The freedom of choice principle is invoked in several
decisions of the Courts in England. In Young v. Bristol Aeroplane
Company Limited 1944(2), Lord Greene M.R. speaking for the Court of appeal, considered the issue, albeit in the context of following the coordinate Bench decisions of the Court of Appeal, and observed that the Court is unquestionably entitled to choose between the two conflicting decisions.{Para 26}
27. In Atma Ram v. State of Punjab and others, AIR 1959 SC
519, His Lordship B.P. Sinha, who spoke for the Constitution Bench of the Apex Court, implicitly acknowledged the permissibility of the
subordinate Courts invoking the freedom of choice principle.
"We are inclined to think that a five-Judge Bench of the
Supreme Court in Atma Ram v. State of Punjab, AIR 1959 SC
519 has also indicated (at p. 527) that such a task may fall
on and may have to be performed by the High Court. After
pointing out that when a Full Bench of three Judges was inclined
to take a view contrary to another Full Bench of equal
strength, perhaps the better course would have been to constitute
a larger Bench, it has, however, been observed that
for otherwise the subordinate Courts are placed under the
embarrassment of preferring one view to another, both
equally binding on them. According to the Supreme Court,
therefore, when confronted with two contrary decisions of
equal authority, the subordinate Court is not necessarily
obliged to follow the later, but would have to perform the
embarrassing task "of preferring one view to another".
".... We are, however, inclined to think that no blanket
proposition can be laid down either in favour of the earlier or
the later decision and, as indicated hereinbefore, and as has
also been indicated by the Supreme Court in Atma Ram
(supra), the subordinate Court would have to prefer one to
the other and not necessarily obliged, as a matter, of course,
to follow either the former or the later in point of time, but
must follow that one, which according to it, is better in point
of law. As old may not always be the gold, the new is also
not necessarily golden and ringing out the old and bringing
in the new cannot always be an invariable straight-jacket formula in determining the binding nature of precedents of coordinate jurisdiction."
The law as enunciated in that Special Bench decision, as
quoted hereinabove, has our unqualified concurrence.”
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
FIRST APPEAL NO. 769 OF 2018
Vidarbha Irrigation Development Corporation Vs Shri Laxman Seetaram Neulkar,
CORAM : ROHIT B. DEO, J.
DATED : 09-09-2020
This appeal is preferred under Section 54 of the Land
Acquisition Act, 1894 (“Act” for short) taking exception to the
judgment and order dated 26-11-2014 rendered by the learned Joint
Civil Judge (Senior Division), Nagpur in Land Acquisition Reference 2
of 1996 enhancing the compensation awarded by the Special Land
Acquisition Officer from Rs.27,000/- per hectare to Rs.2,00,000/- per
hectare.
2. Before adverting to the submissions of the learned Counsel
Smt. U.A. Patil appearing for the appellant-Vidarbha Irrigation
Development Corporation (‘VIDC’ for short) and the learned Counsel
Shri S.P. Kshirsagar appearing for respondent 1, it would be necessary
to note the factual background.
3. Notification dated 07-2-1991 was issued in exercise of
power under Section 4 of the Act declaring the intention to acquire
land Survey 285, admeasuring 1.05 hectares and land Survey 299,
admeasuring 1.99 hectares of Mouza - Kolar, Tahsil and District Nagpur,
for the Wadgaon Dam Project.
4. The notice under Section 12 of the Act was issued on 17-1-
1995 and the compensation awarded by the Land Acquisition Officer
vide award dated 01-11-1994 was Rs.27,000/- per hectare.
5. Respondent 1 instituted Land Acquisition Reference 2 of
1996 claiming enhanced compensation at the rate of Rs.60,000/- per
acre i.e. at the rate of Rs.1,50,000/- per hectare. Respondent 1
additionally claimed compensation for the trees and well.
6. The reference Court decided Land Reference Application 2
of 1996 vide judgment and order dated 02-5-2002 whereby the
compensation was enhanced to Rs.80,000/- per acre.
7. The judgment and order of the reference Court was
challenged in First Appeal 688 of 2002.
8. This Court decided First Appeal 688 of 2002 vide
judgment dated 30-3-2009 (Coram : B.P. Dharmadhikari, J. as his
Lordship was then). The appeal was partly allowed and the reference
Court was directed to decide the reference afresh.
9. The question framed by this Court was “Whether the
action of the reference Court in granting enhancement by placing
reliance upon sale-deed dated 06-11-1990 can be said to be justified in
present circumstances ?”
10. This Court, while remanding the matter, held that the
reliance upon one single sale instance of dry crop land by the reference
Court for enhancement cannot be sustained. This Court further noted
that the Land Acquisition Officer did adduce evidence before the
reference Court, but then, all the sale-deeds were not produced and the
reference Court did not have the opportunity to analyze the entire
material. This Court directed the reference Court to decide the
reference afresh after giving the parties further opportunity to lead
evidence.
11. The reference Court decided the reference application
afresh vide judgment and order dated 31-12-2009 and granted
enhanced compensation at the rate of Rs.60,000/- per acre i.e. at the
rate of Rs.1,50,000/- per hectare.
12. Respondent 1 herein-the claimant challenged the
judgment and order of the reference Court in First Appeal 660 of 2010
which was decided by this Court vide judgment dated 02-4-2014. This
Court noted that the claimant produced on record sale-deeds dated 13-
12-1992 and 06-11-1990, which were the basis of the enhancement.
This Court further noted that the learned Counsel for the appellant-
respondent 1 herein requested this Court to look into a third sale-deed
dated 07-9-1989, which sale-deed was not admissible in evidence since
it was not produced and proved before the reference Court. Observing
thus, this Court allowed the appeal and remanded the matter to the
reference Court directing that fresh evidence, if any, be recorded.
13. The claimant produced on record of the reference Court
sale-deed dated 07-9-1989 and examined Shri Devrao Vithobaji
Doifode to prove the sale-deed. The said witness is the purchaser of
land admeasuring 2.56 hectares of Mouza – Butibori and the sale
consideration was Rs.80,000/- per acre approximately.
14. The reference Court decided the reference afresh and vide
judgment and order dated 26-11-2014 granted enhanced
compensation at the rate of Rs.80,000/- per acre i.e. Rs.2,00,000/- per
hectare.
15. It is this judgment and order dated 26-11-2014 of the
reference Court, which is under challenge.
16. The substratum of the submissions of the learned Counsel
for the appellant Smt. U.A. Patil is twofold. The first limb of the
submission is that the reference Court committed serious error in
relying on the sale-deed dated 07-9-1989 (Exhibit 43) and the evidence
of Shri Devrao Vithobaji Doifode and the other limb of the submission
is that although the reference application claimed compensation of
Rs.60,000/- per acre, and the application was not amended to claim
further enhancement, the reference Court erroneously granted
enhanced compensation of Rs.80,000/- per acre.
17. In support of the second submission Smt. U.A. Patil placed
heavy reliance on the judgment of the Apex Court in Ujjain Vikas
Pradhikaran v. Tarachand and another, AIR 1996 SC 2772.
18. In response, the learned Counsel Shri S.P. Kshirsagar for
respondent 1 contends that the credibility of the testimony of the
witness Shri Devrao Vithobaji Doifode is not shaken and the crossexamination
is restricted to peripheral aspects leaving the core of the
testimony untouched. Shri S.P. Kshirsagar, learned Counsel contends
that the acquiring body did not adduce cogent evidence in rebuttal and
the reference Court was well justified in relying on the sale-deed dated
07-9-1989, which is proved by examining the purchaser Shri Devrao
Vithobaji Doifode. Countering the submission that the reference Court
could not have awarded enhanced compensation exceeding the
compensation claimed, Shri S.P. Kshirsagar, learned Counsel contended
that the issue is not res integra and the decision of the Apex Court in
Narendra and others v. State of Uttar Pradesh and others (2017) 9 SCC
426 is a complete answer.
19. Considering the second submission canvassed by the
learned Counsel Smt. U.A. Patil for the appellant, the learned Counsel
is not unjustified in relying on the decision of the Apex Court in Ujjain
Vikas Pradhikaran v. Tarachand and another in support of the
contention that the Court cannot grant compensation higher than
claimed by the claimant. The issue is considered in the said decision
thus :
“7. It is true that under Section 22(2) of the Act prior to the
Amendment, the Court was prohibited to enhance the
compensation in excess of the amount claimed pursuant to
notices issued under Sections 9 and 10 of the Act. Since subsection
(2) of Section 22 was deleted by Amendment Act 68
of 1984, the limitation on the exercise of the power of the
Court was taken away. Nonetheless, it would always be open
to a party to claim a particular amount and having claimed at
the rate, the question arises: whether the Court could grant
compensation higher than that claimed by the party? It would
be obvious that when a party claims compensation at a
particular rate, he assesses the market value of the land at
that particular rate and seeks compensation on that basis.
Having assessed the compensation at that particular rate, the
question emerges: whether the Court could grant higher
compensation than was assessed by the party? We find the
answer in the negative. This principle squarely applies to the
facts in these cases. The party having limited the
compensation to Rs.20,000/- per bigha in the memorandum
of appeal filed in the High Court, it would be obvious that the
respondents claimed that they were entitled to the maximum
of the compensation @ Rs.20,000.- per bigha. Thereby the
Court was precluded to award compensation beyond the
amount claimed by the party and award in excess thereof
would be obviously illegal. The power of the Court would be
confined to the difference of the amount awarded by the
reference Court and the amount claimed in the memorandum
of the appeal but not in excess thereof.”
20. In Narendra and others v. State of Uttar Pradesh and
others, the Apex Court referred to its earlier decision in Ashok Kumar
and another v. State of Haryana (2016) 4 SCC 544. It would be
apposite to note the said consideration.
“After hearing the counsel for the parties, we are of the
opinion that the issue has already been settled by this Court
in Ashok Kumar vs. State of Haryana wherein it is held that
it is the duty of the Court to award just and fair compensation
taking into consideration true market value and other
relevant factors, irrespective of claim made by the land
owner and there is no cap on the maximum rate of compensation
that can be awarded by the court and the courts are
not restricted to awarding only that amount that has been
claimed by the land owners/applicants in their application
before it. The relevant paras of this judgment are quoted as
under:
“6. Prior to amendment Act 68 of 1984, the amount of
compensation that could be awarded by the Court was limited
to the amount claimed by the applicant.
Section 25. Rules as to amount of compensation-(1)
When the applicant has made a claim to compensation, pursuant
to any notice given under Section 9, the amount
awarded to him by the court shall not exceed the amount so
claimed or be less than the amount awarded by the Collector
under Section 11.
(2) When the applicant has refused to make such
claim or has omitted without sufficient reason (to be allowed
by the Judge) to make such claim, the amount
awarded by the court shall in no case exceed the amount
awarded by the Collector.
(3) When the applicant has omitted for a sufficient
reason (to be allowed by the Judge) to make such claim, the
amount awarded to him by the court shall not be less than,
and may exceed, the amount awarded by the Collector.
The amended Section 25 reads as under:
“Section 25. Amount of compensation awarded by
Court not to be lower than the amount awarded by the Collector-
The amount of compensation awarded by the Court
shall not be less than the amount awarded by the Collector
under Section 11.
The amendment has come into effect on 24.09.1984.
7. The pre-amended provision put a cap on the maximum;
the compensation by court should not be beyond the
amount claimed. The amendment in 1984, on the contrary,
put a cap on the minimum; compensation cannot be less
what was awarded by the Land Acquisition Collector. The
cap on maximum having been expressly omitted, and the
cap that is put is only on minimum, it is clear that the
amount of compensation that a court can award is no longer
restricted to the amount claimed by the applicant. It is the
duty of the Court to award just and fair compensation taking
into consideration the true market value and other relevant
factors, irrespective of the claim made by the owner.
9. In Bhag Singh v. UT of Chandigarh, this Court held
that there may be situations where the amount higher
than claimed may be awarded to the claimant. The Court observed:
(SCC p.741, para 3)
“3. ... It must be remembered that this was not a dispute
between two private citizens where it would be quite
just and legitimate to confine the claimant to the claim made
by him and not to award him any higher amount than that
claimed though even in such a case there may be situations
where an amount higher than that claimed can be awarded
to the claimant as for instance where an amount is claimed
as due at the foot of an account. Here was a claim made by
the appellants against the State Government for compensation
for acquisition of their land and under the law, the State
was bound to pay to the appellants compensation on the basis
of the market value of the land acquired and if according
to the judgments of the learned single Judge and the Division
Bench, the market value of the land acquired was
higher than that awarded by the Land Acquisition Collector
or the Additional District Judge, there is no reason why the
appellants should have been denied the benefit of payment
of the market value so determined. To deny this benefit to
the appellants would tantamount to permitting the State
Government to acquire the land of the appellants on payment
of less than the true market value. There may be cases
where, as for instance, under agrarian reform legislation, the
holder of land may, legitimately, as a matter of social justice
with a view to eliminating concentration of land in the
hands of a few and bringing about its equitable distribution,
be deprived of land which is not being personally cultivated
by him or which is in excess of the ceiling area with payment
of little compensation or no compensation at all, but where
land is acquired under the Land Acquisition Act, 1894, it
would not be fair and just to deprive the holder of his land
without payment of the true market value when the law, in
so many terms, declares that he shall be paid such market
value....’
10. In Krishi Utpadan Mandi Samiti v. Kanhaiya Lal,
this Court held that under the amended provisions of Section
25 of the Act, the Court can grant a higher compensation
than claimed by the applicant in his pleadings---
11. Further, in Bhimasha v. LAO, a three-Judge Bench
reiterated the principle in Bhag Singh and rejected the contention
that a higher compensation than claimed by the
owner in his pleadings cannot be awarded by the Court....”
21. In Ashok Kumar and another v. State of Haryana, the Apex
Court held that it is the duty of the Court to award just and fair
compensation taking into consideration the true market value and
other relevant factors, irrespective of the claim made by the owner
(emphasis supplied). The Apex Court noted that while the preamendment
provision put a cap on the maximum and the reference
Court could not have granted compensation beyond the amount
claimed, the amendment removes the cap on the maximum and au
contraire puts a cap on the minimum i.e. the compensation cannot be
less than what was awarded by the Land Acquisition Collector. In
Ashok Kumar and another v. State of Haryana, it is categorically
articulated that the amount of compensation that a Court can award is
no longer restricted to the amount claimed by the applicant.
22. In Narendra and others v. State of Uttar Pradesh and
others, the Apex Court approved and followed the dictum of Ashok
Kumar and another v. State of Haryana and additionally referred to the
letter and spirit of Section 28-A of the Act.
23. The two Judges Bench decision in Ujjain Vikas
Pradhikaran v. Tarachand and another was not brought to the notice of
the two Judges Bench in Ashok Kumar and another v. State of Haryana
and Narendra and others v. State of Uttar Pradesh and others.
24. It is difficult to reconcile the articulation in Ujjain Vikas
Pradhikaran v. Tarachand and another, which is that once the claimant
himself assessed the fair compensation, the Court is precluded from
granting higher compensation, with the dictum of Ashok Kumar and
another v. State of Haryana and Narendra and others v. State of Uttar
Pradesh and others, which is that in view of the legislative change, the
fetters on the power of the Court to award compensation higher than
that claimed by the owner are obliterated.
25. Indubitably, there is a sharp cleavage in the articulation of
law in Ujjain Vikas Pradhikaran v. Tarachand and another, which holds
that the Court is powerless from awarding compensation higher than
that claimed and the later decisions of the Apex Court in Ashok Kumar
and another v. State of Haryana and Narendra and others v. State of
Uttar Pradesh and others, which propound that the constraints of cap
on the maximum having been removed by the legislative intervention,the power of the Court to award compensation higher than that
claimed, is unfettered. Ujjain Vikas Pradhikaran v. Tarachand and
another and later two decisions are co-ordinate decisions of the Apex
Court and the seminal issue is whether the High Court is bound to
follow the earlier or the later view or the High Court is free to invoke
the freedom of choice principle and follow that decision, which in the considered view of the High Court, is a stronger authority on law.
26. The freedom of choice principle is invoked in several
decisions of the Courts in England. In Young v. Bristol Aeroplane
Company Limited 1944(2), Lord Greene M.R. speaking for the Court of
appeal, considered the issue, albeit in the context of following the coordinate
Bench decisions of the Court of Appeal, and observed that the
Court is unquestionably entitled to choose between the two conflicting decisions.
27. In Atma Ram v. State of Punjab and others, AIR 1959 SC
519, His Lordship B.P. Sinha, who spoke for the Constitution Bench of
the Apex Court, implicitly acknowledged the permissibility of the
subordinate Courts invoking the freedom of choice principle while
observing thus :
“12. ------ Perhaps, the better course would have been to
constitute a larger Bench, when it was found that a Full
Bench of three Judges was inclined to take a view contrary
to that of another Full Bench of equal strength. Such a
course become necessary in view of the fact that otherwise
the subordinate courts are placed under the embarrassment
of preferring one view to another, both equally binding
upon them…..”
28. The course to be adopted by the subordinate Courts when
confronted with a direct conflict between two decisions of co-ordinate
Benches of the Apex Court was considered by the Full Bench by the
Punjab and Haryana High Court in M/s. Indo Swiss Time Limited,
Dundahera v. Umrao and others, AIR 1981 Punjab and Haryana 213.
Chief Justice S.S. Sandhawaliya considered the issue thus :
“23 Now the contention that the latest judgment of a coordinate
Bench is to be mechanically followed and must
have pre-eminence irrespective of any other consideration
does not commend itself to me. When judgments of the
superior court are of co-equal Benches and therefore of
matching authority then their weight inevitably must be
considered by the rationale and the logic thereof and not by
the mere fortuitous circumstances of the time and date on
which they were rendered. It is manifest that when two
directly conflicting judgments of the superior Court and of
equal authority are extant than both of them cannot be
binding on the courts below. Inevitably a choice though a
difficult one has to be made in such a situation. On principle
it appears to me that the high Court must follow the
judgment which appears to it to lay down the law more
elaborately and accurately. The mere incidence of time
whether the judgments of co-equal Benches of the Superior
Court are earlier or later is a consideration which appears to
me as hardly relevant.”
29. Chief Justice S.S. Sandhawaliya held that on principle the
High Court must follow the judgment which appears to it to lay down
the law more elaborately and accurately unfettered and uninfluenced
by mere incidences of time, drawing support from the dictum in
Hampton v. Holman Miles (1877) 5 Ch D 183, Miles v. Jarvis (1883)
24 Ch D 633 and Young v. Bristol Aeroplane Co. Ltd. (1944) KB 718.
30. While the decision of the Full Bench was split and Chief
Justice S.S. Sandhawaliya was in minority, the majority agreed with the
articulation of the Chief Justice on the freedom of choice principle as is
perceptible from the following passages in the majority judgment :
“38. On a careful consideration of the respective contentions
of the learned counsel for the parties, in the light of
various decisions cited by them, it transpires that the view
taken in the judgment of the Supreme Court in Himalaya
Tiles and Marbles (P.) Ltd. (AIR 1980 SC 1118)(supra), on
which reliance has been placed by Mr. Sarin, is in conflict
with the view taken in the earlier judgment in Municipal
Corporation of the City of Ahmedabad's case (1970) 1
SCWR 183(supra). As observed by my Lord the Chief justice,
a perusal of the two judgments plainly indicates that
there is a direct conflict on the point which needs our decision.
Both the judgments have been rendered by a Bench
consisting of two Hon'ble Judges and cannot possibly be
reconciled. In this situation a some- what interesting though
tricky question arise for determination i. e., when there is a
direct conflict between the two decisions of the Supreme
Court rendered by co-equal Benches, which of them should
be followed by the High Courts and the Courts below.
39. On this question, my Lord the Chief Justice in his
elaborate judgment has held that the Courts may follow the
judgment which appears to them to state the law accurately
and that mere incidence of time whether the judgment of
the co-equal Benches of the superior Court are earlier or
later is a consideration which appears to be hardly relevant.
I have also given my thoughtful consideration to the entire
matter and find myself in respectful agreement with the
aforesaid observation of my Lord the Chief Justice.”
31. In Kamleshkumar Ishwardas Patel v. Union of India and
others, 1994 Mh.L.J. 1669, the Full Bench of this Court was confronted with contrary decisions of the Apex Court emanating from Benches of co-equal strength. Chief Justice A.M. Bhattacharjee, speaking for the Full Bench, articulated that the only reasonable solution and the only
way-out when confronted with contrary decisions of the Apex Court
emanating from co-equal Benches is to undertake the unpleasant task
of choosing that one which appears to have better authority of reasons.
32. The Full Bench expressed unqualified concurrence with
the view of the Special Bench of the Calcutta High Court in Bholanath
v. Madanmohan, AIR 1988 Calcutta 1 at p.5-7, which invoked the
freedom of choice principle. It would be apposite to note the following passage in the Full Bench decision in Kamleshkumar Ishwardas Patel v.
Union of India and others.
“14. It has been pointed out by one of us, while speaking
for a Special Bench of the Calcutta High Court in Bholanath
v. Madanmohan, AIR 1988 Calcutta 1 at p.5-7 on the question
as to the course to be followed by the High Court when
confronted with contrary decisions of the Supreme Court emanating
from Benches of co-equal strength, as hereunder :-
"..... When contrary decisions of the Supreme Court emanate
from Benches of equal strength, the course to be adopted by
the High Court is, firstly, to try to reconcile and to explain
those contrary decisions by assuming, as far as possible, that
they applied to different sets of circumstances. This in fact is
a course which was recommended by our ancient
Jurists-"Srutirdwaidhe Smritirdwaidhe Sthalaveda Prakalapate"
- in case there are two contrary precepts of the Sruties or
the Smritis, different cases are to be assumed for their application.
As Jurist Jaimini said, contradictions or inconsistencies
are not to be readily assumed as they very often be not
real but only apparent resulting from the application of the
very same principle to different sets of facts - "Prayoge Hi Virodha
Syat". But when such contrary decisions of co-ordinate
Benches cannot be reconciled or explained in the manner as
aforesaid, the question would arise as to which one the High
Court is obliged to follow."
"One view is that in such a case the High Court has no option
in the matter and it is not for the High Court to decide which
one it would follow but it must follow the later one. According
to this view, as in the case of two contrary orders issued
by the same authority, the later would supersede the former
and would bind the subordinate and as in the case of two
contrary legislations by the same Legislature, the later would
be the governing one, so also in the case of two contrary decisions
of the Supreme Court rendered by Benches of equal
strength, the later would rule and shall be deemed to have
overruled the former. P. B. Mukharji, J. (as his Lordship then
was) in his separate, though concurring, judgment in the
Special Bench decision of this Court in Pramatha Nath v. Chief
Justice, AIR 1961 Cal.545 at p.551 para 26, took a similar
view, S. P. Mitra, J. (as his Lordship then was) also took such
a view in the Division Bench decision of this Court in Sovachand
Mulchand v. Collector, Central Excise, AIR 168 Cal 174
at p. 186, para 56. To the same effect is the decision of a Division
Bench of the Mysore High Court in New Krishna Bhavan
v. Commercial-tax Officer, AIR 1961 Mys 3 at p. 7 and
the decision of the Division Bench of the Bombay High Court
in Vasant v. Dikkaya 1980 Mh.L.J.229 = AIR 1980 Bom. 341
at p.345. A Full Bench of the Allahabad High Court in U.P.
State Road Transport Corpn. v. Trade Transport Tribunal,
AIR 1977 All 1 at p.5 has also ruled to that effect. The view
appears to be that in case of conflicting decisions by Benches
of matching authority, the law is the latest pronouncement
made by the latest Bench and the old law shall change yielding
place to new."
"The other view is that in such a case the High Court is not
necessarily bound to follow the one which is later in point of
time, but may follow the one which, in its view, is better in
point of law. Sandhawalia, C.J. in the Full Bench decision of
the Punjab & Haryana High Court in Indo-Swiss Time Ltd. v.
Umarao, AIR 1981 Pun.and Har. 213 at pp. 219-220 took
this view with the concurrence of the other two learned
Judges, though as to the actual decision, the other learned
Judges differed from the learned Chief Justice. In the Karnataka
Full Bench decision in Govinda Naik v. West Patent
Press Co. , AIR 1980 Kant. 92, the minority consisting of two
of the learned Judges speaking through Jagannatha Shetty, J.
also took the same view (supra, at p. 95) and in fact the
same has been referred to with approval by Sandhawalia,
C.J. in the Full Bench decision in Indo-Swiss Time (supra)."
"This later view appears to us to be in perfect consonance
with what our ancient Jurist Narada declared - Dharmashastra
Virodhe Tu Yuktiyukta Vidhe Smrita - that is, when the
Dharmashastras or Law Codes of equal authority conflict
with one another, the one appearing to be reasonable, or
more reasonable is to be preferred and followed. A modern
Jurist, Seervai, has also advocated a similar view in his Constitutional
Law of India, which has also been quoted with approval
by Sandhwalia, C.J. in Indo-Swiss Time (supra, at p.
220) and the learned Jurist has observed that "judgments of
the Supreme Court, which cannot stand together, present a
serious problem to the High Courts and Subordinate Courts"
and that "in such circumstances the correct thing is to follow
that judgment which appears to the Court to state the law accurately
or more accurately than the other conflicting judgment."
"It appears that the Full Bench decision of the Madras High
Court in R. Rama Subbnarayalu v. Rengammal, AIR 1962
Mad. 450, would also support this view where it has been
observed (at p. 452) that "where the conflict is between two
decisions pronounced by a Bench consisting of the same
number of Judges, and the subordinate Court after a careful
examination of the decisions came to the conclusion that
both of them directly apply to the case before it, it will then
be at liberty to follow that decision which seems to it more
correct, whether such decision be the later or the earlier
one". According to the Nagpur High Court also, as would appear
from its Full Bench decision in D. D. Bilimoria v. Central
Bank of India, AIR 1943 Nag. 340 at p. 343, in such case of
conflicting authorities, "the result is not that the later authority
is substituted for the earlier, but that the two stand side
by side conflicting with each other", thereby indicating that
the subordinate Courts would have to prefer one to the other
and, therefore, would be at liberty to follow the one or the
other."
"Needless to say that it would be highly embarrassing for the
High Court to declare one out of the two or more decisions
of the Supreme Court to be more reasonable implying
thereby that the other or others is or are less reasonable. But
if such a task falls upon the High Court because of irreconcilable
contrary decisions of the Supreme Court emanating
from Benches of co-ordinate jurisdiction, the task, however
uncomfortable, has got to be performed."
"We are inclined to think that a five-Judge Bench of the
Supreme Court in Atma Ram v. State of Punjab, AIR 1959 SC
519 has also indicated (at p. 527) that such a task may fall
on and may have to be performed by the High Court. After
pointing out that when a Full Bench of three Judges was inclined
to take a view contrary to another Full Bench of equal
strength, perhaps the better course would have been to constitute
a larger Bench, it has, however, been observed that
for otherwise the subordinate Courts are placed under the
embarrassment of preferring one view to another, both
equally binding on them. According to the Supreme Court,
therefore, when confronted with two contrary decisions of
equal authority, the subordinate Court is not necessarily
obliged to follow the later, but would have to perform the
embarrassing task "of preferring one view to another".
".... We are, however, inclined to think that no blanket
proposition can be laid down either in favour of the earlier or
the later decision and, as indicated hereinbefore, and as has
also been indicated by the Supreme Court in Atma Ram
(supra), the subordinate Court would have to prefer one to
the other and not necessarily obliged, as a matter, of course,
to follow either the former or the later in point of time, but
must follow that one, which according to it, is better in point
of law. As old may not always be the gold, the new is also
not necessarily golden and ringing out the old and bringing
in the new cannot always be an invariable straight-jacket formula
in determining the binding nature of precedents of coordinate
jurisdiction."
The law as enunciated in that Special Bench decision, as
quoted hereinabove, has our unqualified concurrence.”
33. A learned Single Judge of this Court (Coram : B.R. Gavai,
J. as his Lordship was then) noted the Full Bench decision in
Kamleshkumar Ishwardas Patel v. Union of India and others and
followed the view of the Apex Court, which according to his Lordship
was in accordance with law.
34. Unpleasant as the task is, I have no option but to follow
the decision which is a better authority on law since the conflicting
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decisions are of co-equal Benches of the Apex Court and are equally
binding on the High Court.
35. Right to property, while no longer a fundamental right, is a
valuable right enshrined in Article 300-A of the Constitution of India.
36. The Land Acquisition Act, 1894 is not an agrarian reform
legislation or a legislation akin thereto. Deprivation of land with
payment of compensation, which may not have any nexus with the
market value of the land and indeed which could be nominal, is
envisaged by social welfare legislations whose laudable object is
agrarian reform and promoting social justice by obliterating
concentration of land in the hands of a few and the equitable
distribution thereto. However, the scheme of the Act mandates that
the compensation shall be fair and just and based on the market value
and other relevant considerations statutorily prescribed. It would be a
travesty of justice, if the Courts, despite concluding that the true
market value of the land is more than that claimed by the land owner,
are precluded from awarding compensation higher than that claimed
on the premise that the claimant himself assessed the market value of
the land. Such a view, in my humble opinion, would not accord either
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22 fa769.18
with the Constitutional philosophy underlying Article 300-A of the
Constitution of India nor with the statutory scheme of the Act.
37. The legislative change brought about by Amendment Act
68 of 1984 is of immense significance. While prior to the amendment,
the Court was precluded from awarding compensation exceeding the
amount claimed by the land owner pursuant to any notice given under
Section 9, the amended Section 25 obliterates the constraint and
removes the cap on the maximum. The only cap retained in the
provision is the cap on the minimum amount of compensation which
shall not be less than the amount awarded by the Collector under
Section 11. The legislative change is consistent with the statutory
scheme, which recognizes the duty of the Court to award just and fair
compensation based on the market value and other statutorily
prescribed considerations.
38. The assessment of the claimant of the true market value of
the land could be flawed. The ground reality that the majority of the
land owners, hail from the lower socio economic strata and are
severely handicapped by poverty, ignorance and, more often than not,
by inadequate access to the relevant data and legal expertise cannot be
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23 fa769.18
ignored. To tell a land owner that although the true market value of
his land is more than what is claimed, he would not be paid the true
market value since he has claimed a lesser amount, would be rubbing
salt to the wound.
39. In a catena of decisions dealing with the provisions of the
Motor Vehicles Act, the Courts have leaned in favour of the view that
since the duty is to award just compensation and there is no cap on the
maximum, the compensation awarded could be more than that
claimed. A useful reference may be made to the following passage in
Nagappa v. Gurudayal Singh (2003) 2 SCC 274.
“7. Firstly, under the provisions of Motor Vehicles Act,
1988, (hereinafter referred to as "the MV Act") there is no
restriction that compensation could be awarded only up to
the amount claimed by the claimant. In an appropriate case,
where from the evidence brought on record if
Tribunal/court considers that claimant is entitled to get
more compensation than claimed, the Tribunal may pass
such award. The only embargo is - it should be 'Just'
compensation, that is to say, it should be neither arbitrary,
fanciful nor unjustifiable from the evidence. This would be
clear by reference to the relevant provisions of the M.V. Act.
Section 166 provides that an application for compensation
arising out of an accident involving the death of, or bodily
injury to, persons arising out of the use of motor vehicles, or
damages to any property of a third party so arising, or both,
could be made (a) by the person who has sustained the
injury; or (b) by the owner of the property; or (c) where
death has resulted from the accident, by all or any of the
legal representatives of the deceased; or (d) by any agent
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24 fa769.18
duly authorised by the person injured or all or any of the
legal representatives of the deceased, as the case may be.
Under the proviso to sub-section (1), all the legal
representatives of the deceased who have not joined as the
claimants are to be impleaded as respondents to the
application for compensation. The other important part of
the said Section is sub-section (4) which provides that "the
Claims Tribunal shall treat any report of accidents
forwarded to it under sub- section (6) of Section 158 as an
application for compensation under this Act." Hence, the
Claims Tribunal in an appropriate case can treat the report
forwarded to it as an application for compensation even
though no such claim is made or no specified amount is
claimed.”
40. In a relatively recent decision Ramla and others v.
National Insurance Company Limited and others, (2019) 2 SCC 192,
the Apex Court has held that there is no restriction that the Court
cannot award compensation exceeding the claim amount, since the
function of the Tribunal or Court under Section 168 of the Motor
Vehicles Act, 1988 is to award “just compensation”. The relevant
observations read thus :
“6. Though the claimant had claimed a total compensation
of Rs.25,00,000/- in their claim petition filed before the
Tribunal, we feel that the compensation which the claimants
are entitled to is higher than the same as mentioned supra.
There is no restriction that the Court cannot award
compensation exceeding the claimed amount, since the
function of the Tribunal or Court under Section 168 of the
Motor Vehicles Act, 1988 is to award “just compensation”.
The Motor Vehicles Act is a beneficial and welfare legislation.
A “just compensation” is one which is reasonable on the basis
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25 fa769.18
of evidence produced on record. It cannot be said to have
become time barred. Further, there is no need for a new
cause of action to claim an enhanced amount. The Courts are
duty bound to award just compensation. (See the judgments
of this Court in (a) Nagappa v. Gurudayal Singh, (b) Magma
General Insurance v. Nanu Ram, (c) Ibrahim v. Raju).”
41. The duty of the Court determining the compensation
under the Act is to determine just and fair compensation and to award
compensation less than just and fair compensation on the premise that
the Court is powerless to grant compensation exceeding the amount
claimed would be doing disservice to the statutory duty. The decisions
of the Apex Court rendered in the context of the provisions of the
Motor Vehicles Act support such view.
42. In view of the discussion supra, I am not inclined to accept
the submission of the learned Counsel Smt. U.A. Patil that the
reference Court erred in awarding compensation higher than that
claimed.
43. Adverting to the first submission, that the appreciation of
evidence is flawed, I have perused the evidence of Shri Devrao
Vithobaji Doifode, who was examined post second remand. The said
witness is a signatory to the sale-deed dated 07-9-1989, which is duly
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proved. The cross-examination of the said witness focuses on the
authority of witness to act for and on behalf of the society. Refuting the
suggestion that the land covered by the sale-deed is located at a
distance of 4 to 5 km. from the land of the applicant-respondent 1
herein, the witness asserts that the distance is hardly 1 to 1 ½ km. In
rebuttal, the acquiring body examined one Shri Chandrakant Borkar,
the Sub-Divisional Officer, Mouda, who deposed on the basis of record.
In the cross-examination, Shri Chandrakant Borkar expressed
ignorance as regards the valuation of the land which is the subject
matter of sale-deed Exhibit 43. The said witness has deposed that the
land acquired is situated far-off from the subject matter of sale-deed
Exhibit 43 and that the quality and fertility of the two lands are
different. However, this statement does not appear to be on the basis
of either personal knowledge or knowledge gathered from record and
Shri Chandrakant Borkar assumes that such are the admissions given
by Shri Devrao Vithobaji Doifode, who proved Exhibit 43. I have not
come across any admission given by Shri Devrao Vithobaji Doifode to
the effect that the quality and fertility of the two lands are different.
44. The evidence is to the effect that the land acquired is
perennially irrigated. The sale instance dated 06-11-1990, and the
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27 fa769.18
subject matter is dry crop land, discloses the sale consideration to be
Rs.40,000/- per acre. While there cannot be any straight-jacket
formula that the valuation of perennially irrigated land shall be twice
the valuation of dry crop land, considering the evidence holistically
and the sale instance Exhibit 43, I do not find any serious error in the
enhancement.
45. No other submission was canvassed.
46. The appeal is dismissed.
JUDGE
adgokar
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