State of HP & Ors. v. Yoginder Chand

fair compensation is on the State in its absolute terms. The relevant portion of the aforesaid judgment reads as under: “29. It is a settled principle of law that the onus to prove 11 ( 2026:HHC:30237 ) entitlement to receive higher compensation is upon the claimants. In Basant Kumar v. Union of India [(1996) 11 SCC 542] this Court held that the claimants are expected to lead cogent and proper evidence in support of their claim. Onus primarily is on the claimants, which they can discharge while placing and proving on record sale instances and/or such other evidences as they deem proper, keeping in mind the method of computation for awarding of compensation which they rely upon. In this very case, this Court stated the principles of awarding compensation and placed the matter beyond ambiguity, while also capsulating the factors regulating the discretion of the Court while awarding the compensation. This principle was reiterated by this Court even in Gafar v. Moradabad Development Authority [(2007) 7 SCC 614] and the Court held as under: (SCC p.620, para 12)

12. As held by this Court in various decisions, the burden is on the claimants to establish that the amounts awarded to them by the Land Acquisition Officer are inadequate and that they are entitled to more. That burden had to be discharged by the claimants and only if the initial burden in that behalf was discharged, the burden shifted to the State to justify the award.

Thus, the onus being primarily upon the claimants, they are expected to lead evidence to revert the same, if they so desire. In other words, it cannot be said that there is no onus whatsoever upon the State in such reference proceedings. The court cannot lose sight of the facts and clear position of documents, that obligation to pay fair compensation is on the State in its absolute terms. Every case has to be examined on its own facts and the courts are expected to scrutinise the evidence led by the parties in such proceedings.”

In the instant case, the perusal of the impugned award shows that the reference court has assessed the market value of the land under acquisition @ Rs.50,000/- per biswa on the basis of the award passed in Land Reference No.13-S/4 of 2016/2010, titled as Kanshi Ram Vs. State of HP and others. However, in the 12 ( 2026:HHC:30237 ) opinion of this court, in the absence of any cogent and satisfactory evidence on record, the market value of the land under acquisition could not have been assessed on the basis of the aforesaid award as the land in the case of Kanshi Ram is situated in Village Kanchhi, whereas, in the present case, the land is situated in Village Annu. Moreover, the said award has been modified by this Court in RFA No. No.382 of 2018.

Now, the question which arises for consideration before this Court, is as to how the market value of the land in the present case is to be assessed in view of the evidence available on record. Admittedly no sale transaction had taken place in Village Annu one year prior to the last date of the publication of notification under Section 4 of the Act as such one Year Average Market Value of the adjoining Mauza Jungle Shalli Teer was procured by the filed staff and the same was sent to the District Collector, Shimla for approval. The District Collector approved the same, which is reproduced as under:- Classification of land Rate per biswa 1

Kiar Doem. Bakhal Abbal Bakhal Doem Karyali Abbal Karyalki Doem Rs.20,974.58 Rs.16220.34 Rs.10,347.00 Rs.8,669.49 Rs.6,991.53 13 ( 2026:HHC:30237 )

8 Banjar Jaded Banjar Kadeem Ghasni and Bani Rs.3,355.93 Rs.1,677.97 Rs.838.98

However, the Land Acquisition Collector had determined the market value of the land under acquisition classification wise i.e. @ Rs.16,220.34 per biswa for Bakhal Abbal.

It is also a settled law that where the entire area is similarly situated, the value of the land under acquisition is to be assessed as a single unit irrespective of its classification and nature ignoring the purpose to which it was being put prior to the acquisition, as well as to the one it is likely to be put thereafter. In Gulabi & etc. vs. State of H.P., AIR 1998 HP 9, it has been held as under:- “11. As a result of this discussion it is held that the market value of the land on the date of acquisition is Rs.4,000/- per biswa. In this context it is further held that the value of the land under acquisition is to be assessed irrespective of its classification and nature ignoring the purpose to which it was being put prior to the acquisition, as well as to the one it is likely to be put thereafter, Consequently, the appellants are held entitled to compensation at the rate of Rs. 4,000/- per biswa uniformally for all qualities of land and it is ordered ac- cordingly.

In Land Acquisition Officer vs. L Kamalamma (1998) 2 SCC 385, H.P. Housing Board vs. Ram Lal & others 2003(3) Sim.L.C. 64, Executive Engineer & Anr. Vs. Dilla Ram Latest HLJ 2008 (HP) 1007), it was held that when the entire land acquired belongs to one block, classification of the same into different categories is not reasonable. In case acquired land is to be used/developed as a single unit for a purpose having no relevancy with quality of land, the classification of land completely loses its significance.

A co-ordinate bench of this Court in Dinesh Chhetry v. State of H.P. and others, RFA No.156 of 2003, and connected matters, decided on 20.8.2007, has uniformly awarded the highest amount of compensation determined by the Collector, with regard to all categories of acquired land. In fact, the Court observed as under: “The learned Advocate General submitted that keeping in view the ratio of law laid down by this Court in LAC, 16 ( 2026:HHC:30237 ) Solan and another vs. Bhoop Ram, reported in 1997 (2) Sim.L.C. 229, the highest amount of compensation awarded by the Collector should be uniformly applied to all the landowners whose land stand acquired in terms of the awards in question and are subject matter of the present appeals regardless of classification of the land as the purpose of acquisition is same and similar. Therefore, according to him all the claimants in the present appeal whose land has been acquired for the construction of Kumarhatti – Oachghat road should be awarded Rs.1,33,333.20 or say Rs.1,33,330.00 per bigha.

In the case on hand, as discussed above, no sale transaction had taken place in Village Annu one year prior to the last date of the publication of notification under Section 4 of the Act. Perusal of the record reveals that the acquired land is situated near Dharampur-Kelvi having all the facilities like school, dispensary and other offices and having great potential for agriculture and horticulture. In such circumstances, it becomes clear that acquired land was having greater market value than the one, as determined by the Land Acquisition Collector at the rate of Rs.16,220.34 per biswa. As per the rates approved by the District Collector, Shimla, the highest rate of the land acquired at the time of issuance of notification under Section 4 of the Act as on

30.07.2008 was Rs.20,974.58 per biswa as per the One Year Average Market Value of the adjoining Mauza Jungle Shalli Teer.

The perusal of the record reveals that the land has been acquired as the single unit for the public purpose, i.e., for the 18 ( 2026:HHC:30237 ) construction of Narail-Kayartoo-Dharampur Road. Therefore, in view of the aforesaid decision rendered by a co-ordinate bench of this court, in Dinesh Chhetry’s case (supra) highest amount assessed by the District Collector in the sum of Rs.20,974.58/- per biswa for the best category of land ought to have been granted to the petitioner by the Land Acquisition Collector irrespective of its classification. Hence, the market value of the land is determined as Rs.20,974.58 per biswa irrespective of its classification .

The learned counsel for the respondent/petitioner next contended that the possession of the land was taken by the appellants-State in the year 1988-89 but no additional interest, as damages for the period from the date of dispossession till the date of issuance of notification under Section 4 of the Act has been granted. According to him, respondent need not file separate cross-objections, as Order 41 Rule 33 Civil Procedure Code gives ample power to this Court to do complete justice between the parties .

Before examining the entitlement of the petitioner to the grant of compensation 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, the question which arises for consideration 19 ( 2026:HHC:30237 ) before this court in the instant case is as to whether the exercise of the discretionary power given under Order 41, Rule 33 can be invoked and exercised by this court for granting damages to the petitioner for the period with effect from the date of dispossession till the date of issuance of notification under Section 4 of the Act.

Order XLI, Rule 33 of Code of Civil Procedure reads as under:- "O.XLI, R.33 - Power of Court of Appeal- The Appellate Court shall have power to pass any decree and 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, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross suits or where two or more decrees are, passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees: Provided that the Appellate Court shall not make any order under Section 35A, in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order. "

The scope of the above provision has been examined by the Hon’ble Supreme Court in a catena of judgments. In Nirmala Bala Ghose and another v. Balai Chand Ghose, AIR 1965 SC 1874, Hon’ble Supreme Court observed that aforesaid Rule is primarily intended to confer power upon the appellate court to do justice by granting relief to a party who has not appealed, when refusing to 20 ( 2026:HHC:30237 ) do so, would result in making inconsistent, contradictory or unworkable orders. Relevant paragraph thereof is extracted below: "23.....When a party allows a decree of the Court of First Instance to become final, by not appealing against the decree, it would not be open to another party to the litigation, whose rights are otherwise not affected by the decree, to invoke the powers of the appellate Court under Order 41 Rule 33, to pass a decree in favour of the party not appealing so as to give the latter a benefit which he has not claimed. Order 41 Rule 33 is primarily intended to confer power upon the appellate court to do justice by granting relief to a party who has not appealed, when refusing to do so, would result in making inconsistent, contradictory or unworkable orders. We do not think that power under Order 41 Rule 33 of the Civil Procedure Code can be exercised in this case in favour of the deities. "

The issue was subsequently considered by Hon'ble Supreme Court in K. Muthuswami Gounder v. N. Palaniappa Gounder, (1998) 7 SCC 327. The relevant portion is extracted below: "12. Order 41 Rule 33 enables the appellate court to pass any decree or order which ought to have been made and to make such further order or decree as the case may be in favour of all or any of the parties even though (1) the appeal is as to part only of the decree; and (ii) such party or parties may not have filed an appeal. The necessary condition for exercising the power under the Rule is that the parties to the proceeding are before the Court and the question raised properly arises (sic out of) one of the judgments of the lower Court and in that event, the appellate Court could consider any objection to any part of the order or decree of the Court and set it right. We are fortified in this view by the decision of this Court in Mahant Dhangir v. Madan Mohan, 1987 Supp. SCC 528. No hard and fast rule can be laid down as to the circumstances under which the power can be exercised under Order 41, Rule 33, Civil Procedure Code and each case must depend upon its own facts…….” 21 ( 2026:HHC:30237 )

In Banarsi and others v. Ram Phal, (2003) 9 SCC 606, wherein the Hon’ble Supreme Court held as under:- “14. The learned counsel for the respondent forcefully argued that even in the absence of appeal preferred by the plaintiff or cross objection taken by the plaintiff-respondent the Appellate Court was not powerless to grant the decree which it has done in exercise of the power conferred by Rule 33 of Order 41 of the CPC…………

Rule 4 seeks to achieve one of the several objects sought to be achieved by Rule 33, that is, avoiding a situation of conflicting decrees coming into existence in the same suit. The abovesaid provisions confer power of widest amplitude on the appellate court so as to do complete justice between the parties and such power is unfettered by consideration of facts like what is the subject matter of appeal, who has filed the appeal and whether the appeal is being dismissed, allowed or disposed of by modifying the judgment appealed against. While dismissing an appeal and though confirming the impugned decree, the appellate court may still direct passing of such decree or making of such order which ought to have been passed or made by the court below in accordance with the findings of fact and law arrived at by the court below and which it would have done had it been conscious of the error committed by it and noticed by the Appellate Court.

Maharashtra & Anr 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. 18. 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 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.

Thus, a conspectus of the above pronouncements establishes that Order XLI, Rule 33 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 24 ( 2026:HHC:30237 ) to be exercised judiciously with care and caution. The underlying object of the provisions of Order 41, 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.

Now, 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 his land was not acquired at the time of the construction of the road in the year 1988-89 when the road was constructed upon his land, but the possession of the land was taken by the respondents in the year 1988-89. The respondents (appellants herein), in their reply, had admitted the aforesaid averments made by the petitioner being a 25 ( 2026:HHC:30237 ) matter of revenue record. Perusal of the record reveals that petitioner Yoginder Chand, while appearing in the witness-box as PW-2, has categorically deposed that the possession of the land was taken in the year 1988-89, by constructing the road on the said road. However, no cross-examination was conducted on behalf of the State on this aspect. Therefore, in view of the categoric admission made by the appellant/state, it has become clear that the possession of the land was taken in the year 1988-

Admittedly the notification under Section 4 of the Act was issued on 30.07.2008 and published in State Rajpatra on

08.08.2008.

This 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: 26 ( 2026:HHC:30237 ) “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.

15. The 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.

20. In 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 27 ( 2026:HHC:30237 ) 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.”

In 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.

15. It 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.”

In 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 28 ( 2026:HHC:30237 ) 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. Noticing 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. The said view was followed by this Court in Tahera Khatoon Vs. Land Acquisition Officer (2014) 13 SCC 613. Following 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.” 29 ( 2026:HHC:30237 )

In the case on hand, as observed earlier, the possession of the land in question was taken in the year 1988-89, whereas, the notification qua acquisition under Section 4 of the Act was issued on 30.07.2008. 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 way-back in year 1988-89, whereas, the notification qua the acquisition under Section 4 of the Act was issued on 30.07.2008, therefore, the petitioner is entitled to additional interest, as damages, @ 15% per annum for the period from the year 1988-89 (the date when the petitioner was actually dispossessed from the land in question) till

30.07.2008 (the date of issuance of notification of acquisition of the land in question, under Section 4 of the Act).