TaxTMI 
TaxTMI 
2018 (9) TMI 2025
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....enon Popli, Adv. For Respondent : Mr. Yash Pal Dhingra, AOR, Mr. Dinesh Kumar Garg, AOR, Mr. Naresh K. Sharma, AOR, Mr. Himinder Lal, AOR, Mr. Abhinav Mukerji, AOR, Mrs. Bihu Sharma, Adv., Ms. Pratishtha Vij, Adv., Dr. Ashutosh Garg, AOR, Ms. Promila, AOR JUDGMENT ARUN MISHRA, J. 1. Leave granted. 2. The question involved is whether after the abolition of Jagirs by virtue of the Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act, 1953 (hereinafter referred to as 'the Abolition Act'), the late Jagirdar or his legal representatives could have claimed the compensation on the land acquisition being made particularly when land has vested in the State of Himachal Pradesh, the land was not under the personal cultivation, and particularly when they have received the compensation under the Abolition Act, apart from that had also received the compensation under the provisions of H.P. Ceiling on Land Holdings Act, 1972 (hereinafter referred to as "the Ceiling Act"). 3. The facts project how a litigant has filed a slew of litigations one after the other and faced with a situation that it was likely to be dismissed, he would withdraw it; again, file ....
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....peal was preferred before the District Judge, Mahasu. The appeal was partly allowed and the direction which was made of deduction of Rs. 1703.25 was set aside and the payment of entire Rs. 28,019.45 was ordered without aforesaid deduction. 9. As against the decision of the Judicial Commissioner dated 14.11.1962, the matter travelled to this Court in C.A. Nos. 1186-1191/1966. This Court held that vesting Under Section 27, the right, title and interest of the owner in landholding in case land revenue of the holding exceed Rs. 125 per year, would vest free from all encumbrances in the State Government and the vesting is automatic and without being contingent on the happening of any other event. Compensation and rehabilitation grant can be determined and paid later. This Court in the order dated 17.9.1969 made the following observations: It is apparent that Section 27 deals with lands the annual land revenue of which exceeds Rs. 125 per year. It says in unequivocal terms that the right, title and interest of the owner in such lands shall be deemed to have been transferred land vested in the State Government free from all encumbrances. This essentially means that on th....
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....ed from vesting. 10. Faced with the observation made by this Court that the land which is not under personal cultivation vested automatically in the State and as after remand the High Court was required to decide the matter in view of the said observations of this Court, Rajinder Singh prayed for withdrawal of W.P. No. 15/1962 with permission to file a civil suit. The High Court vide order dated 9.7.1970 permitted to withdraw the writ petition with liberty to file a civil suit. Thus, the mandate of this Court in the order dated 17.9.1969 to decide the question of personal cultivation was avoided by the withdrawal of writ petition. 11. Late Rajinder Singh then filed Civil Suit No. 15/1970 in which he took a somersault and prayed for a declaration of title and sought a declaration that the suit property was not the 'land' Under Section 2(5) of the Abolition Act and as such it did not vest in the State of Himachal Pradesh. The case of personal cultivation was abandoned by him. The trial court framed the issues; whether the Plaintiff was in possession of the land in dispute and whether the disputed land, in whole or in part, vested in the State Government? The issue was a....
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....of the High Court as against the judgment and decree dated 26.6.1973 of Single Judge. The first appeal was ultimately withdrawn by making a statement by his counsel that the disputed land had been acquired under the provisions of Section 8 of the H.P. Ceiling on Land Holdings Act, and the compensation had been paid to the Appellant. In view of the subsequent event, prayer was made to withdraw the suit and appeal as it had become infructuous. However, the High Court on 23.6.1986 permitted the Appellant to withdraw the suit with permission to file a fresh suit in respect of the subject matter of the suit on the same cause of action in case there was any necessity to file such a subsequent suit, and the appeal was dismissed as infructuous. It is apparent that the Appellant has accepted the factual position that land was declared surplus and he has received compensation of the disputed land under the provisions of the Ceiling Act, 1972. From which actual factual position and admission, he has tried to wriggle out falsely in the instant matter. 14. The withdrawal of suit C.S. No. 15 of 1970 was aimed at defrauding the court as the trial court has held that the suit land was not perso....
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....10,027.5 Bighas of land as surplus so far as Rajinder Singh was concerned attained finality as it was not questioned by him. 18. As against the order dated 10.11.1993 declaring additional approximately 9000 bighas of land as surplus, the appeal was filed, the same was dismissed by the Commissioner on 30.8.1996. Against the said appellate order revision was filed before the Financial Commissioner and the same was dismissed on 18.1.2002. On 1.8.2013 the Commissioner passed an order upholding the mutation order against which revision was filed before the Financial Commissioner. Ultimately the review petition was also dismissed as not maintainable which the Appellant is stated to have questioned. 19. With respect to the present acquisition proceedings out of which appeal arises, notification Under Section 4 was issued on 9.1.1987 for the acquisition of land for H.P. State Electricity Board for construction of an approach road at Jhakri. The Electricity Board was later on replaced by Nathpa Jhakri Power Corporation (NJPC) and later on by the Appellant Satluj Jal Vidyut Nigam. The Land Acquisition Collector passed an award on 24.2.1989 determining the rate of compensation at the ra....
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....e will serve the ends of justice. In view of the agreed position fairly stated by learned Counsel for the parties and in our view, rightly, we allow these appeals, set aside the judgment of the High court which is under challenge; allow the petitions filed by the Appellants Under Order 6 Rule XVII Code of Civil Procedure and Under Order 41 Rule XXVII Code of Civil Procedure and remand the matter to the High Court for fresh disposal in accordance with law after giving opportunity of hearing to the parties. 23. After the case was remitted to the High Court, appeals have been dismissed vide impugned judgment and order dated 25.2.2008. Aggrieved thereby the appeals have been preferred by Satluj Jal Vidyut Nigam. 24. The Reference Court decided 72 land reference cases wherein it was held that the Respondents were neither the owner nor in possession of the land under acquisition, and the land in question stood vested in the State of Himachal Pradesh. The award was challenged by way of Regular First Appeal and the same is stated to be pending in the High Court. 25. Civil Appeals arising out of SLP [C] No. 9281/2014 arise out of a common judgment dated 18.9.2013 pas....
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....tinguished is apparent from Section 27 and ceiling proceedings of which evidence has been permitted to be adduced by this Court. Even the LAO and the Reference Court have ordered that there was no title with Rajinder Singh, as such, compensation was not to be paid. The effect of previous proceedings and the overall conduct of Rajinder Singh ought to have been taken into consideration by the High Court. The observation made by the High Court that it could not go into the question of the title of Rajinder Singh in the proceedings is wholly incorrect as it is the serious case of fraud, the title has already been adjudicated conclusively and lost in other proceedings. It was not a case of an adjudication of title in the present proceedings. The effect of Section 27 proceeding and that of ceiling Act case was required to be considered. The High Court could not have permitted the perpetuation of fraud while dismissing the first appeal after this Court has remitted the matter to it. 28. It was further urged that the observation made by the LAC in his award in 1989 not to make payment of compensation, due to ceiling case was wholly legal and valid. Even the Reference Court has held in t....
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....vernment. The area of Village Jhakri which was left with Rajinder Singh was 2119 bighas and 19 Biswas. The said land did not vest in the State. After remand of the case from this Court Under Section 27 of Abolition Act, the writ petition was withdrawn and civil suit No. 15/1970 was filed and the same was dismissed by the High Court. The suit was also withdrawn in appeal as such there was no adjudication of the rights in the previous rounds of proceedings. 31. Learned Counsel on behalf of the Respondents further contended that at the time of land acquisition neither the land was finally declared surplus nor possession was taken under the Ceiling Act, as such it did not vest in the State unless the possession was taken. The acquisition of land under the LA Act is protected under the Ceiling Act. The statement made by the counsel on behalf of the Power of Attorney-holder of Rajinder Singh during the course of the first appeal withdrawing Suit No. 15/1970 was incorrect. As the order passed by the Collector in ceiling case declaring the land surplus had been set aside by the Financial Commissioner. As such an incorrect statement was made before the High Court; maybe it was made in ig....
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....nue had not been released, compounded for or redeemed; or (c) which the State Government may, by general Rule or special order, declare to be an estate; (2) "land-owner" does not include a tenant or an assignee of land-revenue, but does not include a person to whom a holding has been transferred, or an estate or holding has been let in farm, under this Act for the recovery of an arrear of land-revenue or of a sum recoverable as such an arrear and every other person not hereinbefore in this Clause mentioned who is in possession of an estate or any share or portion thereof, or in the enjoyment of any part of the profits of an estate; (3) "holding" means a share or portion of an estate held by the land-owner or jointly by two or more land-owners. 35. Estate means any area for which a separate record of rights has been made; or which has been separately assessed to land revenue or would have been so assessed if the land revenue had not been released, compounded for or redeemed. Definition of 'land-owner' does not include a tenant or an assignee of land revenue, and holding means a share or portion of an estate held by the landowner or jointly by....
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....vernment of the rights of the landowner. Same is extracted hereunder: 15. (1) Notwithstanding anything contained in the foregoing provisions of this Chapter but subject to the provisions of Clause (d) and Clause (g) of Sub-section (1) of Section 54, the State Government may by notification in the Gazette declare that as from such date and in respect of such area as may be specified in the notification, the right, title and interest of the landowner in the lands of any tenancy held under him by a tenant shall stand transferred to and vest in the State Government free from all encumbrances created in such lands by the landowner. (2) With effect from the aforesaid date - (a) the landowner shall cease to have any right to collect or to receive any rent or any share of the land revenue in respect of such lands and his liability to pay the land revenue in respect of the lands shall also cease; (b) the tenant shall pay direct to the State Government the rent he was liable to pay to the landowners before the date of the notification; and (c) the consequences mentioned in Clauses (b) to (f) of Section 84 shall mutati....
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....section (1) shall apply in respect of such land which is under the personal cultivation of the landowner. (3) The landowner whose rights are acquired Under Sub-section (1) by the State Government, shall be entitled to receive compensation which shall be determined by the Compensation Officer having regard to Sections 17 and 18 of this Act, in accordance with the provisions of Schedule II, but in the case of such occupancy tenant who is liable to pay rent in terms of land revenue or the multiple of land revenue, the compensation payable to his landowner shall be computed in accordance with Schedule I. (4) The right, title and interest of the landowner acquired Under Sub-section (1) or (2) shall be transferred by the State Government on the payment of compensation in accordance with Schedule I to such tenant who cultivates such land. (5) The State Government shall give rehabilitation grant according to the Rules framed under this Act, to such small landowner whose right, title and interest have been extinguished and who does not have any other means of livelihood. It is apparent from Section 27 that it contains non-obstante Clause and i....
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.... as is apparent from documents and various orders passed in the case. The object of the Abolition Act is to provide for the abolition of big landed estates and to bring land reform in the law relating to tenancies and to make provisions for matters connected therewith. The land holding of Late Rajinder Singh was a big estate and was definitely covered under the purview of the Act and in particular Under Section 27 and all the lands vested in the State except the land under his personal cultivation. 44. Thus, we are of the considered opinion that the area under personal cultivation which was saved in favour of Rajinder Singh was 64 bighas 12 Biswas only as specified. It is apparent from the order dated 27.2.1962 Khata No. 1 Kita measuring 1011 bighas 6 Biswas vested in the ownership of Government of Himachal Pradesh in village Jhakri. In the review on 19.9.1964, there was only partial modification with respect to area 14 bighas 12 Biswas. The land revenue of land at Jakhri as apparent from Jamabandi of 1955-56 at the time when the Abolition Act came into force was Rs. 155.58 it was more than Rs. 125 as such the land which was Banjar kadim or otherwise not under personal cultivati....
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....o included in the definition of land, no doubt about it that growing of grass is for agriculture purpose. However, the pasture or grassland cannot be said to be under personal cultivation and such land would also vest in the State. The expression used is personal cultivation i.e. the cultivation by dint of his own labour. The agriculture is a wider term than personal cultivation and would include several aspects such as dairy-farming, the use of land as grazing, meadow or pasture land or orchard or other land or for market gardens or nursery grounds. The fructus naturales is the outcome of nature alone but such land cannot be said to be under personal cultivation as envisaged in the Abolition Act. 48. In Jadab Singh and Ors. v. The Himachal Pradesh Administration and Ors. AIR 1960 SC 1008, this Court considered the question of the abolition of estates which was declared invalid as having been passed by the State legislature which was not duly constituted. A validating Act was passed by the Parliament. This Court considered the legislature competence and constitutional validity of the Abolition Act. It was held that in view of Article 240 as it stood before its amendment by the C....
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....n it. 51. Section 4 deals with the permissible ceiling area and Section 6 defines a ceiling area in excess of the permissible area. The provisions of Sections 4 and 6 are extracted hereunder: 4. Permissible area- (1) The permissible area of a landowner or a tenant or a mortgagee with possession or partly in one capacity or partly in another of person or a family consisting of husband, wife and up to three minor children shall be in respect of- (a) land under assured irrigation capable of growing two crops in a year- 10 acres. (b) land under assured irrigation capable of growing one crop in a year- 15 acres. (c) land of classes other than described in Clauses (a) and (b) above including land under orchards-30 acres. (2) The permissible area for the purposes of Clause (c) of Sub-section (1) for the districts of Kinnaur and Lahaul and Spiti, Tehsil Pangi and Sub-Tehsil Bharmaur of Chamba district, area of Chhota Bhangal and Bara Bhangal of Baijnath Kanungo Circle of Tehsil Palampur of Kangra district, and area of Dodra Kowar Patwar Circle of Rohru Tehsil and Pandrabis Pargana of Rampur Tehsil ....
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....nbsp;Notwithstanding anything to the contrary contained in any law, custom, usage or agreement, no person shall be entitled to hold whether as a landowner or a tenant or a mortgagee with possession or partly in one capacity and partly in another, the land within the State of Himachal Pradesh exceeding the permissible area on or after the appointed day. 52. The proceedings were initiated under the Ceiling Act and order was passed by Collector (Ceiling) on 10.6.1980 declaring 10,027 bighas 5 Biswas of land as surplus. It was mentioned in the order that the owner had taken compensation of Rs. 57,888.80 which was calculated Under Section 14 of the Act. Voucher details have been given as follows: V.No. Amount Date of receiving compensation 61 18620­60 3.11.80 62 10900­00 5.11.80 63 15000­00 29.1.81 64 3935­65 20.3.81 65 9600­00 31.3.81 53. Now, the factum of withdrawal of the amount of compensation was disputed before us by contending that the compensation under the Ceiling Act had not been received. It passes comprehension that how it lies in the mouth to even contend in view of the clear statement ma....
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....d in the State under the Abolition Act. Once the disputed land had been admittedly declared surplus in Ceiling Act vide order dated 30.6.1980, there was no question of payment of compensation to Rajinder Singh or to his legal representatives in proceedings initiated later on in the year 1987 under the L.A. Act. The Land Acquisition Collector in 1989 was justified in directing that the compensation determined should not be paid due to the effect of the Ceiling Act and that question was raised in the Reference Court also, it was incumbent upon the Reference Court to go into the aforesaid aspects. It was not fact situation that question of the title has been disputed and decided in reference proceedings but whether Rajinder Singh or his L.Rs. were entitled to claim compensation in view of the proceedings and that orders passed under the Abolition Act and Ceiling Act were definitely required to be gone into. Thus, we are of the considered opinion that once land has been declared surplus and compensation has been received. It was not open to receive it again in the land acquisition case. (iii) In Re: Effect of withdrawal of C.S. No. 15/1970 in appeal 55. Civil Suit No. 15/1970 was....
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....ention to the contrary raised by the Respondents that compensation had not been received. It appears that the Respondents have no respect for the truth and have tried to hoodwink the court at several stages by making false averments and statements to perpetrate fraud. 56. In essence, after this Court has remitted the matter to the High Court in the proceedings under the Abolition Act this Court has clearly held as per order dated 17.9.1969 in the case of Rajinder Singh that only the land under personal cultivation would be saved. Thereafter he has withdrawn the writ application of 1962, on the ground that disputed question of fact was raised in the writ application. It was in order to avoid adjudication in view observation of this Court made against interest of Rajinder Singh in aforesaid order and the fact that as the land was not under personal cultivation, the writ petition was withdrawn and thereafter in C.S. No. 15/1970 that was filed in which, Rajinder Singh had abandoned the case of land being under personal cultivation. On the contrary, raised the plea that it was not the "land" at all and as such it was not within the clutches of the Abolition Act. 57. A Single Bench....
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....rder of remand dated 5.9.1985 having attained finality, and it would not be possible to reopen it at any subsequent stage. Thus, the orders dated 30.6.1980 and 5.9.1985 having attained finality vis a vis to Rajinder Singh and compensation having been received, as the land in question was declared surplus under the Ceiling Act. No right, title or interest survived with Rajinder Singh or his successors to claim compensation under Land Acquisition Act. 59. The proceedings were initiated in the year 1987 for the acquisition of land whereas the order of ceiling was passed earlier in 1980 and 1985 and subsequently the surplus area was increased in 1993. By no stretch of any principle of law, Late Rajinder Singh or his successors could have claimed compensation in the proceedings in question initiated under the LA Act in the year 1987. In our considered opinion the Respondents Rajinder Singh and his family were not entitled to claim any monetary compensation under the LA Act for the said land. The amount that had been withdrawn under the LA Act, was wholly impermissible and tantamount to playing fraud upon the legal system. As a matter of fact, compensation has been taken for the land ....
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....ined Under Section 3(b) of the Land Acquisition Act, 1894. This Court observed: 26. The scheme of the Act reveals that the remedy of reference Under Section 18 is intended to be available only to a 'person interested'. A person present either personally or through representative or on whom a notice is served Under Section 12(2) is obliged, subject to his specifying the test as to locus, to apply to the Collector within the time prescribed Under Section 18(2) to make a reference to the Court. The basis of title on which the reference would be sought for Under Section 18 would obviously be a pre-existing title by reference to the date of the award. So is Section 29, which speaks of 'person interested'. Finality to the award spoken of by Section 12(1) of the Act is between the Collector on one hand and the 'person interested' on the other hand and attaches to the issues relating to (i) the true area i.e. measurement of the land, (ii) the value of the land, i.e. the quantum of compensation, and (iii) apportionment of the compensation among the 'persons interested'. The 'persons interested' would be bound by the award without regard....
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....dings at different stages by taking different untenable stands whether compensation can be claimed several times as done in the instant case and its effect. Before the land acquisition had been commenced in 1987, the land more than 1000 bighas had been declared a surplus in ceiling case and compensation collected, which indeed disputed land at Jhakari, it would be a perpetuating fraud in case such a person is permitted to claim compensation for same very land. Fraud vitiates the solemn proceedings; such plea can be set up even in collateral proceedings. The label on the petition is not much material and this Court has already permitted the plea of fraud to be raised. Moreover, Appeal arising out of 72 awards is still pending in the High Court in which Reference Court has declined compensation on the aforesaid ground. 64. Reliance has also been placed on the observations made in Meher Rusi Dalal v. Union of India, (2004) 7 SCC 362, in which this Court has dealt with the issue of apportionment of compensation for which claim was raised by the Union of India, not in the capacity of the owner but as a protected tenant. The claim of tenancy was not put forth before the LAO, though re....
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....s misrepresentation made to induce another to act to his or her detriment. (4) Unconscionable dealing; esp., in contract law, the unconscientious use of the power arising out of the parties' relative positions and resulting in an unconscionable bargain. Halsbury's Law of England has defined fraud as follows: Whenever a person makes a false statement which he does not actually and honestly believe to be true, for purpose of civil liability, the statement is as fraudulent as if he had stated that which he did know to be true, or know or believed to be false. Proof of absence of actual and honest belief is all that is necessary to satisfy the requirement of the law, whether the representation has been made recklessly or deliberately, indifference or reckless on the part of the representor as the truth or falsity of the representation affords merely an instance of absence of such a belief. In KERR on the Law of Fraud and Mistake, fraud has been defined thus: It is not easy to give a definition of what constitutes fraud in the extensive significance in which that term is understood by Civil Courts of Justice. The Courts have always avoided ham....
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....nbsp; *** 23. An act of fraud on court is always viewed seriously. A collusion or conspiracy with a view to deprive the rights of the others in relation to a property would render the transaction void ab initio. Fraud and deception are synonymous. *** *** *** 25. Although in a given case a deception may not amount to fraud, fraud is anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine including res-judicata. (Emphasi....
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....awfully by the declarants in the land ceiling limits will be nullity in the eye of law though such orders have attained finality, if it is found in the enquiry by the Enquiry Officer that they are tainted with fraud, the same can be interfered with by the State Government and its officers to pass appropriate orders. The landowners are also aggrieved parties to agitate their rights to get the orders which are obtained by the declarants as they are vitiated in law on account of nullity is the tenable submission and the same is well founded and therefore, we accept the submission to justify the impugned judgment and order of the Division Bench of the High Court. (Emphasis supplied) 69. In Jai Narain Parasrampuria v. Pushpa Devi Saraf, (2006) 7 SCC 756, this Court observed that fraud vitiates every solemn act. Any order or decree obtained by practicing fraud is a nullity. This Court held as under: 55. It is now well settled that fraud vitiated all solemn act. Any order or decree obtained by practicing fraud is a nullity. [See - (1) Ram Chandra Singh v. Savitri Devi and Ors., (2003) 8 SCC 319 followed in (2) Vice Chairman, Kendriya Vidyalaya Sangathan, and Anr....
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....ntage of another. It is a deception in order to gain by another's loss. It is a cheating intended to get an advantage. (See S.P. Changalvaraya Naidu v. Jagannath, (1994) 1 SCC 1.) 10. "Fraud" as is well known vitiates every solemn act. Fraud and justice never dwell together. Fraud is a conduct either by letter or words, which includes the other person or authority to take a definite determinative stand as a response to the conduct of the former either by words or letter. It is also well settled that misrepresentation itself amounts to fraud. Indeed, innocent misrepresentation may also give reason to claim relief against fraud. A fraudulent misrepresentation is called deceit and consists in leading a man into damage by willfully or recklessly causing him to believe and act on falsehood. It is a fraud in law if a party makes representations, which he knows to be false, and injury enures therefrom although the motive from which the representations proceeded may not have been bad. An act of fraud on court is always viewed seriously. A collusion or conspiracy with a view to deprive the rights of the others in relation to a property would render the transaction void ab....
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....at if any judgment or order is obtained by fraud, it cannot be said to be a judgment or order in law. Before three centuries, Chief Justice Edward Coke proclaimed; Fraud avoids all judicial acts, ecclesiastical or temporal. *** *** *** 22. It is thus settled proposition of law that a judgment, decree or order obtained by playing fraud on the Court, Tribunal or Authority is a nullity and non-est in the eye of law. Such a judgment, decree or order --by the first Court or by the final Court-- has to be treated as nullity by every Court, superior or inferior. It can be challenged in any Court, at any time, in appeal, revision, writ or even in collateral proceedings. *** &....
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....estion before the High Court was whether, in the facts and circumstances of this case, Jagannath obtained the preliminary decree by playing fraud on the court. The High Court, however, went haywire and made observations which are wholly perverse. We do not agree with the High Court that "there is no legal duty cast upon the Plaintiff to come to court with a true case and prove it by true evidence". The principle of "finality of litigation" cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants. The courts of law are meant for imparting justice between the parties. One who comes to the court must come with clean hands. We are constrained to say that more often than not, the process of the court is being abused. Property-grabbers, tax-evaders, bank-loan-dodgers and other unscrupulous persons from all walks of life find the court - process a convenient lever to retain the illegal-gains indefinitely. We have no hesitation to say that a person, who's case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of the litigation. 6. The facts of the prese....
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....ceiling area must be determined afresh under the new Punjab Act. In the instant case, the order was passed in ceiling matter in the year 1980 and the adjudication order of Collector (Ceiling) was not questioned nor the order of remand to declare land as surplus and then the additional land was declared surplus in 1993. It was not the case of re-opening of the case. In fact, the land has vested in the State under the Abolition Act. Thereafter, compensation has been obtained, obviously once land has vested in the State, the possession of such land/open land is deemed to be that of the owner. In any view of the matter, in the facts and circumstances of the instant case, compensation could not have been claimed. 75. In State of H.P. v. Harnama, (2004) 13 SCC 534, this Court observed that possession of land was not taken and the tenant was in occupation of the land and had acquired ownership rights before the land was declared surplus as against the landlord. It was further observed that the land in question had been notified as surplus and the fact that the original owner of the land had been paid compensation, would be of no avail to the State if before the date of actual vesting n....