PRALHAD AND ORS.versusSTATE OF MAHARASHTRA AND ANR.

                        [2010] 11 S.C.R. 916


A                      PRALHAD AND ORS.
                                  v.
              STATE OF MAHARASHTRA AND ANR.
                (Civil Appeal Nos.1745-53 of 2004)
                      SEPTEMBER 15, 2010
B
       [G.S. SINGHVI AND ASOK KUMAR GANGULY, JJ.]

          Land Acquisition Act, 1894 - s.23(1A) - Enhancement
    of compensation - Amendment made in the Act in 1984 -
C   Amended provision of s. 23(1 A) provided for additional
    benefits to landowners - Such amendment made applicable
    to every pending acquisition proceeding under the Act as on
    30-04-1982- Entitlement of appellants-land owners to benefit
    of s.23(1A) - Held: On fa'cts, the acquisition proceedings
D   which affected the appel/ahts~landowners commenced with
    notification ul s.4, which is dated 5-3-1983 and the award was
    passed on 1-3-1984 - Therefore, the appellants-landowners
    were entitled to benefit of the amending provision uls.23(1A)
    - High Court ought to have granted such benefit to the
E   landowners on the basis of their application under 0.41, r.33
    CPC notwithstanding the fact that they did not file any appeal
    before the High Court from the order of the Reference Court
    - Code of Civil Procedure, 1908 - 0. 41 r. 33 - Scope,
    purpose and ambit of

F       Constitution of India, 1950 - Art. 141 - Law declared by
    Supreme Court is binding on the High Court under Art. 141
    and the High Court is bound to follow the same.

        The land belonging to appellants-landlowners was
G acquired under the Land Acquisition Act, 1894. The Land
    Acquisition Collector passed the award. Aggrieved, the
    landowners filed a Reference application under Section
    18 of Act for enhancement of compensation. Meanwhile,
    the Act was amended and benefit was given to the
H                                916
PRALHAD AND ORS. v. STATE OF MAHARASHTRA 917 .
                AND ANR.
landowners under the amended provision i.e. Section           A
23(1A) of the Act. The amendment was made applicable
to every pending acquisition proceeding under the Act
on 30-04-1982.

    The Reference Court enhanced the compensation.            B
The State Government challenged the award of the
Reference Court in the High Court. The landowners did
not file any appeal or cross-objections against the
judgment of the Reference Court, but filed applications
under Order 41, rule 33 CPC.
                                                              c
    The basic issue before the High Court was whether
in absence of an appeal or cross-objection from the
claimants, additional benefits could be granted to the
appellants as provided in Section 23(1A) of the Act. The
High Court held that it had no jurisdiction to award          D
additional benefits under Section 23 (1A) of the Act and
confirmed the award of the Reference Court.

    Partly allowing the instant appeals, the Court

     HELD:1. In the instant case, the acquisition             E
proceeding commenced with notification under Section
4 of the Land Acquisition Act, 1894, which is dated
5.3.1983 and the award was passed on 1.3.1984.
Therefore, the appellants-landowners who were affected
by the instant acquisition proceeding were entitled to the    F
benefit of the amending provision under Section 23(1A).
[Para 16] [924-A-B]

    K.S. Paripoornan v. State of Kera/a and others (1994) 5
sec 593 and Prem Chand and others vs. Union of India AIR      G
2010 SC 1308 - relied on.

     Union of India v. Zora Singh, (1992) 1 SCC 673 -
referred to.

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    918       SUPREME COURT REPORTS              [2010] 11 S.C.R.


A      2. The 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
B 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
c 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
0
  ignoring a legal interdict or a prohibition clamped by law.
  [Para 17] [924-D-G]

       Vanarsi v. Ramphal, AIR 2004 SC 1989 and Samundra
  Devi and others v. Narendra Kaur and others (2008) 9 SCC
E 100 - referred to.

          Mui/a CPC, 15th Edition, pg. 2647 - referred to.

                         Case Law Reference:

F         (1994) s sec 593         relied on            Para 11
          (1992) 1 sec 673         referred to          Para 12
          AIR 2010 SC 1308         relied on            Para 15
          AIR 2004 SC 1989         referred to          Para 20
G
          (2008) 9 sec 1oo         referred to          Para 20
        CIVIL APPELLATE JURISDICTION : Civil Appeal No.
    1745-1753 of 2004.
H
PRALHAD AND ORS. v. STATE OF MAHARASHTRA 919
                AND ANR.

     From the judgment and order dated 09.02.1999 of the A
High Court of Bombay at Nagpur and order dated 09.02.1999
of the High Court of Bombay at Nagpur in C.A. No. 1518 of
1998 and 1546 to 1553 of 1998.          ·

     V.S. Mohta, Vishnu B. Saharya and Viresh B. Saharya              B
(for Saharya & Co.) for the Appellants.

     Manish Pitale (for Asha G. Nair) for the Respondents.

     The Judgment of the Court was delivered by
               I

     GANGULY, J. 1. The relevant facts common in these
                                                                      c
appeals are that a preliminary notification dated 5.03.1983
was issued under Section 4 of the Land Acquisition Act, 1894
(hereinafter referred to as, 'the Principal Act') in respect of the
land at Ghonga Tank in village Ghonga, Taluk Barshitakli, Akola,      D
Nagpur. It was followed by a notification under Section 6 of the
Principal Act on 28.07.1983.

    2. The Land Acquisition Collector passed his award on
1.03.1984, awarding Rs.3600/- per acre for the acquired lands.
Landowners, being aggrieved, filed a Reference application            E
under Section 18 of Act on 5.04.1984, for enhancement of
compensation.

     3. Meanwhile, the Land Acquisition (Amendment) Act,
1984, being Act 68 of 1984 (hereinafter 'the Amendment Act')          F
received the assent of the President on 24.09.1984 for
amending the Principal Act. The amendment was made
applicable to every pending proceeding for acquisition of any
land under the Principal Act and which were pending on
30.04.1982.
                                                                      G
    4. On 25.04.1985, the Additional District Judge, Akola, in·
the Reference Proceeding enhanced the compensation to
Rs.13,000/- per acre, with solatium at the rate of 30% as per
the amendment and interest at the rate of 9% p.a. from the
date of possession.                                             H
    920        SUPREME COURT REPORTS              (2010] 11 S.C.R.

A      5. The State of Maharashtra challenged the award of the
  Reference Court in the High Court of Bombay (Nagpur Bench),
  Nagpur. The landowners did not file any appeal or cross\
  objections against the judgment of the Reference Court, but
  filed applications under Order 41, Rule 33 of the Civil
B Procedure Code (for short "CPC") claiming additional
  compensation at the rate of 12% p.a. on the market value for
  the period commencing from the date of publication of the
  award and interest at 9% p.a. on enhanced compensation
  from the date of taking possession for a period of one year
C and at the rate of 15% for the further period, in view of the
  amendment to the Principal Act.

       6. The High Court, by judgment and order dated
  9.02.1999, dismissed the appeals of the State of Maharashtra
  as well as the applications filed by the landowner5 under Order
D 41, Rule 33 of CPC. The High Court relied on various judgments
  of this Court and held that it had no jurisdiction to award
  additional benefits under Section 23 (1A) of the Land
  Acquisition Act, 1894, while confirming the award of the
  Reference Court.
E
         7. The present appeals are filed by the landowners before
    this Court, challenging the dismissal of their application under
    Order 41, Rule 33 of the CPC by the High Court.

          8. The basic issue before the High Court was whether in
F   absence of an appeal or cross-objection from the claimants,
    is it permissible to grant additional benefits to the appellants
    as provided in Section 23 (1A) of the Amendment Act?
      9. The benefit which is given to the landowners under the
G amendment provision, which came by virtue of Section 15 of
  Act 68 of 1984, is now Section 23 (1A) of the Principal Act.
  Section 23 (1A) of the Principal Act runs as under:

          "23(1A) In addition io the rharket value of the land, as
H
PRALHAD AND ORS. v. STATE OF MAHARASHTRA 921
    AND ANR. [ASOK KUMAR GANGULY, J.]
    above provided, the Court shall in every case award an A
    amount calculated at the rate of twelve per centum per
    annum on such market value for the period commencing
    on and from the date of the publication of the notification
    under section 4, sub-section (1), in respect of such land
    to the date of the award of the Collector or the date of 8
    taking possession of the land, whichever is earlier.

          Explanation.- In computing the period referred to in
    this sub-section, any period or periods during which the
    proceedings for the acquisition of the land were held up          C
    on account of any stay or injunction by the order of any
    Court shall be excluded.]

          (2) In addition to the market-value of the land as
    above provided, the Court shall in every case award a sum
    of [thirty per centum] on such market-value, in                   D
    consideration of the compulsory nature of the acquisition.

     10. The benefit of the aforesaid amended provision to
the landowners was provided by Section 30 (1) of Act 68 of
1984. The said Section 30, which was known as transitional            E
provision, read as under:

    30. Transitional Provisions- (1) The provisions of sub-
    section (1-A) of section 23 of the Principal Act, as inserted
    by clause (a) of section 15 of this Act, shall apply, and shall
    be deemed to have applied, also to, and in relation to,-          F

    (a) every proceeding for the acquisition of any land under
    the Principal Act pending on the 30th day of April, 1982
    [the date of introduction of the Land Acquisition
    (Amendment) Bill, 1982 in the House of the People], in            G
    which no award has been made by the Collector before
    that date;

    (b) every proceeding for the acquisition of any land under
    the Principal Act commenced after that date, whether or
                                                                      H
    922        SUPREME COURT REPORTS                [2010] 11 S.C.R.


A         not an award has been made by the Collector before the
          date of commencement of this Act.

          (2) The provisions of sub-section (2) of section 23 and
          section 28 of the Principal Act, as amended by clause (b)
          of section 15 and section 18 of this Act respectively, shall
B
          apply, and shall be deemed to have applied, also to, and
          in relation to, any award made by the Collector or Court
          or to any order passed by thf7 High Court or Supreme
          Court in appeal against any such award under the
          provisions of the Principal Act after the 30th day of April, ·
c         1982 [the date of introduction of the Land Acquisition
          (Amendment) Bill, 1982, in the House of the People] and
          before the commencement of this Act."

          11. The said transitional provision came up for
D   consideration before this Court in several judgments and there
    was some divergence of judicial opinion which was ultimately
    settled by the Constitution Bench Judgment of this Court in the
    case of K. S. Paripooman vs. State of Kera/a and others,
    (1994) 5 sec 593.
E
       12. In the case of Paripooman (supra) the majority
  judgment was rendered by Justice S.C. Agrawal. In rendering
  the majority judgment their Lordship held that the decision of
  this Court in Union of India vs. Zora Singh, (1992) 1 SCC
F 673, is not correct and in paragraph 70 of the judgment the
  learned Judges held that the Parliament has given a clear
  indication of its intention in Section 30 (1), which was a
  transitional provision. The learned Judges held that since a
  clear intention has been given in Section 30(1), there is no
  scope for any speculation about the parliamentary intention by
G reading Section 23( 1A) in isolation from Section 30( 1) of the
  Act. (See para 70)

         13. The learned Judges also noted the purpose of a
    transitional provision in the statute and referred to Francis
H
PRALHAD AND ORS. v. STATE OF MAHARASHTRA 923
    AND ANR. [ASOK KUMAR GANGULY, J.]

Bennion on Statutory Interpretation and also to Thornton on          A
Legislative Drafting. Relying on those treaties on interpretation,
this Court held that Section 23 (1A) and Section 30 are
interconnected (See para 73, page 639).

     14. In paragraph 74 at page 639 and 640 of the report           B
this Court, on a conjoint reading of Section 23(1A) with Section
30(1), held as follows:

    " ... A perusal of sub-section (1) of Section 30 of the·
    amending Act shows that it divides the proceedings for
    acquisition of land which had commenced prior to the date C
    of the commencement of the amending Act ir'lto two
    categories, proceedings which had commenced prior to
    30-4-1982 and proceedings which had commenced after
    30-4-1982. While clause (a) of Section 30(1) deals with
    proceedings which had commenced prior to 30-4-1982, D
    clause (b) deals with proceedings which commenced after
    30-4-1982. By virtue of clause (a), Section 23(1-A) has
    been made applicable to proceedings which had
    commenced prior to 30-4-1982 if no award had been
    made by the Collector in those proceedings before 30-4- E
    1982. It covers (i) proceedings which were pending before
    the Collector on 30-4-1982 wherein award was made after
    30-4-1982 but before the date of the commencement of
    the amending Act, and (ii) such proceedings wherein
    award was made by the Collector after the date of the F
    commencement of the amending Act. Similarly Section
    30(1 )(b) covers (i) proceedings which had commenced
    after 30-4-1982 wherein award was made prior to the
    commencement of the amending Act. .. "

     15. In subsequent judgment, in Prem Chand and others G
vs. Union of India, AIR 2010 SC 1308, following the ratio in
Paripooman (supra) this Court granted relief to the claimants
in accordance with the provision of Section 23(1A) of the Act.
In that case the land acquisition commenced on 22nd of March
                                                                     H
    924       SUPREME COURT REPORTS              (2010] 11 S.C.R.

A   1978 and the award was passed on 25th February 1983.
         16. Keeping in mind the aforesaid declaration of law, this
    Court holds that in the instant case the acquisition proceeding
    commenced with notification under Section-4 which is dated
    5.3.1983 and the award was passed on 1.3.1984. Therefore,
8
    the landowners who were affected by the instant acquisition .
    proceeding were entitled to the benefit of the amending
    provision under Section 23(1A) in view of the ratio in
    Paripooman (supra).

C        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.
D
       18. The provision of Order 41, Rule 33 ofCPC 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
E 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
F 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
G or a prohibition clamped by law.

       19. In 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
H that this Rule is modelled on Order 59, Rule 10(4) of the
PRALHAD AND ORS. v. STATE OF MAHARASHTRA 925
    AND ANR. [ASOK KUMAR GANGULY, J.]

Supreme Court of Judicature of England, and Mulla further            A
opined that the purpose of this rule is to do complete justice
between the parties.

     20. In Vanarsi vs. Ramphal, AIR 2004 SC 1989, this
Court construing the provisions of Order 41 Rule 33 of CPC           8
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           C
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         D
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           E
which the party 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             F
cannot be exercised ignoring a legal interdict.

     21. In 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 G
(supra). Therefore, the law declared by this Court in
Paripooman (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.
                                                                    H
    926       SUPREME COURT REPORTS               [2010] 11 S.C.R.


A        22. In view of the aforesaid interpretation given to Order
    41 Rule 33 of CPC by this Court, we are of the opinion that
    the High Court denied the relief to the appellants to which they
    are entitled in view of the Constitution Bench decision in
    Paripoornan (supra), by taking a rather restricted and narrow
B   view of the scope of Order 41 Rule 33 of CPC and also on a
    misconstruction of the ratio in Paripoornan (supra).

         23. For the reasons aforesaid, this Court holds that the
    appellants are entitled to the benefit of the amended provision
    of Section 23 (1A) of the Principal Act in view of the clear law
C   laid down by this Court in Paripoornan (supra). The appeals
    are allowed to the extent indicated above. No order as to
    costs.

    B.B.B                                  Appeals partly allowed.