Nauria Mal, her sons, in whose favour, she had executed a will, were already on the record.

9. The office had raised an objection that, as there were three references, three appeals should have been filed and the present appeal was not competent. The learned counsel for the respondents, also, supported this objection and contended that as three appeals were not filed, the present appeal was barred by the principles of res judicata. He placed reliance on Badri Narayan Singh v. Kamdeo Prasad Singh, AIR 1962 SC 338. In my opinion, the present appeal is competent and the authority, relied upon, by the learned counsel for the respondents, is not applicable to the present case. The three separate references were consolidated, by an order dated 27th April, 1959, of the learned Additional District Judge, there, was only one set of issues and one trial. The three references were disposed of by one order. It is clear that the learned Additional District Judge had applied his mind to the determination of the issues, involved in the references, only once, and there was one trial, one finding and one decision. There were not three independent trials. The appellant has impleaded all the parties, who had filed the references, and has paid court-fees on the total excess amount of compensation, awarded in the three references. In the above circumstances, the appellant need not have filed three separate appeals and the principles of res judicata do not bar the hearing of the present appeal. The principle of law that when two proceedings are consolidated and there is one trial, one finding and one decision, there need not be two appeals, and even one appeal is competent, and is not barred res judicata, has been recognized in a Full Bench case of the Lahore High Court, Mt. Lachhmi v. Mst. Bhulli, AIR 1927 Lah 289 (FB). The facts, in that case, were that two widows, Mst. Lachhmi and Mst. Bhulli, were jointly in possession of certain land. Each sued the other for a declaration that she (the plaintiff) was the exclusive/owner of that land and that the other (the defendant) had no right in it of any kind. Both the suits were disposed of by a single judgment which decided that Mst. Bhulli was the owner, but that Mst. Lachhmi was entitled to hold possession of half the land in lieu of maintenance. A separate decree was drawn up in each suit, declaring the rights of the plaintiff, according to that decision. Mst. Lachhmi appealed against one of the decrees only, namely the decree given in the suit in which she was the plaintiff. An objection was raised that as Mst. Lachhmi had not filed an appeal against the decree, in Mst. Bhulli's suit, her appeal was barred by res judicata. This objection was overruled by the Full Bench and it was held that the appeal of Mst. Lachhmi was competent and was not barred by the principles of res judicata. The following passage, from the elaborate and very learned judgment of Tek Chand J., is worth citing:

'Let us see what are the fundamental principles ofres judicata and how do they affect the present case. Ithas already been indicated that the foundation of therule, as understood both by ancient and modern lawyersis that a question must be once fairly and finally triedby a competent Court and after this has been done allfurther litigation about it should be concluded for everbetween the parties. The maxim is, as has been statedabove, that 'no one shall be vexed twice over the samematter'. This, to my mind, presupposes that the issuehas been once fairly and finally tried in a former litigation, which was independent of the proceedings in whichthe same matter is again in dispute. The essence of therule seems to me to be that the two proceedings shouldbe so independent of each other that the trial of onecannot be confused with the trial of the other. Wheretwo suits, having a common issue, are, by consent ofparties or by order of the Court, tried together, the evidence being written in one record and both suits disposed of by a single judgment, can it be said that therehave been two distinct and independent trials? Therebeing but one finding and one judgment, on what principle can the hearing of the appeal in which this findingand this judgment are under consideration be barredmerely because no appeal has been filed in the connectedsuit which was disposed of by that very judgment? Therehas been, in substance as well in form, but one trial andone verdict, and, I venture to think, it will be a travestyof justice to stifle the hearing of the appeal against sucha judgment on the ground that the findings contained init operate as res judicata. In such a case there can beno question of the successful party being 'vexed twice'over the same matter, nor does the hearing of the appealin any way militate against any rule of public policy,which requires that there must be an end of litigation.'Pages 294, 295.

10. AIR 1927 Lah 289 (FB), supra, was considered and approved in Narhari v. Shanker, AIR 1953 SC 419. In this case, from the decree of trial Court, in favour of the plaintiffs, two separate appeals were taken by two sets of the defendants. The appellate Court allowed both the appeals and dismissed the plaintiffs' suit by one Judgment and ordered, a copy of the judgment to be placed on the file of the other connected appeal. Two decrees were prepared. The plaintiffs preferred two appeals to the High Court. One of the appeals was time barred. The High Court dismissed that appeal as barred by limitation and also dismissed the other appeal, on the principles of res judicata. The Hon'ble Supreme Court, after referring to the judgment of Tek Chand J., in AIR 1927 Lah 289 (FB) held that the principles of res judicata were not applicable to the case, and set aside the decision of the High Court

11. The authority, AIR 1962 SC 338, supra, relied upon by the learned counsel for the respondents, is distinguishable. It is true that in that case, both the appeals Nos. 7 and 8 before the High Court, had arisen out of one proceeding before the Election Tribunal and were disposed of by one judgment; but the subject matter of each appeal was different. The difference, between the subject matters of the two appeals, was pointed out, by their Lordships of the Supreme Court, in the following words:

'The subject matter of appeal No. 7 filed by the appellant related to the question of his election being good or bad, in view; of the pleadings raised before the Election Tribunal. It had nothing to do with the question of right of respondent No. 1 to be declared as duly elected candidate. The claim on such a right is to follow the decision of the question in appeal No. 7 in case the appeal was dismissed. If appeal No. 7 was allowed, the question in appeal No. 8 would not arise for consideration. The subject-matter of appeal No. 8 simply did not relate to the validity or otherwise of the election of the appellant. It related to the further action to be taken in case the election of the appellant was bad, on the ground that a Ghatwal holds an office of profit. The decision of the High Court in the two appeals, though stated in one judgment, really amounted to two decisions and not to one decision common to both the appeals.' Page 341.

12. In the instant case, the decision of the learned Additional District Judge, in the three references, which were disposed of by one judgment, does not amount to three decisions but only to one decision, common to all the three references.

13. The instant case falls within the four corners of the principles, laid down in AIR 1953 SC 419 and AIR 1927 Lah 289 (FB). The appeal is, therefore, held to be competent and not barred by the principles of res judicata.

14. On merits of the appeal, the first contentions raised, by the learned counsel for the appellant, was that the learned Additional District Judge erred in awarding: Rs. 4500/-, as compensation for loss of earnings. There is unrebutted, over-whelming evidence, on record, that the respondents were carrying on business, in some of the buildings acquired, vide the statements of Parshotam Dass P.W.1, Jagan Nath PW. 2, Govind Ram PW. 3, Anant Ram PW. 4, Tulsi Ram PW. 5, Kanshi Ram PW. 6, Balkrishan PW. 7, Prem Lal PW. 8, and the respondent. Daulat Ram as PW. 9. The appellant did not adduce any evidence to prove the contrary. By reason of the acquisition of the buildings, the respondents were compelled to shift their business to some other place. It is an admitted fact that the whole of the town of Bilaspur was acquired in connection with the construction of Bhakra Reservoir and there was wholesale displacement of the population. Further, it is not disputed that the number of plots, reserved for shops in the new-township, was much less than the number of shops which existed in the old town. On account of the aforesaid circumstances, the respondents may have to establish their business at some distant place. Obviously, their income, at the new place, will be, for some time, less than what they were earning at the premises, acquired. It will take them some time to establish their business at the new place and to earn as much as they were earning on the eve of the acquisition. It is, thus, clear that the earnings of the respondents were injuriously affected, by reason of the acquisition. They were entitled to get compensation for this injurious affection, under clause fourthly, Section 23 (1), Land Acquisition Act.

15. The next question is what should be the measure of compensation payable to the respondents. It has been laid down by this Court in Collector, Bilaspur v. Hans Raj, AIR 1961 Him Pra 25 that though, it is not possible to lay down any hard and fast rule as to the measure of compensation, to which an oustee businessman may be entitled, yet in a normal case, the ends of justice will be met, if six months' income is awarded as compensation to him for the injurious affection of his business. The case of the respondents does not present any peculiar or special features. The respondents are entitled to get six months' income as compensation for loss of earnings.

16. The learned Additional District Judge has assessed the income of the respondents at Rs. 9000/-, per annum. He has based his finding on the assessment order Ex. PG, made by the Income-tax Officer. The Income-tax Officer had assessed the income at Rs. 9000/-per annum because Daulat Ram, respondent, who had represented the Joint Hindu Family Firm, before him, had failed to render account of the sales and purchases, made. The income of the respondents at Rs. 9000/- was assessed arbitrarily by the Income-tax Officer. That amount did not represent the actual income. It appears from Ex. PG, that the annual income from business, shown in the Return of Income, was Rs. 5500/-. The income of the respondents cannot be assessed at a higher figure. The witnesses of the respondents estimated their daily income from Rs. 15/- to Rs. 20/-. It will not be unreasonable to assess the annual income of the respondents at Rs. 5000/-. The respondents are entitled to get Rs. 2500/- their six months' income--as compensation for loss of earnings.

17. The respondents had not produced any account books about their business. It was urged, on behalf of the appellant, that an adverse inference should be drawn against the respondents, on account of the non-production of account-books. It was explained, on behalf of the respondents, that they had not maintained any account books of their business, and that no question of their production could arise. Be that as it may, the unrebutted and reliable evidence of eight independent witnesses that the respondents carried on business and that their daily income ranged from Rs. 15/-to Rs. 20/- cannot be brushed aside on the sole ground that the respondents had failed, to maintain, or to produce, account-books of their business.

18. The second contention, raised by the learned counsel for the appellant, was that the market value of she buildings and abadi land acquired was assessed at an excessive figure by the learned Additional District Judge. This contention is without any substance. For the determination of the market value of the buildings, the learned Additional District Judge had appointed Shri M.S. Jain, Assistant Engineer) Bilaspur as a Commissioner. Shri M.S. Jain had assessed the market value of the buildings at Rs. 41,261.84 P. Objections were filed against the assessment of the market-value, made by the Commissioner. The learned Additional District Judge held that the Commissioner had not deducted proper depreciation and had also assessed the cost of certain items of construction at higher rates and that there were some errors in calculation, also. He, therefore, reduced the estimate of costs of the building made by the: Commissioner, and assessed their market value at Rs. 36,606.36 P. But the respondents had claimed only Rs. 36,445/- as the value of the buildings. They were, therefore, awarded only that amount.

The objections of the learned counsel for the appellant, against the assessment of the market value of buildings, made by the learned Additional District Judge, were that only 12 1/2 per cent depreciation was deducted on the costs of buildings Nos. 1095 and 1098, though, according to the ages of those buildings, depreciation should have been deducted at a much higher rate, that the award of 25 per cent premium, over the Delhi Schedule of Rates was not justified and that contractor's profit of 10 per cent should have been deducted from the estimate of costs. It is to be noted that the Collector, himself, had deducted depreciation at 12 1/2 per cent on the costs of buildings Nos. 1095 and 1098. So far as the award of 25 per cent premium over the Delhi Schedule of Rates is concerned, it is a matter of common knowledge that building material is not readily available at Bilaspur and has to be brought from outside and the cost of labour is also high. A premium over the Delhi Schedule of Rates has to be given. Good building material was used in the construction of the buildings, acquired. The award of 25 per cent premium was not excessive. The learned Additional District Judge was of the view that seven buildings, acquired, all of stone masonry, could not have been constructed, without the services of a contractor and that, therefore, 10 per cent contractor's profit should not be deducted from the estimate of costs. It has not been shown that the view of the learned Additional District Judge is palpably erroneous.

19. The market value of the buildings acquired, as determined by the learned Additional District Judge, is upheld.

20. So far as the market value of the abadi land is concerned, the learned Additional District Judge has assessed it on the basis of the average of sale transactions, embodied in the mutations, produced by the appellant as well as the respondents. This is one of the recognized methods for determining the market value of the land. The average price of the land, on the basis of sale transactions, worked out to be Rs. 200/- per biswa. There is unrebutted evidence, that the land acquired was situated in a most thickly populated area of the town and near the business centre. Ghumarvin-Bilaspur Road passed below it. In view of the above facts, the learned Additional District Judge did not err in treating the whole of the land as abadi land and assessing its market value at the rate of Rs. 200/- per biswa. The Collector had assessed the market value of the land by dividing it into three sectors and evaluating the land in each sector at different rates. This was not justified. The whole of the land should have been assessed at the same rate, as has been done by the learned Additional District Judge.

21. It was, also, urged, on behalf of the appellant, that the learned Additional District Judge should not have treated 4 biswas of land, which was recorded as Digar, as abadi land. The witnesses of the respondents had stated that there were no rocks on the land and that it was fit for being built upon. The Collector did not lead any evidence to prove that the land was not fit for abadi. The market value of the 4 biswas was rightly assessed at the rates, applicable to abadi land.

22. In view of my finding that the respondents are entitled to get Rs. 2500/- only, as compensation for loss of earnings, and not Rs. 4500/- as awarded by the learned Additional District Judge, the appeal is to be partly allowed. Accordingly, the appeal is partly accepted and the order of the learned Additional District Judge is modified to the extent that the respondents will be entitled to get an excess amount of Rs. 26,934.75 P. only, over and above the compensation, awarded by the Collector. The two respondents, Daulat Ram and Nauria Mal, will share the compensation equally.

23. In the circumstances of the case, the partiesare left to bear their own costs of the appeal.


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