State of HP and Others v. Kanshi Ram

Order 41."

¶29In Pralhad and others Vs. State Of Maharashtra and another, reported in 2010 (10) SCC 458, the Hon'ble Supreme Court held as under:- "17. Now, the only question which remains is whether the landowners, without filing an appeal before the High Court from the order of the Reference Court, are entitled to the aforesaid benefit on the basis of their application under Order 41 Rule 33 of CPC.

¶18The provision of Order 41, Rule 33 of CPC is clearly an enabling provision, whereby the Appellate Court is empowered to pass any decree or make any order which ought to have been passed or made, and to pass or make such further or other decree or order as the case may require. Therefore, the power is very wide and in this enabling provision, the crucial words are that the Appellate Court is empowered to pass any Order which ought to have been made as the case may require. The expression `Order ought to have been made' would obviously mean an Order which justice of the case requires to be made. This is made clear from the expression used in the said Rule by saying `the court may pass such further or other Order as the case may require.' This expression `case' would mean the justice of the case. Of course, this power cannot be exercised ignoring a legal interdict or a prohibition clamped by law.

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

¶20In Banarsi vs. Ramphal, AIR 2004 SC 1989, this Court construing the provisions of Order 41 Rule 33 of CPC held that this provision confers powers of the widest amplitude on the appellate court so as to do complete justice between the parties. This Court further held that such power is unfettered by considerations as to what is the subject matter of appeal or who has filed the appeal or whether the appeal is being dismissed, allowed or disposed of while modifying the judgments appealed against. The learned Judges held that one of the objects in conferring such power is to avoid inconsistency, inequity and inequality in granting reliefs and the overriding consideration is achieving the ends of justice. The learned Judges also held that the power can be exercised subject to three limitations: firstly, this power cannot be exercised to the prejudice of a person who is not a party before the Court; secondly, this power cannot be exercised in favour of a claim which has been given up or lost; and thirdly, the power cannot be exercised when such part of the decree which has been permitted to become final by a party is reversed to the advantage of that party. (See para 15 at pg. 1997). It has also been held by this Court in Samundra Devi and others vs. Narendra Kaur and others, (2008) 9 SCC 100 (para 21) that this power under Order 41, Rule 33 of CPC cannot be exercised ignoring a legal interdict.

¶21In the instant case, the right of the landowner to receive the benefit under section 23(1A) of the Principal Act is legally permissible in view of the majority decision in Paripoornan (supra). Therefore, the law declared by this Court in Paripoornan (supra) is binding on the High Court under Article 141 of the Constitution and High Court is bound to follow the same, especially when an application has been made by the landowner under Order 41 Rule 33 of CPC."

¶30Thus, a conspectus of the above pronouncements establishes that Order XLI, Rule 33 of CPC confers power of widest amplitude on the Appellate Court so as to do complete justice between the parties. but however, discretion to use such power is to be exercised judiciously with care and caution. The underlying object of the provisions of Order XLI, Rule 33 would clearly go to show that the Parliament has enacted such a provision with a view that the court could rise to the occasion and render substantial justice between the parties even in absence of cross-objections or appeal. Therefore, in absence of the cross-objections filed by the petitioner, this court can invoke the provisions of Order 41, Rule 33 CPC to grant compensation to the petitioner for the period w.e.f. taking-over of the possession of the land till the issuance of the notification under Section 4 of the Act.

¶31Now, the question which arises for consideration is as to whether the petitioner is entitled to additional interest, as damages for the period with effect from the taking-over of the possession of the land till the issuance of the notification under Section 4 of the Act. In the reference petition filed under Section 18 of the Act, the petitioner had averred that the Land Acquisition Collector had not cared to award the compensation from the date of possession, i.e. January, 1995, as possession had been taken on the given date by the respondents on the spot from the petitioner, whereas the notification under Section 4 of the Act was issued on 25.07.1996. In the reply, the respondents have not specifically denied the averments made by the petitioner in this respect. Perusal of the record reveals that petitioner Kanshi Ram, while appearing in the witness-box as PW-2, has categorically deposed that the possession of the land was taken in the year 1995, for the constructions of Kayartoo-Dharampur-Narail road. However, no cross-examination was conducted on behalf of the State on this aspect. Therefore, in view of the stand taken by the appellant/State, it has become clear that the possession of the land was taken in the year 1995. Admittedly the notification under Section 4 of the Act was issued on 25.07.1996 and published in State Rajpatra on 24.08.1996.

¶32This issue of granting use and occupation charges for the period w.e.f. taking-over of the possession of the land till the issuance the notification under Section 4 of the Act is no longer res integra. In Madishetti Bala Ramul (dead) by LRs vs. Land Acquisition Officer (2007) 9 SCC 650 Hon'ble Supreme Court allowed the interest @ 15% per annum on the market value assessed by the Reference Court on the ground that the land was utilized for public purpose without acquisition and payment of compensation for considerable long period. The relevant extract from the aforesaid judgment is quoted for reference as under: "9. The short question which, therefore, arises for consideration is as to whether Section 25 of the Act will have any application in the fact of the present case. Two notifications were issued separately. The second notification was issued as the first notification did not survive. Valuation of the market rate for the acquired land, thus, was required to be determined on the basis of the notification dated

23.12.1991. The earlier notification lost its force. If the notification issued on 16.03.1979 is taken into consideration for all purposes, the subsequent award awarding market value of the land @ Rs. 65/- per square yard cannot be sustained. As the said market value has been determined having regard to the notification issued on 23.12.1991, possession taken over by Respondent in respect of 3 acres 5 guntas of land, pursuant to the said notification dated 16.03.1979 was in the eye of law, therefore, illegal. The High Court evidently directed grant of additional market value @ 12% per annum on the enhanced market value from the date of the publication of the notification dated 23.12.1991 as also interest thereupon from the said date instead and place of 18.05.1979. We generally agree therewith.

¶15The Land Acquisition Officer took possession of the land on the basis of a notification which did not survive. Respondent could not have continued to hold possession of land despite abatement of the proceeding under the 1984 Act. It was directed to be decided by the High Court upon a reference made by the Collector in terms of Section 30 of the Act. The State, therefore, itself realized that its stand in regard to the ownership of 3 acres and 5 guntas of land was not correct. It, therefore, had to issue another notification having regard to the provisions contained in the Land Acquisition (Amendment) Act, 1984. Whereas the High Court may be correct in interpreting the question of law in view of the decision of this Court, but the same would not mean that Appellants would not get anything for being remaining out of possession from 1979 to 1991.

¶20In the peculiar facts and circumstances of the case, although the proper course for us would have to remand the matter back to the Collector to determine the amount of compensation to which the Appellants would be entitled for being remained out of possession since 1979, we are of the opinion that the interest of justice would be met if this appeal is disposed of with a direction that additional interest @ 15% per annum on the amount awarded in terms of award dated 02.01.1999 for the period 16.03.1979 till 22.12.1991, should be granted, which, in our opinion, would meet the ends of justice."

¶33In Tahera Khotoon & others vs. Revenue Divisional Officer/Land Acquisition Officer & others, (2014) 13 SCC 613, the Hon'ble Supreme Court has held as under: "14. In the instant case, it is not in dispute nor can it be disputed by either side that the property in dispute was in possession of the Warangal Municipal Committee. In fact the said Municipal Committee had developed the aforesaid land into a part. Since there was a dispute among the owners of the land with the Municipal Committee, the Municipal Committee had sought the assistance of the State Government to acquire the property and to hand over the same to the Municipal Committee for its use and development.

¶15It is also not in dispute that the Municipal Committee was in possession of the aforesaid property right from 1-1-1938 till the Notification was issued by the State Government on 10-1-1996. Keeping in view the observations made by this Court in Madeshetti Bala Ramul (2007 (9) SCC 650), we direct the State Government to pay rents/damages at the rate of 15% on the compensation awarded from the date the landowners were dispossessed, namely, from 1-1-1938 till the date of issuance of the preliminary Notification i.e. 10-1-1996. The calculations shall be made by the State Government as expeditiously as possible and disburse the aforesaid amount to the appellants as early as possible, at any rate, within three months from the date of receipt of copy of this order."

¶34In Balwan Singh & others vs. Land Acquisition Collector & another, (2016) 13 SCC 412, the same view was reiterated by the Hon'ble Supreme Court and a direction was issued to the acquiring authority to award additional interest by way of damages from the date when the respondents-claimants were dispossessed till the date of notification under Section 4 of the Act. Relevant paras of Balwan Singh's judgment (supra) for the sake of ready reference are extracted hereunder: "1. The short issue arising for consideration in this appeal is whether the appellants are entitled to interest for the period from the date of dispossession to the date of Notification under Section 4(1) of the Land Acquisition Act, 1894 (For short 'the Act'). That issue is no more res integra. In R.L. Jain Vs. DDA (2004) 4 SCC 79 at para 18, this Court has taken the view that the land owner is not entitled to interest under the Act. However, it has been clarified that the land owner will be entitled to get rent or damages for use and occupation for the period the Government retained possession of the property.

¶2Noticing the above position, this Court in Madishetti Bala Ramul Vs. Land Acquisition Officer (2007) 9 SCC 650, took the view that it may not be proper to remand the matter to the Collector to determine the amount of compensation to which the appellants therein would be entitled for the period during which they remained out of possession and hence, in the interest of justice, this Court directed that additional interest at the rate of 15% per annum on the amount awarded by the Land Acquisition Collector, shall be paid for the period between the date of dispossession and the date of Notification under Section 4(1) of the Act.

¶3The said view was followed by this Court in Tahera Khatoon Vs. Land Acquisition Officer (2014) 13 SCC

613.

¶4Following the above view taken by this Court, these appeals are disposed of directing the respondents to award additional interest by way of damages, at the rate of 15% per annum for the period between 1.7.1984, the date when the appellants were dispossessed till

2.9.1993, the date of Notification under Section 4(1) of the Act. Needless to say, that this compensation will be on the basis of land value fixed by the Reference Court. The amount as above, shall be calculated and deposited before the Reference Court within a period of three months from today."

¶35In the case on hand, as observed earlier, the possession of the land in question was taken in the year 1995, whereas, the notification qua acquisition under Section 4 of the Act was issued on 25.07.1996. Hence, in view of the aforesaid authoritative pronouncements of the law laid down by the Hon'ble Supreme Court on the subject, this Court is of the view that since the possession of the land in question was taken in January, 1995, whereas, the notification qua the acquisition under Section 4 of the Act was issued on 25.07.1996, therefore, the petitioner is entitled to additional interest, as damages, @ 15% per annum for the period from January, 1995 (the date when the petitioner was actually dispossessed from the land in question) till 25.07.1996 (the date of issuance of notification of acquisition of the land in question, under Section 4 of the Act).

¶36No other point was urged before me.

¶37Hence, in view of what has been discussed hereinabove, the instant appeal is partly allowed and the impugned award dated 31.10.2017, passed by the learned Reference Court, is modified to the extent that the market value of the land is assessed at Rs.13,890.80 per biswa, irrespective of its classification. The petitioner is also entitled to interest at the rate of 12% per annum on the market value from the date of notification under Section 4 of the Act till the date of award. In addition to the market value, the petitioner is held entitled to get solatium or compulsory acquisition charges at the rate of 30% on such market value as provided under Section 23(2) of the Act and interest at the rate of 9% per annum from the date of notification under Section 4 of the Act upto one year and thereafter at the rate of 15% per annum till payment is made, as provided under Section 28 of the Act. The petitioner is further entitled to additional interest, as damages, at the rate of 15% per annum for the period from January, 1995 (the date when the petitioner was actually dispossessed from the land in question) till 25.07.1996 (the date of issuance of notification of acquisition of the land in question, under Section 4 of the Act). The appeal stands disposed of, so also the pending application(s), if any. (Sushil Kukreja) July 22, 2026 Judge (V.Himalvi)

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RFA No.382 of 2018 Reserved on: 29.06.2026 Date of decision: 22.07.2026 Date of uploading on website: 22.07.2026 _____________________________________________________ State of HP and others ....Appellants Versus Kanshi Ram …Respondent _____________________________________________________ Coram Hon'ble Mr. Justice Sushil Kukreja, Judge 1 Whether approved for reporting? For the appellants: Mr. Balwinder Singh Ballu, Deputy Advocate General. For the respondent: Mr. Sunil Kumar, Advocate. Sushil Kukreja, Judge The instant appeal has been preferred under Section 54 of the Land Acquisition Act, 1894 (for short, 'the Act'), by the appellants/ State against the award dated 31.10.2017, passed by the learned Additional District Judge-II, Shimla, HP (for short 'the Reference Court'), whereby the respondent (hereinafter referred to as the petitioner) was held entitled to enhanced compensation @ Rs.50,000/- per biswa, irrespective of the classification of the Whether reporters of Local Papers may be allowed to see the judgment? acquired land alongwith all statutory benefits, with the prayer that the impugned award may be set aside and the reference petition be ordered to be dismissed. 2. The facts of the case, in brief, are that a notification under Section 4 of the Act was issued by the Government of Himachal Pradesh on 25.07.1996, for acquisition of land of the petitioner comprised in Khasra Nos.295/249/75 & 300/247/72, Kita 2, measuring 0-14-02 hectares, situated in Village Kachhi, Tehsil Theog, District Shimla, for the purpose of construction of Narail- Kayartoo- Dharampur road, which was published in Rajpatra on 24.08.1996 as well as in two newspapers, i.e. 'Punjab Kesari' and 'Uttam Hindu' on 12.08.1996. Notification under Sections 6 & 7 of the Act was also published on 06.05.1997 and in compliance thereof, notice under Section 9 of the Act was issued to the right holders. The Land Acquisition Collector had assessed the market value of the land @ Rs.646/- per biswa irrespective of classification and categorization of the land. 3. Feeling aggrieved and dissatisfied with the aforesaid award dated 07.03.1998, the petitioner preferred a reference petition under Section 18 of the Land Acquisition Act, with the prayer that the reference petition be referred to the learned District Judge, Shimla for grant of just and equitable compensation @ Rs.60,000/- per biswa alongwith all statutory benefits. 4. The learned Reference Court, vide the impugned award dated 31.10.2017, allowed the reference petition and the petitioner was held entitled to enhanced compensation at the rate of Rs.50,000/- per biswa, irrespective of the classification of the acquired land, alongwith solatium, additional compensation, interest on the enhanced amount of compensation etc. Hence, the appellants/State preferred the instant appeal with a prayer to set- aside the impugned award dated 31.10.2017, passed by the learned Reference Court. 5. I have heard learned Deputy Advocate General for the appellants as well learned counsel for the respondent and have also carefully gone through the records. 6. Learned Deputy Deputy Advocate contended that the Land Acquisition Collector had assessed the market value of the acquired land on the basis of one year average, however, the learned Reference Court has arrived at an erroneous conclusion about the market value of the land, without any basis. He further contended that the learned Reference Court has erred in assessing the flat rate at the rate of Rs.50,000/- per biswa and has caused extra burden upon the State exchequer, besides leading to abnormal enhancement as such the impugned award passed by the learned Reference Court deserves to be set aside. 7. Conversely, learned counsel for the respondent supported the impugned award by contending that the learned Reference Court had rightly assessed the market value of the acquired land. 8. As per the settled principle of law, compensati