Partly allowed

Collector Land Acquisition v. Ashok Kumar

Himachal Pradesh HC27 Sept 2023RFA/268/2014

Case brief

AI extract

What is this about?

The High Court enhanced land compensation from Rs. 9.5 lakh to Rs. 12.35 lakh per bigha in multiple land reference appeals. Using Order 41 Rule 33 CPC, the Court applied statutory increases to sale deeds executed in 2000-2001, specifically upholding their relevance despite being prejudiced to the acquisition notification date.

What did the court decide?

Compensation enhanced from Rs. 9,50,000 to Rs. 12,35,000 per bigha with all statutory benefits including interest and solatium.

Collector Land Acquisition Vs Ashok Kumar — Land Acquisition | Himachal Pradesh HC (2023)

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.

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RFA No.268 of 2014 a/w Cross Objections No.97 of 2016, RFA Nos.190 to 195, 222 & 231 of 2014, RFA No.267 of 2014 & C.O. No.69 of 2018, RFA No.390 of 2014 & C.O. No.98 of 2016, RFA Nos.112, 113 of 2015, 203 of 2017.

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Reserved on: 20.09.2023 Decided on: 27^th September, 2023

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RFA No.268 of 2014 & C.O. No.97 of 2016

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Land Acquisition Collector & Others ...Appellants

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Versus Ashok Kumar & Others ...Respondents

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2. RFA No.190 of 2014

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Land Acquisition Collector ...Appellant

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Versus

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Surjeet Kumar ...Respondents

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3. RFA No.191 of 2014

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Land Acquisition Collector ...Appellant

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Versus

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Shri Balwant Kumar ...Respondent

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4. RFA No.192 of 2014

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Executive Engineer HPPWD And Another ...Appellants Versus Shri Nathu Ram ...Respondent

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5. RFA No.193 of 2014
The Executive Engineer HPPWD & Another	...Appellants
Versus Shri Prem Lal	…Respondents
6. RFA No.194 of 2014
The Executive Engineer HPPWD & Another Versus	...Appellants
Satya Devi	...Respondent
7. RFA No.195 of 2014
Land Acquisition Collector & Another Versus	...Appellants
Dinesh Kumar & Another	...Respondents
8. RFA No.222 of 2014
Collector Land Acquisition & Another Versus	...Appellants
Paramjeet & Others	...Respondents
9. RFA No.231 of 2014
Land Acquisition Collector Versus	…Appellant
Nand Lal	...Respondent

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10. RFA No.267 of 2014 & C.O. No.69 of 2018 Collector Land Acquisition & Another ...Appellant Versus Deep Raj ...Respondent 11. RFA No.390 of 2014 & C.O. No.98 of 2016 Collector Land Acquisition & Another ...Appellant Versus Som Kumar ...Respondent 12. RFA No.112 of 2015 Collector Land Acquisition ….Appellant Versus Prem Lal (deceased) Through LRs and Ors ...Respondents 13. RFA No.113 of 2015 Land Acquisition Collector ...Appellant. Versus Thakur Dass (since Deceased) Through LRs ...Respondents 14. RFA No.203 of 2017 Collector Land Acquisition ...Appellant Versus Prem Singh(since Deceased) Through LRs ...Respondents

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Coram

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The Hon’ble Mr. Justice Virender Singh, Judge. Whether approved for reporting?¹ Yes.

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For the appellants:	Mr. Tejasvi Sharma, Additional Advocate General.
For the respondents:	Mr. Ajay Sharma, Senior Advocate assisted by Ms.
	Kavita Kajal, Advocate for respondents No.1 to 3 in RFA
	No.268 of 2014, for
	respondent in RFA Nos.267 and 390 of 2014.
	Mr. Maan Singh, Advocate,
	for respondents, in RFA
	Nos.190, 191, 194, 195 of 2014 and 113 of 2015.
	Mr. Praveen Thakur,
	Advocate for respondents
	No.1(a) to 1(c), 2 and 3, in RFA No.112 of 2015.
	Mr. Amit Singh Chandel, Advocate for respondents in
	RFA Nos.192 and 193 of 2014.
	Mr. Rajiv Rai, Advocate for respondents in RFA Nos.231 and 222

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Mr. Sunny Dhatwalia, Advocate, for respondents,
in RFA No.203 of 2017.

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Virender Singh, Judge.

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The above titled appeals and cross-objections,

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are being disposed of by a common judgment, as all these

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1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes.

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appeals, as well as, the cross-objections, have been preferred by the parties, against the award dated 12.11.2013, passed by the Court of learned District Judge, Bilaspur, District Bilaspur, H.P. (hereinafter referred to as the ‘learned trial Court).

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Vide award dated 12.11.2013, the learned trial Court had decided a batch of 14 land reference petitions, lead case, whereof was Land Reference Petition No.251 of 2008, titled as Dinesh Kumar & Another versus Land Acquisition Collector & Another, by granting the following relief, to the petitioners, in the land reference petitions:-

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“35. In view of my findings on issue No 1 above all the reference petitions stand allowed with cost. The petitioners are entitled to enhanced compensation at the uniform rate of Rs 9,50,000/- per bigha qua the land acquired, irrespective of its nature and quality. Besides, the petitioners are also entitled to solatium at the rate of 30% on the market value of the land/structure assessed hereinabove under Section 23(2) of the Act. They are also entitled to the amount at the rate of 12% per annum on the enhanced compensation under Section 23(1A) of the Act wet. 13.7.2005, the date of notification will the date of award. They are further entitled to interest on the enhanced compensation at the rate of 9% per annum from the date of taking possession or the date of award whichever is earlier for a period of one year and thereafter at the rate of 15% per annum till the date of payment deposit of the amount of compensation as assessed above It is; however, ordered that the amount of compensation it already paid. shall be adjusted towards the enhanced amount of compensation Memo of costs be prepared. The original award

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be placed on land reference petition No 251 of 2008 titled as Dinesh Kumar Vs LAC and an authenticated copy of the same be placed on each of the consolidated petitions. The file after due completion be consigned to the record room.”

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For the sake of convenience, the parties to the present lis are hereinafter referred to, in the same manner, as were, referred to, by the learned trial Court.

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Brief facts, leadings to the filing of the present appeals, as well as, the cross-objections, before this Court, may be summed up, as under:-

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4.1. The State of Himachal Pradesh has issued a Notification under Section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as the Act’), on 13.07.2005, for acquisition of land for widening of the road known as ‘Ali Khad Kandraur Road’ in village Mehan, Pargna and Tehsil Sadar, District Bilaspur (hereinafter referred to as the ‘suit land’).

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4.2. As per mandate of the Act, the notification under Section 4 of the Act, was given wide publicity, by publishing the same in the Himachal Pradesh Rajpatra on 16.7.2005 and in the vernacular newspapers on 10.7.2005, and 13.07.2005. Other codal formalities, as per Sections 6 and 7 of the Act, were completed and ultimately, award No.7 dated 8.5.2007, was passed. The details of the

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compensation, as awarded by the Land Acquisition

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Collector, is reproduced, as under:-

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Sr. No.	Ref. Pet. No.	Parties name	Description of land acquired	Compens ation for land	Compe nsation for fruit trees	Compe nsation for non- fruit trees	Compe nsation for structu re	Total payable compensat ion
1.	251/08	Dinesh Kumar etc. Vs. LAC etc.	Khasra No.26/1, 48/1	24,706/-	–	–	–	37,429/-
2.	251/08	Paramjeet etc. v. LAC etc.	Khasra No.41/1	11,063/-	–	–	–	16,760/-
3.	247/08	Surjit Kumar v. LAC etc.	Khasra No.96/51/1	7,375/-	–	–	64068/ -	1,09,599/-
4.	248/08	Prem Lal etc. v. LAC	Khasra No.30/1	1,500/-	–	–	–	2,273/-
5.	249/08	Thakur Dass etc. V. LAC etc.	Khasra No.16/1, 27/1, 37/1, 37/2, 15/1, 41/1	25,813/- 12,563/-	651/-	–	–	39092 + 19033
6.	250/08	Nand Lal vs. LAC	Khasra No.14/1	7,375/-	–	–	–	11,174/-
7.	252/08	Balwant Kumar v. LAC etc.	Khasra No. 20/1, 22/1. 49/1, 50/1	74,857/-	505/-	–	–	1,14,175/-
8.	253/08	Nathu Ram v. LAC etc.	Khasra No.18/1, 89/19/1, 102/28/1	66,375/-	317/-	–	–	1,01,038/-
9.	254/08	Satya Devi v. LAC etc.	Khasra No.97/51/1	7,375/-	–	–	–	11,174/-
10.	255/08	Prem Singh v. LAC etc.	Khasra No.15/1/1, 16/1/1	14,750/-	651/-	–	16405/ -	48,285/-
11.	256/08	Prem Lal v. LAC etc.	Khasra No.53/1	7,375/-	–	–	–	11,174/-
12.	257/08	Deep Ram v. LAC etc.	Khasra No.20/1, 22/1, 49/1, 50/1	74,857	505/-	–	–	1,74,174/-
13.	258/08	Som Kumar v. LAC etc.	Khasra No.10/1	11,084/-	–	–	–	17,372/-
14.	259/08	Ashok Kumar etc. v. LAC etc.	Khasra No.10/1	44,250/-	–	–	–	67,039/-

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4.3. The persons, whose land was acquired, vide award No.7, dated 8.5.2007, were not satisfied with the

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amount of compensation, awarded to them, as such, they had preferred the reference petitions under Section 18 of the Act, before, the Land Acquisition Collector, who had forwarded the same to the learned trial Court, for adjudication, as per law.

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For the sake of convenience, the factual position, as mentioned, in the Reference Petition No.251 of 2008, titled as Dinesh Kumar & Another versus Land Acquisition Collector, has been taken, as, the learned trial Court has consolidated the reference petition Nos.247, 248, 249, 250, 252, 253, 254, 255, 256, 257, 258, 259 of 2008 and 127 of 2008, with Land Reference Petition No.251 of 2008, vide orders dated 24.07.2010 and 8.11.2010.

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As per the petitioners, in land reference petition No.251 of 2008, the amount of compensation is inadequate, as, the Land Acquisition Collector, has not assessed the market value of the land properly.

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According to the petitioners, the value of the fruit/non-fruit bearing trees has not been given to them and this fact has not been considered that they had constructed the retaining wall to protect their house, crops and trees, by spending a sum of Rs.5,00,000/-.

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As per the petitioners, the commercial potentiality of the acquired land has not been considered by the Land Acquisition Collector and this fact has not been considered that near the acquired land, there are lot of commercial activities.

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Elaborating this stand, it has been pleaded that with the construction of Ali-Khad Bridge, the road namely ‘Bamta-Ali Khad-Kandraur’ has now become main highway and number of persons have purchased the land in the locality for construction of houses and business centers. According to them, the value of the acquired land was not less than Rs.20,00,000/-.

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On the basis of above facts, a prayer has been made to enhance the compensation, which has been awarded to them, by the Land Acquisition Collector, in these cases.

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When put to notice, the respondents have filed the reply, in which the factual position, with regard to the acquisition of the land, has not been disputed, but, according to them, the adequate compensation has been awarded, after considering all the material aspects.

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Petitioners had filed the rejoinder, denying the factual position, by virtue of which, the land reference petitions have been contested.

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Thus, a prayer has been made to reject the reference petitions.

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From the pleadings of the parties, the following issues were framed by the learned trial Court, in all the petitions, vide order dated 18.06.2010:-

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1. Whether the compensation awarded by the Collector is in-adequate, if so what is the just and reasonable compensation? OPP

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2. Relief.

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Thereafter, the parties to the lis were directed to adduce evidence. After the closure of evidence, upon hearing the learned counsel appearing for the parties, the learned trial Court has answered those references, by awarding the relief, as referred to above.

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Feeling aggrieved from the said award, the Land Acquisition Collector, has preferred the above mentioned Regular First Appeals, before this Court, on the grounds that the evidence, so adduced by the respondents, has not properly been appreciated by the learned trial Court; the market value, as assessed, by the learned trial Court, is on the higher side; while doing so, the learned trial Court, has

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wrongly relied upon the sale transaction, which pertains to small piece of land, as such, the award is stated to be passed on wrong facts; and, the document Ex. PW-5/A dated 20.06.2001, has wrongly been considered by the learned trial Court, as exemplar sale deed, whereas, vide the said sale deed, only two biswas of land was sold.

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The award has also been assailed on the grounds that the said land has been purchased for commercial/ residential purpose and while relying upon the sale deed Ex.PW-5/A, according to the respondents, the learned trial Court has ignored the settled proposition of law that the small piece of land could not be made basis for the assessment of the value of the large chunk of the land.

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The findings have further been assailed on the ground that the learned trial Court, while awarding the compensation, at the uniform rate of Rs.9,50,000/- per bigha, by placing reliance upon sale deed Ex.PW-5/A, has not deducted the amount, as per the decision of Hon’ble apex Court in Kasturi versus State of Haryana, 2003 (1) SCC 354 ,

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On the basis of the above facts, a prayer has been made to set aside the award, passed by learned trial Court, by allowing the appeals.

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The petitioners, in Land Reference Nos.267, 268 and 390 of 2014, have also filed the cross-objections, before this Court with the prayer that the learned trial Court has assessed the market value of the acquired land, prevailing, at the time of issuance of Notification, under Section 4 of the Act, on the lower side. The learned trial Court has not properly considered the document Ex.PB, as, this document depicts that five years average of sale price of Village Mehan, is Rs.55,80,000/- per bigha.

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Similarly, the documents Ex.PW-1/A and Ex.PW-1/B, according to the cross-objectors, depict the fact that the Collector Bilaspur, as per the provisions of Land Record Manual, calculated and notified the value of the land, particularly, ‘Andrali Abal’ of village Mehan, as Rs.28,80,000/- per bigha.

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The learned trial Court has ignored those documents and assessed the compensation as Rs.9,50,000/per bigha. While deciding issue No.1, according to the cross-objectors, the learned trial Court has wrongly assessed that the market value of the land is Rs.9,50,000/-, per bigha, as the exemplar sale deed pertaining to the year 2001, whereas, the Notification under Section 4 of the Act, was issued in the year 2005.

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It is the further case of the objectors that the learned trial Court has wrongly assessed the market value of the land, on the basis of the document Ex.PW-8/A, which is sale deed. As per the sale deed, on 19.1.2000, land was sold in Village Mehan, @ Rs. 90,000/-, whereas, the escalation of the price from the year 2000 to 2005, has not been considered. Heavily relying upon the average value assessed vide document Ex.PW-1/B, a prayer has been made to assess the value of the land, as Rs.55,80,000/- per bigha. According to the cross-objectors, the value of the septic tank and water tank has not been given.

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Thus, a prayer has been made to enhance the amount of compensation, as awarded by the learned trial Court.

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In order to decide the present appeals, as well as, the cross-objections, in an effective manner, it would be just and appropriate for this Court to discuss the evidence, so adduced by the parties to the lis, before the learned trial Court.

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After framing the issues, the petitioners have examined Jagdish Kumar, Patwari, as PW-1, who has deposed that the approved value of the land in village Mehan, by the District Collector, is Ex.PW-1/A. He has

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proved the market value of the land by the Land Acquisition Collector as Ex.PW-1/B.

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In the cross-examination, this witness has deposed that on 3.5.2007, District Collector, has assessed the market value of the land in Village Kiara as Ex.RX. He has also admitted that on the basis of the said average value, the value of the acquired land has been assessed. 28. PW-2, Deep Raj, has deposed, as per the stand taken in the reference petition. According to him, total three bigha and two biswa of land was acquired. He has deposed that one year average price of the land is Rs.28,80,000/- and average price of five years is Rs.55,80,000/-, whereas, District Collector has given the value of the land as Rs.28,80,000/- per bigha. Later on, in the adjoining village Kiara, five years average price of the land has been assessed as Rs.1,47,000/- per bigha. At the relevant time, value of the land in their village was Rs.3,00,000/- per biswa. The said fact has not been considered by the Land Acquisition Collector and he has wrongly assessed the value of the land, on the basis of the average value pertaining to Village Kiara, which, according to this witness, was situated at a considerable distance from road.

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This witness has also deposed that his remaining land requires retaining wall, for which, he has to spent Rs.5,81,000/-. There were 150 fruit bearing trees and 50 other trees over the land and the value of the said trees, is stated to be Rs.3,00,000/-. From those fruit bearing trees, he used to fetch Rs. 40,000/- per month as income, whereas, the Land Acquisition Collector, has simply given Rs.1,010/- as compensation. He has claimed the value of the land as Rs.3,00,000/- per biswa and compensation for the retaining wall and trees as Rs.5,81,000/-. He has put forward the commercial potentiality of the acquired land.

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This witness has admitted in the crossexamination that the boundary of village Kiara is adjoining to their land, but again stated that said village is situated at a distance from the road. This witness has further deposed that prior to the construction of Bridge over Ali-Khad, there was no connectivity with the town. Volunteered that they used to go to town in motorboat/boats.

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PW-3, Gian Chand, has deposed that being a retired Deputy Ranger, he has assessed the estimated value of the trees vide document Ex.PW-3/A. He has assessed the value of the trees as Rs.25,174/-. When, he has assessed the value, he was in service and he has not been directed

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by his superiors to assess the value of the trees. He has assessed the value at the instance of petitioner Som Kumar. However, he could not disclose about the boundaries of his land. At the time of assessment, no person from the Revenue Department was there. He has admitted that the wood of Buel and Draik is being used as fuel wood.

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PW-4, Dinesh Kumar has clicked the photographs of land of Deep Raj, as Ex.P-1 to Ex.-6 and the photographs of the land of Som Kumar, as Ex.P-7 and Ex. P-8.

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PW-5, Anant Ram has deposed that one Prabhu Ram has sold two biswa of land for a sum of Rs.95,000/-, in Village Mehan. The subject matter of the land purchased in the name of his sons is abutting to the acquired land. He has proved the copy of the sale deed Ex.PW-5/A.

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PW-6, Anup Kumar is a registered architect. On 3.3.2010, he has assessed the value of the houses of petitioners Dinesh Kumar and Sudesh Kumar. He has assessed the value of the houses as Rs.4,36,000/- and value of the wall as Rs.10,260/-, vide report Ex.PW-6/A and building plan Ex.PW-6/B. Said house was abutting to National Highway. On 22.6.2007, this witness has prepared the valuation of the retaining wall of Balwant Kumar, resident of Mehan. The construction of the said wall was

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required to prevent the soil erosion and to prevent the entry of the wild animals. Estimate of the same has been prepared as Rs.1,34,000/-. The said estimate was prepared, as per the Himachal Pradesh Schedule of Rates, 1999. He has visited the spot at the instance of Dinesh Kumar, Sudesh Kumar and Balwant Kumar. Prior to visiting the spot, he has not informed the authorities of PWD, nor Patwari was present there. However, on the spot Nathu Ram and Ranjeet Singh were found present. The said house was 10-15 years old.

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PW-7 Ram Kumar, Senior Executive Engineer, I & PH, has deposed that for the protection of remaining land of the petitioners, retaining wall is required. He has prepared the estimate of the said retaining wall as Rs.5,81,000/- vide document Ex.PW-7/A and as per site plan Ex.PW-7.B. Lastly, he has deposed that in case, the retaining wall is not constructed, it will cause damage to the remaining land of the petitioner.

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This witness has admitted that he is a summoned witness, but, he could not bring the said summon with him. He is whole time Government servant. Ex.PW-7/A and Ex.PW-7/B were prepared on 10.1.2010, however, no permission was sought from the Department

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for preparing the same. Petitioner Deep Chand is his cousin. They are from the same village.

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PW-8 R.R. Chauhan, has proved the sale deed Ex.PW-8/A, by virtue of which, Nathu Ram had sold two biswa of land to Mahender Singh, for a sum of Rs.90,000/-. The amount of sale consideration has not been exchanged in the presence of this witness. Even, at the time of handing over the possession, he was not there.

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To rebut this evidence, respondents have examined RW-1, Ramesh Singh, Assistant Engineer. He has mentioned the distance of Mehan village from Bilaspur, as 5 kilometers. As per him, no school is there. No retaining wall was there at the spot. He has produced the sale deed Ex.RA. He has admitted that the Ali-Khad bridge has been constructed prior to the acquisition of the land. In the town, there is ITI, Industrial area at the distance of 5 kilometers and one Hospital is also constructed, but, again stated that the same was constructed after acquisition of the land. One Engineering College is also adjoining to the village. From the road, acquired land is situated at the distance of about 5 kilometer.

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This witness has admitted that after construction of Ali-Khad bridge, number of new constructions have come

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up. He has admitted that vide document Ex.PW-1/A, the Collector has approved the market value of the acquired land, which was reduced, later on, by the document Ex.RX. There is no document in the record, upon which, the market price Ex.PW-1/A has been reduced vide document Ex.RX.

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So far as the documentary evidence is concerned, Ex.PW-1, is letter dated 11.1.2007, issued by District Collector Bilaspur to Land Acquisition Collector regarding the approval of the market value of the land, Ex.PW-1/B is the letter of land Acquisition Collector, which was submitted to the District Collector, Bilaspur, for approval of the market value of the acquired land along with it five year average of the land situated in village Mehan. As well as one year average price, is annexed. Ex.PW-3/A, is the assessment of the trees by Deputy Ranger, Gian Chand Dhiman. Ex.PW-5/A is the sale deed dated 20.06.2001. Ex.PW-6/A, is the report of Anup Kumar Shandilya, Architect and Engineer pertaining to the house of petitioners Dinesh Kumar and Sudesh Kumar, PW-6/B, is the drawing, PW-6/C is the abstract of estimate cost of house of Balwant Kumar. Ex. PW-6/D, is the drawing showing the existing retaining wall to protect the house of Shri Balwant Kumar, Ex.PW-6/E is the details of the measurement. Ex.PW-7/A is the abstract

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of cost of the retaining wall/protection wall along with road near the house of Shri D.R. Sharma. Ex.PW-7/B, is the spot map of retaining wall. Ex.P-1 to Ex.P-8 are the photographs. Ex.PX is the Jamabandi for the year 2000-2001. Ex.PW-8/A is the copy of the sale deed dated 19.1.2000. Ex.RX is the approved market value of the land situated in Mauza Kiara dated 3.5.2007. Ex.RA is the copy of the sale deed dated 16.5.2002.

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This is the entire evidence adduced by the parties.

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Learned trial Court, in the present case, has assessed the market value of the acquired land as Rs.9,50,000/-, per bigha, irrespective of the nature and quality of the same, along with statutory interest.

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Perusal of the award impugned herein shows that the learned trial Court has assessed the said value, on the basis the sale dded Ex.PW-5/A. It is no longer res integra that in order to assess the market value of the acquired land, best evidence is the genuine and bonafide sale transaction, in respect of the acquired land or in its absence, the bonafide sale transaction proximate to the point of acquisition of the land, situated in the neighborhood of the acquired land, possessing similar value and utility.

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While assessing the market value, the same should be assessed by keeping in view the cardinal principle that the imagination should be eschewed and mechanical assessment of the evidence should be avoided. While doing so, the price, that the willing vendor might reasonably expect to receive from the willing purchaser, must be taken into consideration, as the object of the assessment is to arrive at a reasonable and adequate market value of the acquired land.

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In these cases, parties to the reference petition had relied upon the following sale deeds, description of which is, as under:-

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Sl. No.	Document Exhibit	Date of execution of sale deed	Land sold	Mauza/ Village	Amount of sale consideration
1.	Ex.PW-5/A	20.06.2001	2 biswas	Mauza Mehan	95,000/-
2.	Ex.PW8/A	19.1.2000	2 biswa	Mauza Mehan	90,000/-
3.	Ex.RA	16.5.2002	1 biswa	village Kiara	2,000/-

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The notification, under Section 4 of the Act, was issued, in these cases, on 13.07.2005. The sale deeds, which were of village Mehan, were executed in the year 2000 and 2001. In such situation, it is for this Court to see, as to which sale deed can be said to be the exemplar sale deed. Admittedly, the sale deed, Ex.RA, is of different

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village and the same, cannot be considered as exemplar sale deed. Out of two sale deeds, Ex.PW-5/A and Ex.PW-8/A, the sale deed Ex.PW-5/A, was executed on 20.6.2001, as such, the same has rightly been considered by the learned trial Court as exemplar sale deed.

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The learned trial Court has rightly relied upon this document to be the exemplar sale deed, but, considering the fact that the notification under Section 4 of the Act was issued on 13.7.2005, about four and half years from the date of execution, then, some addition is to be made in the value, as mentioned in the sale deed.

¶115

Certainly, in the span of about four years, the value of the Land, in Village Mehan would have been increased. As such, some amount is required to be added, in the value of the land, while assessing the market value of the land acquired on the basis of Ex.PW-5/A.

¶116

In the peculiar facts and circumstances of the case, it would be just and appropriate for this Court to add 30% in the value of one biswa of land. According to the exemplar sale deed, value of one biswa of land comes to Rs.61750/- (47,500/- + Rs.14250/-). Thus, the market value of the acquired land comes to Rs.61,750x20= Rs.12,35,000/-, per bigha.

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Considering the extent of land acquired, in these cases, there is no need to deduct the value, out of the exemplar sale deed Ex.PW-5/A. Land has only been acquired for widening of the road. Hence, the decision of Hon’ble Supreme Court in Kasturi ’s case supra, is not applicable, in the present cases.

¶119

Cross-objections, have only been filed in RFA Nos.267, 268 and 390 of 2014, as such, by exercising the powers, under Order 41 Rule 33 CPC, the market value of the acquired land, in all the RFAs, is liable to be enhanced, as no new evidence is required for enhancing the amount in all the 14 cases.

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The Hon’ble apex Court in Pralhad and Others versus State of Maharashtra and Another, (2010) 10 Supreme Court Cases, 458, has held that the appellate Court is empowered to pass any decree or make any order, which ought to have been passed or made. The relevant paragraphs 18 to 20 of the judgment are reproduced, as under:-

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“18. The provision of Order 41 Rule 33 CPC is clearly an enabling provision, whereby the appellate court is empowered to pass any decree or make any order which ought to have been passed or made, and to pass or make such further or other decree or order as the case may require. Therefore, the power is very wide and in this enabling provision, the crucial words are that the appellate court is empowered to pass any

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order which to have been made as the case may require. The expression "order ought to have been made" this obviously mean an order which justice of the case requires to be made. This is made clear from the expression used in the said Rule by saying "the court may pass such further or other order as the case may require". This expression "case" would mean the justice of the case. Of course, this power cannot be exercised ignoring a legal interdict or a prohibition clamped by law.

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19. In fact, the ambit of this provision has come up for consideration in several decisions of this Court. Commenting on this power, Mulla (Civil Procedure Code, 15^th Edn., p. 2647) observed that this Rule is modelled on Order 59 Rule 10(4) of the Supreme Court of Judicature of England, and Mulla further opined that the purpose of this Rule is to do complete justice between the parties.

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20. In Banarsi v. Ram Phal this Court construing the provisions of Order 41 Rule 33 CPC held that this provision confers powers of the widest amplitude on the appellate court so as to do complete justice between the parties. This Court further held that such power is unfettered by considerations as to what is the subject-matter of the appeal or who has filed the appeal or whether the appeal is being dismissed, allowed or disposed of while modifying the judgments appealed against. The learned Judges held that one of the objects in conferring such power is to avoid inconsistency. inequity and inequality in granting reliefs and the overriding consideration is achieving the ends of justice. The learned Judges also held that the power can be exercised subject to three limitations: firstly, this power cannot be exercised to the prejudice of a person who is not a party before the court; secondly, this power cannot be exercised in favour of a claim which has been given up or lost; and thirdly, the power cannot be exercised when such part of the decree which has been permitted to become final by a party is reversed to the advantage of that party.”

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In view of the above, all the Regular First Appeals are dismissed and the cross-objections are allowed. Consequently, the value of the acquired land is enhanced from Rs.9,50,000/- per bigha to Rs.12,35,000/-, per bigha, along with all statutory benefits, as awarded by the learned trial Court. All the petitioners, in the land reference petitions, in these cases are entitled for this award.

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