advocatemmmohan
- advocatemmmohan
- since 1985 practicing as advocate in both civil & criminal laws
Saturday, November 12, 2011
Saturday, November 5, 2011
IN MOTOR ACCIDENT CASE IF DEATH OCCURED , THE DEPENDANTS WEEP, IF PERMANENT DISABILITY OCCURED, THE VICTIM ALONG WITH HIM ALL HIS DEPENDANTS HAVE TO WEEP EVERY DAY - MISRABLE SITUATION , WHILE FIXING COMPENSATION COURT MUST TAKE INTO CONSIDERATION OF THIS FACT.
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No.9014 OF 2011
(Arising out of S.L.P. (C) No.30556 of 2009)
Govind Yadav .......Appellant
Versus
The New India Insurance Company Limited .......Respondents
J U D G M E N T
G.S. Singhvi, J.
1. Leave granted.
2. The appellant has approached this Court because he is not fully satisfied
with the enhancement granted by the High Court in the amount of
compensation awarded by 9th Additional Motor Accident Claims Tribunal,
Jabalpur (for short, `the Tribunal').
3. In the petition filed by him under Section 166 of the Motor Vehicles Act,
1988 (for short, `the Act'), which came to be registered as MVC No.59 of 2005,
the appellant prayed for award of compensation to the tune of Rs.10,70,000/-
2
with interest @ 18%. The appellant's claim was founded on the following
assertions:
(i) That he had suffered grievous injuries in an accident which
occurred on 14.11.2004 when the mini bus in which he was
working as Helper overturned due to rash and negligent driving by
the driver Shri Abdul Ahmad Musalman.
(ii) That he was initially treated at Government Hospital, Seoni from
where he was shifted to Nagpur Medical College. He remained in
the hospital from 14.11.2004 to 2.1.2005 and 15.2.2005 to
20.3.2005. Due to infection, his left leg was amputated above the
knee. Thereafter, he was treated at National Hospital, Jabalpur.
(iii) That at the time of accident his age was about 24 years and he was
drawing monthly salary of Rs.4,000/-.
(iv) That on account of amputation of leg, he lost the job and his future
was bleak.
4. The owner and the driver of the vehicle did not contest the claim of the
appellant, but the respondent insurance company did so. In the written
statement filed on behalf of the respondent, it was pleaded that the accident was
not caused due to rash and negligent driving of the mini bus and, in any case,
3
the insurer was not liable to pay compensation because the driver of the mini
bus did not have valid driving licence.
5. After considering the pleadings of the parties and evidence produced by
them the Tribunal held that the accident was caused due to rash and negligent
driving of the mini bus by its driver. However, the Tribunal did not accept the
appellant's version that he was working as a Helper and was getting salary of
Rs.4,000/- by observing that he had not produced any evidence to prove the
factum of employment and monthly emoluments. The Tribunal then referred to
the Second Schedule of the Act and determined the amount of compensation by
assuming the appellant's income to be Rs.15,000/- per annum. The Tribunal
was of the view that due to 70% disability, the appellant would suffer loss of
income to the tune of Rs.10,500/- per annum. The Tribunal then applied the
multiplier of 17 and held that the appellant is entitled to Rs.1,78,500/- towards
loss of future income. The compensation awarded by the Tribunal under other
heads was as under:
1) Mental agony and physical pain caused due to
amputation of the leg and other injuries Rs.25000/-
2) Medical expenses Rs. 3300/-
3) Expenditure incurred on nutritious food and
transportation during treatment Rs.10000/-
4) Loss of earning due to accident and entertainment
from normal earning Rs.10000/-
5) Cost of artificial leg Rs.30000/-
4
The Tribunal also awarded interest at the rate of 6% on the total compensation
of Rs.2,56,800/-.
6. The appeal preferred by the appellant against the award of the Tribunal
was disposed of by the learned Single Judge of the High Court by granting an
enhancement of Rs.50,000/-. In the opinion of the learned Single Judge, the
income of the appellant, who was working as Cleaner at the time of accident
could be taken as Rs.2000/- per month i.e. Rs.24,000/- per annum and the loss
of income due to 70% permanent disability would be Rs.16,800/- per annum.
He also applied the multiplier of 17 and held that the appellant is entitled to
compensation of Rs.2,85,600/- towards future loss of income. The learned
Single Judge added Rs.20,400/- towards conveyance charges, special diet and
medical expenses and concluded that the appellant is entitled to total
compensation of Rs.3,06,000/- with interest at the rate of 7% per annum from
the date of application.
7. Shri Rajnish K. Singh, learned counsel for the appellant, argued that the
compensation awarded by the Tribunal was wholly inadequate and the High
Court committed serious error by not granting appropriate enhancement
keeping in view the fact that on account of the permanent disability suffered by
5
him, the appellant will not be able to get suitable employment and lead normal
life. He further argued that the Tribunal and the High Court gravely erred in
not awarding just and reasonable compensation for future treatment including
cost of artificial leg which will require periodical replacement.
8. Shri S.L. Gupta, learned counsel for the respondent, supported the
impugned judgment and argued that the appellant has failed to make out a case
for further enhancement in amount of compensation.
9. We have considered respective submissions. This Court has, from time
to time, expressed concern over the increasing number of motor accidents and
pendency of large number of cases involving adjudication of claims made by
the legal representatives of the deceased and also by those who suffer injuries
and disabilities of various types as a result of accidents. The statistics compiled
by Transport Research Wing of Ministry of Road Transport and Highways,
New Delhi show that between 2004 and 2008, more than 5,00,000 people lost
their lives and about 22,60,000 people were injured. The table containing the
details of road accidents in India (2004-2008) as published in the report titled
"Accidental Deaths and Suicides in India, 2008" by National Crime Records
Bureau, Ministry of Home Affairs is reproduced below:
6
Sl. Year Road % Persons % Persons % No. of % Rate
No Accidents variation injured variation killed (in variation vehicles (in variation of
(in over (in over nos.) over thousands) over Deaths
thousand) previous thousands) previous previous previous Per
year year year year Thousand
Vehicles
(Col.7/
Col.9)
(1) (2) (3) (4) (5) (6) (7) (8) (9) (10) (11)
1 2004 361.3 7.4 413.9 8.1 91,376 8.2 66,289* - 1.4
2 2005 390.4 8.0 447.9 8.2 98,254 7.5 66,289* - 1.5
3 2006 394.4 1.0 452.9 1.1 1,05,725 7.6 72,718@ 9.7 1.5
4 2007 418.6 6.1 465.3 2.7 1,14,590 8.4 72,718# - 1.6
5 2008 415.8 -6.7 469.1 0.8 1,18,239 3.2 89,618@ 23.2 1.3
The above noted figures do not include the accidents which are not
reported to the police and other governmental agencies.
10. The personal sufferings of the survivors and disabled persons are
manifold. Some time they can be measured in terms of money but most of the
times it is not possible to do so. If an individual is permanently disabled in an
accident, the cost of his medical treatment and care is likely to be very high. In
cases involving total or partial disablement, the term `compensation' used in
Section 166 of the Motor Vehicles Act, 1988 (for short, `the Act') would
include not only the expenses incurred for immediate treatment, but also the
amount likely to be incurred for future medical treatment/care necessary for a
particular injury or disability caused by an accident. A very large number of
people involved in motor accidents are pedestrians, children, women and
7
illiterate persons. Majority of them cannot, due to sheer ignorance, poverty and
other disabilities, engage competent lawyers for proving negligence of the
wrongdoer in adequate measure. The insurance companies with whom the
vehicles involved in the accident are insured usually have battery of lawyers on
their panel. They contest the claim petitions by raising all possible technical
objections for ensuring that their clients are either completely absolved or their
liabilities minimized. This results in prolonging the proceedings before the
Tribunal. Sometimes the delay and litigation expenses' make the award passed
by the Tribunal and even by the High Court (in appeal) meaningless. It is,
therefore, imperative that the officers, who preside over the Motor Accident
Claims Tribunal adopt a proactive approach and ensure that the claims filed
under Sections 166 of the Act are disposed of with required urgency and
compensation is awarded to the victims of the accident and/or their legal
representatives in adequate measure. The amount of compensation in such
cases should invariably include pecuniary and non-pecuniary damages. In R.D.
Hattangadi v. Pest Control (India) Private Limited (1995) 1 SCC 551, this Court
while dealing with a case involving claim of compensation under the Motor
Vehicles Act, 1939, referred to the judgment of the Court of Appeal in Ward v.
James (1965) 1 All ER 563, Halsbury's Laws of England, 4th Edition, Volume
12 (page 446) and observed:
8
"Broadly speaking while fixing an amount of compensation
payable to a victim of an accident, the damages have to be
assessed separately as pecuniary damages and special damages.
Pecuniary damages are those which the victim has actually
incurred and which are capable of being calculated in terms of
money; whereas non-pecuniary damages are those which are
incapable of being assessed by arithmetical calculations. In
order to appreciate two concepts pecuniary damages may
include expenses incurred by the claimant: (i) medical
attendance; (ii) loss of earning of profit up to the date of trial;
(iii) other material loss. So far non-pecuniary damages are
concerned, they may include (i) damages for mental and
physical shock, pain and suffering, already suffered or likely to
be suffered in future; (ii) damages to compensate for the loss of
amenities of life which may include a variety of matters i.e. on
account of injury the claimant may not be able to walk, run or
sit; (iii) damages for the loss of expectation of life, i.e., on
account of injury the normal longevity of the person concerned
is shortened; (iv) inconvenience, hardship, discomfort,
disappointment, frustration and mental stress in life."
In the same case, the Court further observed:
"In its very nature whenever a tribunal or a court is required to
fix the amount of compensation in cases of accident, it involves
some guesswork, some hypothetical consideration, some
amount of sympathy linked with the nature of the disability
caused. But all the aforesaid elements have to be viewed with
objective standards."
11. In Nizam's Institute of Medical Sciences v. Prasanth S. Dhananka (2009) 6
SCC 1, the three-Judge Bench was dealing with a case arising out of the
complaint filed under the Consumer Protection Act, 1986. While enhancing the
compensation awarded by the National Consumer Disputes Redressal Commission
9
from Rs.15 lakhs to Rs.1 crore, the Bench made the following observations which
can appropriately be applied for deciding the petitions filed under Section 166 of
the Act:
"We must emphasise that the court has to strike a balance between the
inflated and unreasonable demands of a victim and the equally
untenable claim of the opposite party saying that nothing is payable.
Sympathy for the victim does not, and should not, come in the way of
making a correct assessment, but if a case is made out, the court must
not be chary of awarding adequate compensation. The "adequate
compensation" that we speak of, must to some extent, be a rule of
thumb measure, and as a balance has to be struck, it would be difficult
to satisfy all the parties concerned.
At the same time we often find that a person injured in an accident
leaves his family in greater distress vis-`-vis a family in a case of
death. In the latter case, the initial shock gives way to a feeling of
resignation and acceptance, and in time, compels the family to move
on. The case of an injured and disabled person is, however, more
pitiable and the feeling of hurt, helplessness, despair and often
destitution enures every day. The support that is needed by a severely
handicapped person comes at an enormous price, physical, financial
and emotional, not only on the victim but even more so on his family
and attendants and the stress saps their energy and destroys their
equanimity."
(emphasis supplied)
12. In Reshma Kumari v. Madan Mohan (2009) 13 SCC 422, this Court
reiterated that the compensation awarded under the Act should be just and also
identified the factors which should be kept in mind while determining the amount
of compensation. The relevant portions of the judgment are extracted below:
1
"The compensation which is required to be determined must be just.
While the claimants are required to be compensated for the loss of
their dependency, the same should not be considered to be a windfall.
Unjust enrichment should be discouraged. This Court cannot also lose
sight of the fact that in given cases, as for example death of the only
son to a mother, she can never be compensated in monetary terms.
The question as to the methodology required to be applied for
determination of compensation as regards prospective loss of future
earnings, however, as far as possible should be based on certain
principles. A person may have a bright future prospect; he might have
become eligible to promotion immediately; there might have been
chances of an immediate pay revision, whereas in another (sic
situation) the nature of employment was such that he might not have
continued in service; his chance of promotion, having regard to the
nature of employment may be distant or remote. It is, therefore,
difficult for any court to lay down rigid tests which should be applied
in all situations. There are divergent views. In some cases it has been
suggested that some sort of hypotheses or guess work may be
inevitable. That may be so.
In the Indian context several other factors should be taken into
consideration including education of the dependants and the nature of
job. In the wake of changed societal conditions and global scenario,
future prospects may have to be taken into consideration not only
having regard to the status of the employee, his educational
qualification; his past performance but also other relevant factors,
namely, the higher salaries and perks which are being offered by the
private companies these days. In fact while determining the
m
ultiplicand this Court in O
riental Insurance Co. Ltd. v. Jas
huben
held that even dearness allowance and perks with regard thereto from
which the family would have derived monthly benefit, must be taken
into consideration.
One of the incidental issues which has also to be taken into
consideration is inflation. Is the practice of taking inflation into
consideration wholly incorrect? Unfortunately, unlike other
developed countries in India there has been no scientific study. It is
expected that with the rising inflation the rate of interest would go up.
1
In India it does not happen. It, therefore, may be a relevant factor
which may be taken into consideration for determining the actual
ground reality. No hard-and-fast rule, however, can be laid down
therefor."
(emphasis supplied)
13. In Arvind Kumar Mishra v. New India Assurance Company Limited (2010)
10 SCC 254, the Court considered the plea for enhancement of compensation
made by the appellant, who was a student of final year of engineering and had
suffered 70% disablement in a motor accident. After noticing factual matrix of the
case, the Court observed:
"We do not intend to review in detail state of authorities in relation
to assessment of all damages for personal injury. Suffice it to say
that the basis of assessment of all damages for personal injury is
compensation. The whole idea is to put the claimant in the same
position as he was insofar as money can. Perfect compensation is
hardly possible but one has to keep in mind that the victim has done
no wrong; he has suffered at the hands of the wrongdoer and the
court must take care to give him full and fair compensation for that
he had suffered."
(emphasis supplied)
14. In Raj Kumar v. Ajay Kumar (2011) 1 SCC 343, the Court considered some
of the precedents and held:
"The provision of the Motor Vehicles Act, 1988 ("the Act", for short)
makes it clear that the award must be just, which means that
compensation should, to the extent possible, fully and adequately
restore the claimant to the position prior to the accident. The object of
awarding damages is to make good the loss suffered as a result of
1
wrong done as far as money can do so, in a fair, reasonable and
equitable manner. The court or the Tribunal shall have to assess the
damages objectively and exclude from consideration any speculation
or fancy, though some conjecture with reference to the nature of
disability and its consequences, is inevitable. A person is not only to
be compensated for the physical injury, but also for the loss which he
suffered as a result of such injury. This means that he is to be
compensated for his inability to lead a full life, his inability to enjoy
those normal amenities which he would have enjoyed but for the
injuries, and his inability to earn as much as he used to earn or could
have earned.
The heads under which compensation is awarded in personal injury
cases are the following:
Pecuniary damages (Special damages)
(i) Expenses relating to treatment, hospitalisation, medicines,
transportation, nourishing food, and miscellaneous expenditure.
(ii) Loss of earnings (and other gains) which the injured would
have made had he not been injured, comprising:
(a) Loss of earning during the period of treatment;
(b) Loss of future earnings on account of permanent disability.
(iii) Future medical expenses.
Non-pecuniary damages (General damages)
(iv) Damages for pain, suffering and trauma as a consequence of
the injuries.
(v) Loss of amenities (and/or loss of prospects of marriage).
(vi) Loss of expectation of life (shortening of normal longevity).
In routine personal injury cases, compensation will be awarded
only under heads (i), (ii)(a) and (iv). It is only in serious cases of
injury, where there is specific medical evidence corroborating the
evidence of the claimant, that compensation will be granted under
any of the heads (ii)(b), (iii), (v) and (vi) relating to loss of future
earnings on account of permanent disability, future medical
expenses, loss of amenities (and/or loss of prospects of marriage)
and loss of expectation of life."
(emphasis supplied)
1
15. In our view, the principles laid down in Arvind Kumar Mishra v. New
India Assurance Company Ltd. (supra) and Raj Kumar v. Ajay Kumar (supra)
must be followed by all the Tribunals and the High Courts in determining the
quantum of compensation payable to the victims of accident, who are disabled
either permanently or temporarily. If the victim of the accident suffers
permanent disability, then efforts should always be made to award adequate
compensation not only for the physical injury and treatment, but also for the
loss of earning and his inability to lead a normal life and enjoy amenities, which
he would have enjoyed but for the disability caused due to the accident.
16. We shall now consider whether the compensation awarded to the
appellant is just and reasonable or he is entitled to enhanced compensation
under any of the following heads:
(i) Loss of earning and other gains due to the amputation of leg.
(ii) Loss of future earnings on account of permanent disability.
(iii) Future medical expenses.
(iv) Compensation for pain, suffering and trauma caused due to
the amputation of leg.
(v) Loss of amenities including loss of the prospects of marriage.
1
(vi) Loss of expectation of life.
17. A brief recapitulation of the facts shows that in the petition filed by him
for award of compensation, the appellant had pleaded that at the time of
accident he was working as Helper and was getting salary of Rs.4,000/- per
month. The Tribunal discarded his claim on the premise that no evidence was
produced by him to prove the factum of employment and payment of salary by
the employer. The Tribunal then proceeded to determine the amount of
compensation in lieu of loss of earning by assuming the appellant's income to
be Rs.15,000/- per annum. On his part, the learned Single Judge of the High
Court assumed that while working as a Cleaner, the appellant may have been
earning Rs.2,000/- per month and accordingly assessed the compensation under
the first head. Unfortunately, both the Tribunal and the High Court overlooked
that at the relevant time minimum wages payable to a worker were Rs.3,000/-
per month. Therefore, in the absence of other cogent evidence, the Tribunal
and the High Court should have determined the amount of compensation in lieu
of loss of earning by taking the appellant's notional annual income as
Rs.36,000/- and the loss of earning on account of 70% permanent disability as
Rs.25,200/- per annum.
1
The application of multiplier of 17 by the Tribunal, which was approved
by the High Court will have to be treated as erroneous in view of the judgment
in Sarla Verma v. Delhi Transport Corporation (2009) 6 SCC 121. In para 42
of that judgment, the Court has indicated that if the age of the victim of an
accident is 24 years, then the appropriate multiplier would be 18. By applying
that multiplier, we hold that the compensation payable to the appellant in lieu of
the loss of earning would be Rs.4,53,600/-.
18. The award made by the Tribunal for future medical expenses was wholly
inadequate. In Nagappa v. Gurudayal Singh (2003) 2 SCC 274, this Court
considered whether it was permissible to award compensation in installments or
recurring compensation to meet the future medical expenses of the victim. After
noticing the judgment of M. Jagannadha Rao, J. (as he then was) in P.
Satyanarayana v. I. Babu Rajendra Prasad 1988 ACJ 88 (AP), the judgment of the
Division Bench of the Kerala High Court in Valiyakathodi Mohd. Koya v.
Ayyappankadu Ramamoorthi Mohan 1991 ACJ 140 (Kerala), this Court observed:
"In this view of the matter, in our view, it would be difficult to
hold that for future medical expenses which are required to be
incurred by a victim, fresh award could be passed. However, for
such medical treatment, the court has to arrive at a reasonable
estimate on the basis of the evidence brought on record. In the
present case, it has been pointed out that for replacing the
artificial leg every two to three years, the appellant would be
1
required to have some sort of operation and also change the
artificial leg. At that time, the estimated expenses for this were
Rs 18,000 and the High Court has awarded the said amount. For
change of the artificial leg every two or three years no
compensation is awarded. Considering this aspect, if Rs one
lakh is awarded as an additional compensation, the appellant
would be in a position to meet the said expenses from the
interest of the said amount."
After the aforesaid judgment, the cost of living as also the cost of artificial
limbs and expenses likely to be incurred for periodical replacement of such
limb has substantially increased. Therefore, it will be just and proper to award
a sum of Rs.2,00,000/- to the appellant for future treatment. If this amount is
deposited in fixed deposit, the interest accruing on it will take care of the cost of
artificial limb, fees of the doctor and other ancillary expenses.
19. The compensation awarded by the Tribunal for pain, suffering and
trauma caused due to the amputation of leg was meager. It is not in dispute that
the appellant had remained in the hospital for a period of over three months. It
is not possible for the Tribunals and the Courts to make a precise assessment of
the pain and trauma suffered by a person whose limb is amputated as a result of
accident. Even if the victim of accident gets artificial limb, he will suffer from
different kinds of handicaps and social stigma throughout his life. Therefore, in
all such cases, the Tribunals and the Courts should make a broad guess for the
1
purpose of fixing the amount of compensation. Admittedly, at the time of
accident, the appellant was a young man of 24 years. For the remaining life, he
will suffer the trauma of not being able to do his normal work. Therefore, we
feel that ends of justice will be met by awarding him a sum of Rs.1,50,000/- in
lieu of pain, suffering and trauma caused due to the amputation of leg.
20. The compensation awarded by the Tribunal for the loss of amenities was
also meager. It can only be a matter of imagination as to how the appellant will
have to live for the rest of life with one artificial leg. The appellant can be
expected to live for at least 50 years. During this period he will not be able to
live like normal human being and will not be able to enjoy the life. The
prospects of his marriage have considerably reduced. Therefore, it would be
just and reasonable to award him a sum of Rs.1,50,000/- for the loss of
amenities and enjoyment of life.
21. In the result, the appeal is allowed. The impugned judgment and the
award of the Tribunal are set aside. It is declared that the appellant is entitled to
total compensation of Rs.9,53,600/- with interest @ 7% per annum from the
date of filing the claim petition till the date of realization. The respondent is
directed to pay the balance amount of compensation with interest within a
1
period of three months from today in the form of a Bank Draft prepared in the
name of the appellant.
....................................J.
(G.S. Singhvi)
....................................J.
(Surinder Singh Nijjar)
New Delhi,
November 01, 2011.
TNSTC IS THE GOVT. COMPANY - LAND CAN BE ACQUIRED FOR IT
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 137 OF 2003
Ramji Veerji Patel & Ors. .... Appellants
Versus
Revenue Divisional Officer & Ors. ....Respondents
JUDGMENT
R.M. Lodha, J.
The appellants were unsuccessful in challenging the
acquisition of their land before the Single Judge as well as the
Division Bench of the Madras High Court. They are in appeal, by
special leave.
2. On the requisition of Cholan Roadways Corporation
Limited, Kumbakonam (for short, `the Corporation') for making
available land for expansion of their depot, particularly for a
1
workshop, at Chidambaram, the State Government of Tamil Nadu (for
short, `the Government') issued a notification under Section 4(1) of
the Land Acquisition Act, 1894 (for short, `the Act') which was
published in the Gazette on March 3, 1989 notifying for general
information that the land mentioned therein, namely, land
admeasuring 1.45 acres comprised in T.S. No. 14, classified as
government wet land in Chidambaram Municipal Town, South Arcot
District was needed for the above public purpose. The notification
under Section 4(1) was also published in the two newspapers on
November 18, 1988 and in the locality on March 27, 1989. The
appellants filed objections to the acquisition before the Revenue
Divisional Officer (for short, `RDO'), Chidambaram. The diverse
objections to the acquisition were raised; one of such objections
being that the other lands behind the existing depot of the
Corporation were available and could be used for the purpose for
which their land was sought to be acquired. They stated that their
family was dependant upon the income from the saw mill existing on
the land and by compulsory acquisition of their land, they would be
deprived of the sole means of livelihood.
2
3. The RDO considered the objections put forth on behalf of
the appellants and submitted his report to the Government on
conclusion of the enquiry under Section 5-A of the Act.
4. It appears that when the report of the RDO was under
consideration, the appellants sent a representation to the
Government bringing to its notice that the land belonging to Tamil
Nadu Evengelical Lutheran Church (`TELC') just behind the existing
depot has been advertised for sale and, therefore, instead of
resorting to the compulsory acquisition of the appellants' land, the
land of TELC may be acquired.
5. The Government was not persuaded by the appellants'
objections and the declaration under Section 6 of the Act was issued
which was published in the Gazette on March 21, 1990. The
publication of the Section 6 declaration was made by other modes as
well.
6. The appellants challenged the notification under Section
4(1) and declaration under Section 6 of the Act in the writ petition
before the Madras High Court. In opposition to the writ petition,
counter affidavit was filed on behalf of the Government. The learned
3
Single Judge of the High Court dismissed the writ petition by his order
dated November 18, 1998.
7. Against the order of the Single Judge, the appellants
preferred intra-court appeal which has been dismissed by the
impugned order on July 25, 2001.
8. Mr. Pallav Shishodia, learned senior counsel for the
appellants raised two-fold contention. His first contention was that the
appellants' objections about the availability of land belonging to TELC
which is situated behind the existing depot of the Corporation and
was available for sale were not rationally considered by the RDO and
the Government. He submitted that the livelihood of about 40
members of the family was directly affected by the compulsory
acquisition of their land and, therefore, the objections ought to have
been considered in a reasonable manner more so since the public
purpose for which the appellants' land was sought to be acquired
could have been easily met by the acquisition of the TELC's land. In
this regard, he referred to three decisions of this Court, namely, (i)
Delhi Administration v. Gurdip Singh Uban and Others1, (ii) Hindustan
Petroleum Corpn. Ltd. v. Darius Shapur Chenai and others2 and (iii)
1 (2000) 7 SCC 296
2 (2005) 7 SCC 627
4
Radhy Shyam (Dead) Through LRs. and others v. State of Uttar
Pradesh and Others3.
9. The second contention of the learned senior counsel for
the appellants was that the acquisition of the appellants' land by the
Government was for the purposes of the Corporation and the
Corporation being a `company' for the purposes of the Act, the
procedure contemplated in Part VII of the Act was required to be
mandatorily followed and since the said procedure has not been
followed, the acquisition is bad in law. In this regard, Mr. Pallav
Shishodia placed reliance upon a decision of this Court in State of
Punjab and Others v. Raja Ram and others4.
10. On the other hand, Mr. B. Balaji, learned counsel for the
State of Tamil Nadu supported the view taken by the Single Judge
and the Division Bench of the High Court. He submitted that the
proceedings for acquisition of the appellants' land have been initiated
and concluded in accordance with the procedure prescribed in the
Act. There is no illegality in the acquisition of the appellants' land. He
referred to the counter affidavit filed on behalf of the Government
before the High Court in opposition to the writ petition.
3 (2011) 5 SCC 553
4 (1981) 2 SCC 66
5
11. The Act was enacted in 1894 for the acquisition of land
needed for public purposes and for companies and for determining
the amount of compensation to be made on such acquisition. The Act
has undergone some amendments in 1919, 1921, 1923, 1933, 1962,
1967 and 1984; the last major amendments being by the Land
Acquisition (Amendment) Act, 1984 (Act 68 of 1984).
12. The provisions contained in the Act, of late, have been felt
by all concerned, do not adequately protect the interest of the land
owners/persons interested in the land. The Act does not provide for
rehabilitation of persons displaced from their land although by such
compulsory acquisition, their livelihood gets affected. For years, the
acquired land remains unused and unutilised. To say the least, the
Act has become outdated and needs to be replaced at the earliest by
fair, reasonable and rational enactment in tune with the constitutional
provisions, particularly, Article 300A of the Constitution. We expect
the law making process for a comprehensive enactment with regard
to acquisition of land being completed without any unnecessary
delay.
13. Reverting back to the Act, that Section 5-A of the Act
confers a valuable right on the person interested in any land which
has been notified under Section 4(1) as being needed for a public
6
purpose or likely to be needed for public purpose is beyond doubt. By
this right, the owner/person interested may put forth his objections not
only in respect of public purpose but also the suitability of the
acquisition in respect of his land. The objector gets an opportunity
under Section 5-A to persuade the Collector that his land is not
suitable for the purpose for which the acquisition is being made or the
availability of other land suitable for that purpose. Section 5-A
proceedings are two-tier proceedings. In the first step, the objections
by the owner/person interested are heard by the Collector and a
report is submitted to the Government. In the second step, the final
decision is taken by the Government on the objections so furnished
by the person interested and the consideration of the report submitted
by the Collector.
14. In Munshi Singh and others v. Union of India5, in
paragraph 7 of the Report, this Court stated as follows :
"7. Section 5-A embodies a very just and wholesome
principle that a person whose property is being or is
intended to be acquired should have a proper and
reasonable opportunity of persuading the authorities
concerned that acquisition of the property belonging to
that person should not be made. ... The legislature has,
therefore, made complete provisions for the persons
interested to file objections against the proposed
acquisition and for the disposal of their objections. It is
only in cases of urgency that special powers have been
5 (1973) 2 SCC 337
7
conferred on the appropriate Government to dispense
with the provisions of Section 5-A: "
15. The above legal position has been reiterated by this Court
in various decisions including the decisions of this Court in Hindustan
Petroleum Corpn. Ltd.2 and Radhy Shyam3 cited by Mr. Pallav
Shishodia. In Hindustan Petroleum Corpn. Ltd.2 , this Court in
paragaraph 6 of the Report stated thus :
"6. It is not in dispute that Section 5-A of the Act confers a
valuable right in favour of a person whose lands are sought
to be acquired. Having regard to the provisions contained
in Article 300-A of the Constitution, the State in exercise of
its power of "eminent domain" may interfere with the right
of property of a person by acquiring the same but the same
must be for a public purpose and reasonable compensation
therefor must be paid."
16. In Union of India v. Mukesh Hans6, this Court referred to
Munshi Singh5 and in paragraph 35 of the Report stated that the
limited right given to the owner/person interested under Section 5-A
of the Act to object to the acquisition proceedings is not an empty
formality and is a substantive right.
17. As a matter of law, under the Act, the only right that the
owner/person interested has, is to submit objections to the
compulsory acquisition of his land under Section 5-A. No question,
such right and the consideration of objections filed by the land-
6 (2004) 8 SCC 14
8
owner/person interested in exercise of such right must be given the
importance it deserves. The question before us, is whether the
consideration of the appellants' objections to the acquisition of their
land by the Government suffers from any illegality or irrationality.
18. The appellants and their family members purchased the
subject land admeasuring 1.45 acres on January 27, 1981. The said
land was agricultural at the time of purchase and was depressed in
as much as it was low in level than the main road. The appellants
incurred expenditure in raising the level of the land and made
improvements; raised the building thereon and installed a saw mill
somewhere in 1986. In their objections filed on May 24, 1989 before
the RDO, the facts concerning the expenditure incurred by them for
converting the agricultural land into building site; the deprivation of
their sole means of livelihood and the availability of other lands were
stated. The objectors also stated that the workshop of Thanthai
Periyar Transport Corporation was originally put up in Anna
Kalayarangam land owned by the Municipality. Later, they had
purchased four acres of land comprised in T.S. Nos. 133 and 151 at
Lal Puram main road, and constructed a workshop and that workshop
was functioning. The Corporation, the objectors submitted, can
acquire any extent of land next to them to construct a workshop.
9
19. The RDO considered the above objections raised by the
appellants and in the proceedings drawn on September 14, 1989
overruled the same. The RDO held that when the requisitioning
authority approached TELC for making available their land, the TELC
refused to sell the said land and informed them that they required
their land for their religious purposes. The RDO, in this backdrop,
observed that TELC's land cannot be acquired for the purpose of
expansion of depot. As regards the availability of lands near Thanthai
Periyar Transport Corporation, the RDO observed that these lands
were one kilometre away from the Corporation's depot and, thus, the
land of the appellants alone was suitable for the expansion of depot.
The RDO, accordingly, forwarded its report to the Government.
20. On October 26, 1989, TELC issued a public notice in a
daily newspaper `Dina Malhar' for sale of its land referred to above.
The appellants sent the copy of the said notice to the Government.
However, the Government was not persuaded to accept the
landowners' objections and on consideration of the RDO's report
proceeded with the issuance and publication of declaration under
Section 6 of the Act.
21. Mr. Pallav Shishodia, learned senior counsel for the
appellants vehemently contended that the land belonging to the
10
TELC is suitable as that land is situated just behind the existing
depot; the existing depot has already access to the main road from
Chidambaram to Cuddalore and on acquisition of the land of TELC,
the acquired land too would have access to the main road through
the existing depot of the Corporation. He, thus, submitted that
suitability aspect has not at all been rationally considered by the
Government.
22. It is difficult to accept the contention of the learned senior
counsel for more than one reason. In the first place, in paragraph 5 of
the counter affidavit filed by the Government before the High Court,
inter alia, following averment was made:
".......The land acquired exists adjacent to the existing
depot and it has easy access to the main road from
Chidambaram to Cuddalore and it is found to be more
suitable in all aspects for the expansion of the
depot.........."
The above averment remains unrebutted and unchallenged by the
appellants as no rejoinder was filed.
23. Secondly, if the land proposed to be acquired and the
alternative land suggested by the owners/persons interested are
equally suitable for the purpose for which land is being acquired, the
satisfaction of the Government, if not actuated with ulterior motive,
11
must get primacy. In the judicial review, it is not open to the court to
examine the aspect of suitability as a court of appeal and substitute
its opinion. In any case the present case is not a case where the
other lands suggested by the appellants have been found to be
equally suitable. The Government has given reasons as to why the
appellants' land has been found to be more suitable for expansion of
the depot. The appellants' land is adjacent to the existing depot of
the Corporation having easy access to the main road. In our view,
the manner in which the decision has been taken by the Government
regarding suitability of the appellants' land for expansion of the depot
of the Corporation is not vitiated by any error of law nor it is irrational
or founded on the extraneous reasons.
24. Third and more important, at the insistence of the
learned senior counsel for the appellants, we considered the site
plan referred to by him and from a perusal thereof no doubt is left that
the land of the appellants is more suitable than the land of TELC
situate behind the existing depot. TELC land has no direct access
from the Chidambaram to Cuddalore main road. It has access from a
different side road passing adjacent to the canal. The size of the
TELC's land is also awkward; it is a long piece of land of which width
narrows down from 175 feet to 56 feet west to east. On the other
12
hand, the appellants' land is adjacent on the southern side to the
existing depot and has access from the Chidambaram to Cuddalore
main road. Having regard to the purpose for which the land is sought
to be acquired, namely, expansion of existing depot, particularly, for a
workshop, the appellants' land is definitely more suitable. Pertinently,
in their objections, the appellants have not challenged the public
purpose for the acquisition of their land. In what we have indicated
above, it cannot be said that suitability aspect has not been
reasonably or rationally considered by the Government.
25. Then comes the second contention of Mr. Pallav
Shishodia. He relied upon the decision of this Court in the case of
Raja Ram4 and submitted that the erstwhile Corporation or the
successor Tamil Nadu State Transport Corporation (TNSTC) is a
`government company' for the purposes of the Act and, therefore,
compliance with the provisions of Part VII of the Act had to be made
in order to lawfully acquire any land for its purpose. In this regard, he
referred to the averment made in the reply to I.A. No. 3 of 2003 that
TNSTC was the beneficiary of the acquisition; it is they who have
remitted the extent of compensation quantified by the authorities
under the land acquisition.
13
26. With regard to the above contention of Mr. Pallav
Shishodia, it is enough to say that it overlooks Section 3(cc) and
Section 3(e) of the Act, substituted by Act 68 of 1984. The definition
of `company' in Section 3(e) after substitution in 1984 is as follows:
"S.3(e).- the expression "company" means--
(i) a company as defined in section 3 of the
Companies Act, 1956 (1 of 1956), other than a
Government company referred to in clause (cc);
(ii) A society registered under the Societies
Registration Act, 1860 (21 of 1860), or under
any corresponding law for the time being in
force in a State, other than a society referred to
in clause (cc);
(iii) A co-operative society within the meaning of
any law relating to co-operative societies for the
time being in force in any State, other than a
co-operative society referred to in clause (cc)".
Section 3(cc) of the Act defines the expression "corporation owned or
controlled by the State" as follows :
"S.3(cc).- the expression "corporation owned or
controlled by the State" means any body corporate
established by or under a Central, Provincial or State Act,
and includes a Government company as defined in section
617 of the Companies Act, 1956 (1 of 1956), a society
registered under the Societies Registration Act, 1860 (21 of
1860), or under any corresponding law for the time being in
force in a State, being a society established or
administered by Government and a co-operative society
14
within the meaning of any law relating to co-operative
societies for the time being in force in any State, being a
co-operative society in which not less than fifty-one per
centum of the paid-up share capital is held by the Central
Government, or by any State Government or Governments
or partly by the Central Government and partly by one or
more State Governments;"
27. That Corporation and the TNSTC fall within the definition
of Section 3(cc) is not in dispute. Both may not have been divested of
their character as a government company but sub-clause (i) of
Section 3(e) excludes a government company from the definition of
company. Part VII (Sections 38 to 44B) of the Act provides for
acquisition of land for companies. In view of the definition of the
`company' in Section 3(e) which excludes government company, the
Corporation or for that matter its successor TNSTC does not fall
within the definition of the `company' and, therefore, is not covered by
Part VII of the Act at all.
28. In Raja Ram4, the definition of `company' in Section 3 (e)
of the Act prior to its substitution fell for consideration. The definition
of `company' under consideration read as follows :
"the expression "company" means a company registered
under the Indian Companies Act, 1890 or under the
(English) Companies Acts, 1862 to 1882 or incorporated by
an Act of Parliament of the United Kingdom or by an Indian
law, or by Royal Charter or Letters Patent and includes a
society registered under the Societies Registration Act,
1860, an a registered society within the meaning of the
Cooperative Societies Act, 1912, or any other law relating
15
to cooperative societies for the time being in force in any
State."
29. It was in the context of the above definition that this Court
held in Raj Ram4 that the Food Corporation of India was not divested
of its character as a company within the meaning of definition of
clause (e) of Section 3 of the Act. As noticed above, the definition of
`company' has undergone complete change and the government
company has been expressly excluded from the expression
`company' for the purposes of the Act.
30. For the above reasons, it has to be held that Part VII of
the Act has no application to the present case as the acquisition of
land is not for a `company' as defined in Section 3(e).
31. Mr. Pallav Shishodia, learned senior counsel also urged
that the appellants are migrants from Gujarat. They have settled in
Chidambaram about thirty years back and the livelihood of the entire
family of the appellants which comprised of about 40 members is
dependant on the saw mill existing on the subject land. Having
regard to these facts, he would submit that we invoke our jurisdiction
under Article 142 of the Constitution and declare the acquisition of the
appellants' land bad in law to do complete justice. There is no doubt
that by compulsory acquisition of their land, the appellants have
16
been put to hardship. As a matter of fact, the RDO was alive to this
problem. In his report dated September 14, 1989, the RDO did
observe that the land owners have spent considerable money to raise
the level of the land for constructing compound wall and running saw
mill. He was, however, of the opinion that the appellants' land was
very suitable for the expansion of the depot and the suitable
compensation can be paid to the land-owners to enable them to
purchase an alternative land. The appellants, however, proceeded to
challenge the acquisition. The litigation has traversed upto this Court
and taken about 22 years. The public purpose has been stalled for
more than two decades. Being the Highest Court, an extraordinary
power has been conferred on this Court under Article 142 to pass any
decree, order or direction in the matter to do complete justice
between the parties. The power is plenary in nature and not inhibited
by constraints or limitations. However, the power under Article 142 is
not exercised routinely. It is rather exercised sparingly and very
rarely. In the name of justice to the appellants, under Article 142,
nothing should be done that would result in frustrating the
acquisition of land which has been completed long back by following
the procedure under the Act and after giving full opportunity to the
appellants under Section 5-A. The possession of the land has also
17
been taken as far back as on July 25, 2001. The appellants made
an application (I.A. No. 2 of 2002) for direction to the respondents not
to interfere with the functioning of the saw mill and permit them to use
the saw mill but this Court in its order dated May 8, 2002 only said
that the saw mill shall not be demolished till further orders. No
permission was granted to the appellants to use the saw mill. In other
words, for more than ten years the saw mill is closed after
possession was taken over from the appellants. In the circumstances,
this is not a case fit for exercise of power under Article 142 and
declare the acquisition of the appellants' land bad although the
acquisition proceedings have been completed in accordance with
law.
32. Lastly, the learned senior counsel invited our attention to
the application (I.A. No. 4) wherein the appellants offered for
amicable settlement by expressing their readiness and willingness to
give an area of land admeasuring 13250 square feet out of the total
land of 1.45 acres (i.e. 1 acre and 19445 sq. ft.) free of cost to the
Corporation. The offer is not acceptable to Mr. B. Balaji. He submitted
that such a small area is of no use for expansion of the existing
depot. We do not find any unreasonableness in the submission of
18
the counsel that an area of 13250 square feet would not meet the
purpose for which the appellants' land has been acquired.
33. In view of the above, there is no merit in the appeal and it
is dismissed. I.A. No. 4 and other pending applications, if any, stand
disposed of. No costs.
...........................J
(R.M. LODHA)
......................................J.
(JAGDISH SINGH KHEHAR )
NEW DELHI
NOVEMBER 2, 2011.
19
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