Tuesday, 27 April 2021

What is the freedom of choice principle concerning the doctrine of precedent?

 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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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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