SHRI BADRU (SINCE DECEASED) THROUGH L.R.HARI RAM ETC. versus NTPC LIMITED (FORMERLY NATIONAL THERMAL POWER CORPORATION LIMITED) & ORS. on 16 July 2019

[2019] 9 S.C.R. 993

SHRI BADRU (SINCE DECEASED)THROUGH L.R.HARI RAM ETC.

v.

NTPC LIMITED (FORMERLY NATIONAL THERMAL POWER CORPORATION LIMITED) & ORS.

(Civil Appeal Nos.5557-5559 of 2019)

JULY 16, 2019

[ABHAY MANOHAR SAPRE AND INDU MALHOTRA, JJ.]

Land Acquisition Act, 1894 – ss.11, 18, 23 and 54 –Appellants-landowners’ land acquired by the State-respondent no.3for the benefit of NTPC-respondent no.1 – Land Acquisition Officer(LAO) offered Rs.3,87,383/- per bigha to the appellants ascompensation– Appellants sought reference u/s.18 of the Act –Reference Court enhanced the compensation to Rs.5,00,000/-per bigha – State and NTPC filed appeals before the High Court –Appellants filed cross objection u/Or. XLI,, r.22, CPC in the saidappeals and sought further enhancement in the compensation –Appeals dismissed by the High Court, consequently, the crossobjection filed by the appellants were also dismissed – Held:Appellants had two remedies to question the legality or/andcorrectness of the award passed by the Reference Court – One remedywas by way of appeal u/s.54 of the Act and the other remedy was tofile cross objection u/Or. XLI, r.22, CPC in the appeal filed by theState/NTPC – Landowners took recourse to second remedy – HighCourt having dismissed the appeals filed by the State/NTPC, wasrequired to examine as to whether any case was made out by theappellants – High Court, however dismissed the cross objectionwithout assigning any reason – Or.XLI, r.22(4) provides that where,in any case in which any respondent has under this rule filed amemorandum of objection, the original appeal is withdrawn or isdismissed for default, the objection so filed may nevertheless beheard and determined after such notice to the other parties as theCourt thinks fit – Merely because the High Court dismissed theappeals filed by the respondents though on merits, yet that by itselfwould not result in dismissal of the landowners’ cross objectionalso – Cross objection had to be disposed of on its merits

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Anotwithstanding the dismissal of the appeals as provided u/Or. XLI,,r.22, CPC by assigning reasons – It was obligatory on the part ofthe High Court to have independently examined the issues raisedby the appellants – Case remanded to High Court for deciding thecross objection filed by the appellants in accordance with law –Code of Civil Procedure, 1908 – Or.XLI, r.22.B

Allowing the appeals, the Court

HELD: 1.1 Two questions fell for consideration before theHigh Court: first, whether the Reference Court was right inawarding Rs.5,00,000/- per bigha by way of compensation to theClandowners and second, whether any case was made out forenhancement of the amount of compensation than what wasawarded to them by the Reference Court by its award dated31.03.2009. So far as first question is concerned, it was requiredto be decided by the High Court at the instance of the State/NTPC in their appeals whereas so far as the second question isDconcerned, it was required to be decided at the instance of thelandowners in their cross objection. The appellants (landowners)had two remedies to question the legality or/and correctness ofthe award passed by the Reference Court. One remedy was byway of appeal under Section 54 of the Land Acquisition Act, 1894Eand the other remedy was to file cross objection under Order 41Rule 22 of the Code of Civil Procedure, 1908 in the appeal filedby the State/NTPC. In this case, the landowners took recourseto second remedy of filing the cross objection under Order 41Rule 22 of the Code. [Paras 14-16] [998-C-F]

F1.2 The High Court having dismissed the appeals filed bythe State/NTPC was, therefore, required to examine as to whetherany case was made out by the landowners (appellants herein) intheir cross objection for enhancement of compensation. The HighCourt, in para 24, dismissed the cross objection without assigningany reason. Order 41 Rule 22(4) of the Code, provides that where,Gin any case in which any respondent has under this rule filed amemorandum of objection, the original appeal is withdrawn or isdismissed for default, the objection so filed may nevertheless beheard and determined after such notice to the other parties asthe Court thinks fit. Merely because the High Court dismissedHthe appeals filed by the respondents herein though on merits, yet that by itself would not result in dismissal of the landowners’cross objection also. The cross objection had to be disposed ofon its merits notwithstanding the dismissal of the appeals asprovided by in Order 41 Rule 22 (4) of the Code by assigningreasons. Even though the High Court dismissed the appeals ofthe State/NTPC on merits yet it was obligatory on the part of theHigh Court to have independently examined the issues raisedby the landowners (respondents in appeal) before the High Courtin the cross objection with a view to find out as to whether anycase was made out on facts by the landowners for furtherenhancement in the compensation and, if so, to what extent. Thequestion as to whether any case for enhancement of compensationis made out or not was required to be decided on appreciation ofthe evidence adduced by the parties on the issue of market valueof the acquired land keeping in view the parameters laid down inSection 23 of the 1894 Act. The High Court failed to examine theaforesaid question while dealing with the cross objection of thelandowners and wrongly rejected it without assigning any reasonas is clear from the order quoted above. Rejection of crossobjection without any discussion and reason cannot becountenanced. It is not, therefore, legally sustainable.[Paras 17-22] [998-G-H; 999-A-F]

1.3 The impugned order insofar as it relates to dismissal ofthe appellants’ (landowners) cross objection (Para 24) is set aside.The case is remanded to the High Court for deciding the crossobjection filed by the appellants (landowners) in accordance withlaw with a view to find out as to whether any case on evidence ismade out by the appellants (landowners) for claiming furtherenhancement of the amount of compensation determined by theReference Court and, if so, to what extent and, if not, why. TheHigh Court will first verify as to whether the landowners havevalued their claim made in the cross objection and, if so, whetherthey paid ad velorum court fees on the claim. If the landownersneither valued and nor paid the ad velorum court fees on theclaim, they shall be granted reasonable time to first value theirclaim and pay ad velorum court fees on such claim. Once thecourt fees, as required under the Court fees Act, is paid by thelandowners, the cross objection be decided strictly in accordance AB

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Awith law without disturbing the main order passed in the appealsfiled by the State/NTPC which has attained finality. The High Courtwould accordingly decide the cross objection on its merit strictlyin accordance with law without being influenced by any of theobservations made in this order. [Paras 25, 26] [1000-B-D]

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos.5557-5559 of 2019

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From the Judgment and Order dated 20.04.2017 of the HighCourt of Himachal Pradesh at Shimla in RFA No. 221 of 2011 withCross Objection No. 39 of 2014 and RFA No. 246 of 2011

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Ms.Radhika Gautam, Adv. for the Appellants.

Vikas Mahajan, AAG, Aakash Varma, Anil Kumar, Vinod Sharma,Ms.Laxmi Kumari, Puneet Taneja, Advs. for the Respondents.

The Judgment of the Court was delivered by DABHAY MANOHAR SAPRE, J.

1. Leave granted.

2. These appeals are filed against the final judgment and orderdated 20.04.2017 passed by the High Court of Himachal Pradesh atShimla in R.F.A. No.221 of 2011 with Cross Objection No.39 of 2014Eand R.F.A. No.246 of 2011 whereby the High Court dismissed the appealsfiled by the respondent-NTPC and, in consequence, rejected the CrossObjection filed by the appellants herein.

3. A few facts need mention hereinbelow for the disposal of theseappeals, which involve a short point.F

4. The appellants herein are the claimants (landowners) whereasthe respondent No.1 is the NTPC-a Government Company for whomthe land in question was acquired for public purpose and respondentNos. 2 and 3 are the State and the Land Acquisition Collector.

5. The land in question (hereinafter called the “the suit land”)belonged to the appellants. The suit land was acquired by the State(respondent No. 3) for the benefit of NTPC (respondent No. 1) forexecution of public purpose under the provisions of the Land AcquisitionAct, 1894 (hereinafter referred to as “the Act”). This led to initiation ofproceedings for determination of compensation payable to the landowners G

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(appellants herein) under Section 11 of the Act by the Land AcquisitionOfficer (LAO).

6. By award dated 12.07.2006, the LAO offered Rs.3,87,383/-per bigha to the appellants as compensation for the suit land. Theappellants felt aggrieved and sought reference under Section 18 of theAct to the Civil Court for determination of the compensation offered bythe LAO.

7. The Reference Court (Civil Court) by award dated 31.03.2009partly allowed the reference in favour of the appellants and enhancedthe compensation from Rs.3,87,383/- to Rs.5,00,000/- per bigha. In otherwords, the Reference Court, after appreciating the evidence, held thatthe appellants are entitled to claim compensation at the rate ofRs.5,00,000/- per bigha.

8. The State and NTPC felt aggrieved by the award of theReference Court and filed appeals before the High Court of HimachalPradesh under Section 54 of the Act. The appellants instead of filingregular appeal against the award of reference Court filed cross objectionunder Order 41 Rule 22 of the Code of Civil Procedure, 1908 (hereinafterreferred to as “the Code”) in the respondents’ appeals and soughtenhancement in the compensation awarded by the Reference Court tothem.

9. By impugned order, the High Court dismissed the appeals filedby the NTPC/State and, in consequence, also dismissed the crossobjection filed by the appellants. The effect of the dismissal of the appealsand cross objection was upholding of the award passed by the ReferenceCourt (Civil Court). The landowners felt aggrieved by the rejection oftheir cross objection and they have filed the present appeals by way ofspecial leave in this Court.

10. So, the only question, which arises for consideration in theseappeals, is whether the High Court was justified in dismissing theappellants’ cross objection. Since the respondents herein (State andNTPC) did not file any special leave to appeal in this Court against thatpart of the order of the High Court, which resulted in dismissal of theirappeal, it has attained finality qua the respondents.

11. In other words, we are not required to examine the questionas to whether the High Court was justified in dismissing the respondents’

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Aappeals for two reasons: first, these appeals are filed by the landownersagainst the rejection of their cross objection and second, the respondentsdid not file any appeal against the dismissal of their appeal by the HighCourt.

12. Heard learned counsel for the parties.

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13. Having heard the learned counsel for the parties and on perusalof the record of the case, we are inclined to allow the appeals and whilesetting aside the impugned order insofar as it relates to the dismissal ofthe cross objection, remand the case (cross objection) to the High Courtfor deciding the cross objection on its merits in accordance with law.

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14. Two questions fell for consideration before the High Court:first, whether the Reference Court was right in awarding Rs.5,00,000/-per bigha by way of compensation to the landowners and second, whetherany case was made out for enhancement of the amount of compensationthan what was awarded to them by the Reference Court by its awardDdated 31.03.2009.

15. So far as first question is concerned, it was required to bedecided by the High Court at the instance of the State/NTPC in theirappeals whereas so far as the second question is concerned, it wasrequired to be decided at the instance of the landowners in their crossobjection.

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16. It cannot be disputed that the appellants (landowners) hadtwo remedies to question the legality or/and correctness of the awardpassed by the Reference Court. One remedy was by way of appealunder Section 54 of the Act and the other remedy was to file crossFobjection under Order 41 Rule 22 of the Code in the appeal filed by theState/NTPC. In this case, the landowners took recourse to secondremedy of filing the cross objection under Order 41 Rule 22 of the Code.

17. The High Court having dismissed the appeals filed by theState/NTPC was, therefore, required to examine as to whether any casewas made out by the landowners (appellants herein) in their crossGobjection for enhancement of compensation.

18. We find from the impugned order that the High Court, in para24, dismissed the cross objection without assigning any reason. The orderrejecting the cross objection reads as under:

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24. Cross-objection, if any, shall also stand disposed of.

19. Order 41 Rule 22(4) of the Code, provides that where, in anycase in which any respondent has under this rule filed a memorandum ofobjection, the original appeal is withdrawn or is dismissed for default, theobjection so filed may nevertheless be heard and determined after suchnotice to the other parties as the Court thinks fit.

20. In our considered opinion, merely because the High Courtdismissed the appeals filed by the respondents herein though on merits,yet that by itself would not result in dismissal of the landowners’ crossobjection also. In our view, the cross objection had to be disposed of onits merits notwithstanding the dismissal of the appeals as provided by inOrder 41 Rule 22 (4) of the Code by assigning reasons.

21. In other words, even though the High Court dismissed theappeals of the State/NTPC on merits yet it was obligatory on the part ofthe High Court to have independently examined the issues raised by thelandowners (respondents in appeal) before the High Court in the crossobjection with a view to find out as to whether any case was made outon facts by the landowners for further enhancement in the compensationand, if so, to what extent. The question as to whether any case forenhancement of compensation is made out or not was required to bedecided on appreciation of the evidence adduced by the parties on theissue of market value of the acquired land keeping in view the parameterslaid down in Section 23 of the Act.

22. In our view, the High Court failed to examine the aforesaidquestion while dealing with the cross objection of the landowners andwrongly rejected it without assigning any reason as is clear from theorder quoted above. Rejection of cross objection without any discussionand reason cannot be countenanced. It is not, therefore, legallysustainable.

23. In view of the foregoing discussion, the appeals succeed andare accordingly allowed. The impugned order insofar as it relates todismissal of the appellants’ (landowners) cross objection (Para 24) is setaside.

24. The case is remanded to the High Court for deciding the crossobjection filed by the appellants (landowners) in accordance with lawwith a view to find out as to whether any case on evidence is made out A

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Aby the appellants (landowners) for claiming further enhancement of theamount of compensation determined by the Reference Court and, if so,to what extent and, if not, why.

25. The High Court will first verify as to whether the landownershave valued their claim made in the cross objection and, if so, whetherBthey paid ad velorum court fees on the claim. If the landowners neithervalued and nor paid the ad velorum court fees on the claim, they shall begranted reasonable time to first value their claim and pay ad velorumcourt fees on such claim. Once the court fees, as required under theCourt fees Act, is paid by the landowners, the cross objection be decidedstrictly in accordance with law without disturbing the main order passedCin the appeals filed by the State/NTPC which, as mentioned above, hasattained finality.

26. We, however make it clear that we have not applied our mindto the question as to whether any case was made out by the appellants(landowners) for any enhancement in award of compensation. The HighDCourt would accordingly decide the cross objection on its merit strictlyin accordance with law without being influenced by any of ourobservations made in this order.

EDivya Pandey

Appeals allowed.

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