CIVIL APPEAL No. 9871 OF 2018 (Arising out of S.L.P. [C] NO.23292 OF 2008) WITH C.A. NO.9874 OF 2018 @ SPECIAL LEAVE PETITION [C] NO.9281 OF 2014 C.A. NO. 9875 OF 2018 @ SPECIAL LEAVE PETITION [C] NO.9284 OF 2014 C.A. NO.9876 OF 2018 @ SPECIAL LEAVE PETITION [C] NO.9288 OF 2014 C.A. NO. 9877 OF 2018 @ SPECIAL LEAVE PETITION [C] NO.9289 OF 2014 C.A. NO. 9878 OF 2018 @ SPECIAL LEAVE PETITION [C] NO.9287 OF 2014 C.A. NO. 9879 OF 2018 @ SPECIAL LEAVE PETITION [C] NO.9285 OF 2014 C.A. NO. 9880 OF 2018 @ SPECIAL LEAVE PETITION [C] NO.9283 OF 2014 AND C.A. NOS. 9872­73 OF 2018 @ SPECIAL LEAVE PETITION [C] NOS.22539­22540 OF 2008

24th September 2018

Petitioner Counsel: B. K. SATIJA [P-1]
Respondent Counsel: ASHUTOSH GARG [R-1] DINESH KUMAR GARG [R-1] ABHINAV MUKERJI [R-1] PROMILA [R-1]

Cases Cited :
Para 48: Jadab Singh & Ors. Vs. The Himachal Pradesh Administration & Ors. AIR 1960 SC 1008
Paras 60, 62: Sharda Devi Vs. State of Bihar, (2002) 3 SCC 705 : (2003) 3 SCC 128
Paras 60, 65: Meher Rusi Dalal Vs. Union of India, (2004) 7 SCC 362
Paras 60, 65: Ahad Brothers Vs. State of M.P., (2005) 1 SCC 545
Para 60: U.P. Awas Evam Vikas Parishad Vs. Gyan Devi, (1995) 2 SCC 326
Paras 67, 69, 70: Ram Chandra Singh Vs. Savitri Devi, (2003) 8 SCC 319
Para 68: Madhukar Sadbha Shivarkar Vs. State of Maharashtra, (2015) 6 SCC 557
Para 69: Jai Narain Parasrampuria Vs. Pushpa Devi Saraf, (2006) 7 SCC 756
Para 69: Vice Chairman, Kendriya Vidyalaya Sangathan, and Anr. Vs. Girdhari Lal Yadav, (2004) 6 SCC 325
Paras 69, 70: State of A.P. and Anr. Vs. T. Suryachandra Rao, (2005) 6 SCC 149
Para 69: Ishwar Dutt Vs. Land Acquisition Collector and Anr., (2005) 7 SCC 190
Para 69: Lillykutty Vs. Scrutiny Committee, SC & ST Ors., (2005) 8 SCC 283
Para 69: Chief Engineer, M.S.E.B. and Anr. Vs. Suresh Raghunath Bhokare, (2005) 10 SCC 465
Para 69: Smt. Satya Vs. Shri Teja Singh, (1975) 1 SCC 120
Para 69: Mahboob Sahab Vs. Sayed Ismail, (1995) 3 SCC 693
Para 69: Asharfi Lal Vs. Koili, (1995) 4 SCC 163
Para 70: Dr. Vimla Vs. Delhi Administration, 1963 Supp (2) SCR 585
Para 70: Indian Bank Vs. Satyam Febres (India) Pvt. Ltd., (1996) 5 SCC 550
Para 70: S.P. Changalvaraya Naidu Vs. Jagannath, (1994) 1 SCC 1
Para 70: Roshan Deen Vs. Preeti Lal, (2002) 1 SCC 100
Para 70: Ram Preeti Yadav Vs. U.P. Board of High School and Intermediate Education, (2003) 8 SCC 311
Para 70: Ashok Leyland Ltd. Vs. State of T.N. and Anr., (2004) 3 SCC 1
Para 70: Gowrishankar Vs. Joshi Amba Shankar Family Trust, (1996) 3 SCC 310
Para 70, 72: S.P. Chengalvaraya Naidu Vs. Jagannath, (1994) 1 SCC 1
Para 70: Lazarus Estate Ltd. Vs. Beasley (1956) 1 QB 702
Para 71: A.V. Papayya Sastry Vs. Govt. of A.P., (2007) 4 SCC 221
Para 73: K.K. Modi Vs. K.N. Modi, (1998) 3 SCC 573
Para 74: Ujjagar Singh Vs. Collector, Bhatinda, (1996) 5 SCC 14
Para 75: State of H.P. Vs. Harnama, (2004) 13 SCC 534
Para 76: Madan Kishore Vs. Major Sudhir Sewal, (2008) 8 SCC 744

JUDGEMENT

ARUN MISHRA, J.

1. Leave granted.

2. The question involved is whether after the abolition of Jagirs by virtue of the Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act, 1953 (hereinafter referred to as ‘the Abolition Act’), the late Jagirdar or his legal representatives could have claimed the compensation on the land acquisition being made particularly when land has vested in the State of Himachal Pradesh, the land was not under the personal cultivation, and particularly when they have received the compensation under the Abolition Act, apart from that had also received the compensation under the provisions of H.P. Ceiling on Land Holdings Act, 1972 (hereinafter referred to as “the Ceiling Act”).

3. The facts project how a litigant has filed a slew of litigations one after the other and faced with a situation that it was likely to be dismissed, he would withdraw it; again, file it on new grounds, or having lost it, would withdraw it again at appellate stage, and in the meantime, in different proceedings by playing fraud, getting unjust enrichment by receiving compensation at the expense of public exchequer.

4. The facts in the instant case reveal that Late Rajinder Singh, son of erstwhile ruler Late Maharaja Padam Singh was Jagirdar of the land, and thus was recorded as owner of thousands of bighas of land in Tehsil Rampur, Sub­Tehsil Nankhari and Tehsil Rohru of erstwhile Mohasu district which is presently a part of Shimla district and Tehsil Nichhar of district Kinnaur of State of Himachal Pradesh.

5. The land in village ‘Jhakri’ of 393 khasra numbers admeasuring 1011 bighas, 6 Biswas was declared to have vested in the State under section 27 of the Abolition Act and the intermediary Rajinder Singh as per order dated 14.11.1962 was permitted to retain only 64.12 bighas of land which was under his personal cultivation. In Himachal Pradesh, one acre comprises 5 bighas of land. Vide order dated 19.9.1964 passed by the Assistant Collector, the order of vesting was modified to the extent that he was given 13 bighas 12 Biswas of land comprised in Khatauni No.1 out of 14 Khasra numbers, i.e., 14, 122, 125, 142, 143, 165, 212, 238, 241, 288, 423, 494, 511 and 512. Some of the aforesaid survey numbers were unmeasured. However, the fact remains that the total area which was found to be under personal cultivation, was 13 bighas, 12 Biswas.

6. Late Jagirdar Rajinder Singh assailed the order of vesting dated 14.11.1962 by filing W.P. [C] No. 15/1962. Before the Judicial Commissioner who used to hear writ petitions at the relevant time, held that the land which was not under personal cultivation, would not vest in the State unless and until compensation was paid.

7. Pursuant to the order of vesting, the competent authority under the Abolition Act i.e. Compensation Officer, Mahasu, vide order dated 12.4.1966 determined the compensation of Rs.28,019.45. Since the Zamindar had already received an amount of Rs.1,703.25 in excess from the tenants who had acquired proprietary rights under section 11 of the Abolition Act, same was deducted from the amount and the amount payable was found to be Rs.26,316.20 and it was actually paid on 6.5.1966.

8. As against the order passed by the Compensation Officer dated 12.4.1966, the appeal was preferred before the District Judge, Mahasu. The appeal was partly allowed and the direction which was made of deduction of Rs.1703.25 was set aside and the payment of entire Rs.28,019.45 was ordered without aforesaid deduction.

9. As against the decision of the Judicial Commissioner dated 14.11.1962, the matter travelled to this Court in C.A. Nos.1186­ 1191/1966. This Court held that vesting under section 27, the right, title and interest of the owner in landholding in case land revenue of the holding exceed Rs.125 per year, would vest free from all encumbrances in the State Government and the vesting is automatic and without being contingent on the happening of any other event. Compensation and rehabilitation grant can be determined and paid later. This Court in the order dated 17.9.1969 made the following observations:
“It is apparent that S.27 deals with lands the annual land revenue of which exceeds Rs.125 per year. It says in unequivocal terms that the right. title and interest of the owner in such lands shall be deemed to have been transferred land vested in the State Government free from all encumbrances. This essentially means that on the enforcement of the Act the vesting takes place automatically and without being contingent on the happening of any other event. The High Court in the full Bench decision referred to above took the same view and was right in observing that wherever the legislature intended to defer the date of vesting such as in S.11 and 15 clear provisions were made to that effect and the reasons thereof were obvious. In 8.11 the tenant had to exercise the option to acquire the right. title and interest of the landowner. The vesting of such rightswould necessary depends on the time of the exercise of such option. Similarly in 8.15. a future date had to be provided in view of its special provisions. We do not consider that the provisions of sub S.53 (3) and (4) of S.27 contain any indication that the vesting of rights of ownership in the Government would be dependent on the determination of compensation.
The vesting takes place under sub­S. (1) immediately on the enforcement of the Act. Thereafter, under sub­S. (3) compensation has to be paid to the landowner in accordance with the provisions mentioned therein. Under sub 8(4) the State Government shall transfer the rights of ownership to a tenant who cultivates the land only on payment of compensation. That cannot prevent or have any bearing on the vesting which takes place under sub S(1). The payment of rehabilitation grant which is provided by sub 8(5) to a small landowner strengthens the reasoning in favour of vesting being automatic and immediate under sub S(1). There can be no manner of doubt that in respect of land which falls within the ambit of S.27(1) transfer and vesting of the rights of ownership to and in the Government takes place immediately on the enforcement of the Act and thereafter compensation and rehabilitation grant are payable.
For all these reasons, the appeals are allowed and the decision of the learned Judicial Commissioner is set aside. The cases are remanded to the High Court for disposal of the questions which were not decided. In view of the entire circumstances, there will be no order as to costs.”
(emphasis supplied)
This Court remitted the matter to the High Court for disposal of the questions which were not decided. In particular, the question of personal cultivation of Jagirdar as that land was only saved from vesting.

10. Faced with the observation made by this Court that the land which is not under personal cultivation vested automatically in the State and as after remand the High Court was required to decide the matter in view of the said observations of this Court, Rajinder Singh prayed for withdrawal of W.P. No.15/1962 with permission to file a civil suit. The High Court vide order dated 9.7.1970 permitted to withdraw the writ petition with liberty to file a civil suit. Thus, the mandate of this Court in the order dated 17.9.1969 to decide the question of personal cultivation was avoided by the withdrawal of writ petition.

11. Late Rajinder Singh then filed Civil Suit No.15/1970 in which he took a somersault and prayed for a declaration of title and sought a declaration that the suit property was not the ‘land’ under Section 2(5) of the Abolition Act and as such it did not vest in the State of Himachal Pradesh. The case of personal cultivation was abandoned by him. The trial court framed the issues; whether the plaintiff was in possession of the land in dispute and whether the disputed land, in whole or in part, vested in the State Government? The issue was also framed whether the land in dispute is covered under the definition of ‘land’ in the Abolition Act. What is the effect of the decision dated 12.4.1966? The issue was also framed with respect to the finality of the decision of the Compensation Officer dated 12.4.1966, and whether the suit was barred as the order had attained finality. The trial court also framed the issue with respect to the aspect whether the plaintiff had received compensation of the part of the area in dispute and, as such, estopped from filing the suit.

12. The suit 15/1970 filed in the High Court was dismissed on 26.6.1973. The High Court has held that the suit land was within the purview of the term ‘land' as defined in the Abolition Act and the plaintiff was not in the personal cultivation of the said land. Hence, the entire land had vested in the State Government under section 27 of the Act on 26.1.1955, the date on which the Abolition Act came into force. It was held that the plaintiff was not the owner of the said land. The High Court has recorded the following findings: "25. In this view of the matter I hold, that the land in dispute is decidedly land as defined in the Abolition Act and the plaintiff not being in the personal cultivation of such land, the entire of it has vested in the State Government under section 27 of the Act. The two issues are thus decided against the plaintiff.
41. In view of my decision given above for respective issues, the relief of declaration cannot be granted. The disputed land has automatically vested in the State Government under section 27 on 26th January 1955, when the Abolition Act came into force. As such the plaintiff is not the owner of such land. Since the plaintiff has not proved his "personal cultivation" for such land, the same is not exempt from vestment under sub­section (2) of section 27. The executive instructions issued by the defendants, for this reason, cannot be considered to be wrong or illegal. The plaintiff is not entitled to any relief."
The High Court in C.S. No.15 of 1970 also decided issue Nos.5, 11 and 12 and held that the suit was expressly barred by estoppel and also by res judicata. The suit being for the mere declaration was not maintainable and was barred under section 34 of the Specific Relief Act, 1963.

13. Rajinder Singh filed the appeal before Division Bench of the High Court as against the judgment and decree dated 26.6.1973 of Single Judge. The first appeal was ultimately withdrawn by making a statement by his counsel that the disputed land had been acquired under the provisions of section 8 of the H.P. Ceiling on Land Holdings Act, and the compensation had been paid to the appellant. In view of the subsequent event, prayer was made to withdraw the suit and appeal as it had become infructuous. However, the High Court on 23.6.1986 permitted the appellant to withdraw the suit with permission to file a fresh suit in respect of the subject matter of the suit on the same cause of action in case there was any necessity to file such a subsequent suit, and the appeal was dismissed as infructuous. It is apparent that the appellant has accepted the factual position that land was declared surplus and he has received compensation of the disputed land under the provisions of the Ceiling Act, 1972. From which actual factual position and admission, he has tried to wriggle out falsely in the instant matter.

14. The withdrawal of suit C.S. No.15 of 1970 was aimed at defrauding the court as the trial court has held that the suit land was not personally cultivated as such, it had vested automatically in the State Government and it was the ‘land’ as defined in the Abolition Act and the plaintiff was estopped from filing a suit. During the pendency of the aforesaid matter in spite of the land having been vested in the State, under Abolition Act compensation was obtained second time under the provisions of the Ceiling Act, though the compensation was earlier too paid to him as determined by the Compensation Officer in 1966.

15. The Ceiling Act was enacted in the year 1972 and it provided for consolidation of holding and amend the laws relating to ceiling on land holdings. Section 11 of the Act of 1972 provided that the surplus land would vest in the State, and would be deemed to have been acquired by the State Government free from all encumbrances for a public purpose on payment of a certain amount.

16. On 10.6.1980 the Collector (Ceiling) that is the Sub­Divisional Officer declared 10,027.5 bighas of land as surplus. It was not questioned by Rajinder Singh. Compensation was determined and also paid. The reference was made by the department that the additional land was required to be declared as surplus. On 5.9.1985, Financial Commissioner (Appeals) decided references and did not interfere in the aforesaid declaration of land as surplus, however conclusively held that additional land was required to be declared surplus. The declaration of 10,027.5 bighas of land as surplus vide order dated 10.6.1980 was not sufficient. The case was accordingly remanded. The limited remand order also attained finality. Ultimately order was passed by the Collector, Rampur Bushahr, Distt. Shimla, on 10.11.1993. It was observed that the compensation of Rs.57,888.80 had been received for the land that had already been declared surplus i.e. 10027.5 bighas. It was also held that in the order dated 10.6.1980, two units of permissible area to the landowner and his minor son were erroneously allowed, therefore, the additional area of one unit given to minor son was declared as surplus. It was held that family of Rajinder Singh was entitled only for one unit and the final draft statement was accordingly published.

17. The area in question has also declared a surplus in 1980 and acquired by State under section 11 of Ceiling Act before the land acquisition was started in 1987 and the order dated 10.6.1980 declaring 10,027.5 Bighas of land as surplus so far as Rajinder Singh was concerned attained finality as it was not questioned by him.

18. As against the order dated 10.11.1993 declaring additional approximately 9000 bighas of land as surplus, the appeal was filed, the same was dismissed by the Commissioner on 30.8.1996. Against the said appellate order revision was filed before the Financial Commissioner and the same was dismissed on 18.1.2002. On 1.8.2013 the Commissioner passed an order upholding the mutation order against which revision was filed before the Financial Commissioner. Ultimately the review petition was also dismissed as not maintainable which the appellant is stated to have questioned.

19. With respect to the present acquisition proceedings out of which appeal arises, notification under section 4 was issued on 9.1.1987 for the acquisition of land for H.P. State Electricity Board for construction of an approach road at Jhakri. The Electricity Board was later on replaced by Nathpa Jhakri Power Corporation (NJPC) and later on by the appellant Satluj Jal Vidyut Nigam. The Land Acquisition Collector passed an award on 24.2.1989 determining the rate of compensation at the rate of Rs.20,000 per bigha. However, it was observed in the award that there was a dispute about the ownership of Rajinder Singh. Hence, it was ordered that compensation should not be disbursed in view of the pendency of ceiling proceedings. It be deposited in a bank instead of court. A reference was sought under section 18 of the Land Acquisition Act, 1894 (hereinafter referred to as ‘the LA Act’). The Reference Court vide award dated 23.7.1991 determined the compensation at the rate of Rs.1 lakh per bigha.

20. Another acquisition proceeding was initiated by issuance of notification under section 4 which was published in the Official Gazette for the acquisition of land for the purpose of construction of residential colony for the Jhakri Hydel Power Project. On 11.7.1988 amended notification under section 4 was issued. On 27.2.1991 award was passed according to the classification of the land. On 4.7.1991, a supplementary award was passed. The references were made to the Court. The Reference Court awarded Rs.1 lakh per bigha vide award dated 27.3.1997.

21. As against the award passed by the Reference Court appeals were preferred before the High Court. It was contended that the land acquisition proceedings were commenced in collusion with the Government officials. The land stood vested in the Government under the Abolition Act. There was no question of acquiring the same. A prayer was made in the appeals to file additional documents under Order 41 Rule XXVII and to amend the written statement. The High Court dismissed the said applications along with appeals.

22. As against the dismissal of the appeals and the applications, C.A. Nos.3741­52 and 3753­57 of 2001 were filed in this Court by the appellant. They were decided on 3.5.2001. The judgment of the High Court was set aside. The applications under Order 41 Rule XXVII and Order 6 Rule XVII were allowed. This Court in the final order dated 3.5.2001 observed:
“In course of hearing of the appeals it was fairly agreed by learned counsel for the parties that keeping in view the facts and circumstances of the case and the contentions raised it will be apt and proper to remand the matter to the High Court for fresh disposal taking into consideration the averments in the amendment petition and the documents filed as additional evidence. Such an order in the fact situation of the case will serve the ends of justice.
In view of the agreed position fairly stated by learned counsel for the parties and in our view, rightly, we allow these appeals, set aside the judgment of the High court which is under challenge; allow the petitions filed by the appellants under Order 6 Rule XVII CPC and under Order 41 Rule XXVII CPC and remand the matter to the High Court for fresh disposal in accordance with law after giving opportunity of hearing to the parties.”

23. After the case was remitted to the High Court, appeals have been dismissed vide impugned judgment and order dated 25.2.2008. Aggrieved thereby the appeals have been preferred by Satluj Jal Vidyut Nigam.

24. The Reference Court decided 72 land reference cases wherein it was held that the respondents were neither the owner nor in possession of the land under acquisition, and the land in question stood vested in the State of Himachal Pradesh. The award was challenged by way of Regular First Appeal and the same is stated to be pending in the High Court.

25. Civil Appeals arising out of SLP [C] No.9281/2014 arise out of a common judgment dated 18.9.2013 passed by the High Court. Writ petitions were filed before the High Court by one of them by Sita Devi & Ors. being CWP No.2931/2010 with respect to a redetermination of compensation. They were decided by a common judgment and order dated 18.9.2013 and it has been held that notwithstanding the fact that Rajinder Singh may not have a title, the status of the appellants had been held to be that of bona fide transferees earlier and that order has attained finality and was not questioned in appropriate proceedings. Thus, they were entitled to the re­determination of compensation under section 28A of the LA Act. Satluj Jal Vidyut Nigam has filed the appeals impugning the judgment in the year 2014.

26. It was urged on behalf of the appellant that the respondent Rajinder Singh has received compensation 3 times with respect to the same land. Firstly, in 1966­67 he had received a sum of Rs.28,019 as compensation due to the vesting of entire land in the State Government and the Compensation Officer had determined the same under the Abolition Act. The land, in any event, had vested in the State. The second time the compensation of Rs.57,388/­ had been received in the year 1980­81 under the Ceiling Act, 1972. For the third time, the respondent has received compensation in a sum of Rs.60 lakhs. The respondent has committed a serious fraud. It was also urged that Rajinder Singh has filed W.P. No.256/1979, the High Court dismissed the writ petition and observed that the respondent has acted unfairly knowing fully well that the land had already vested in the State and made other observations regarding successive litigations preferred by the respondent and the withdrawal of RFA No.9/1973.

27. Learned Additional Solicitor General appearing on behalf of the appellants further urged that as per the principle, fraud vitiates, the respondents are not entitled to any compensation. They could not be permitted to take advantage of the continuance of wrong entry. There was no title left with Rajinder Singh as the land had vested automatically in the State under the Abolition Act. The LAO had also directed not to pay the compensation owing to the ceiling case in which Late Rajinder Singh has already received the compensation and land had been declared surplus. The question involved is not of determination of title under sections 18 and 30 of the LA Act but the title stood extinguished is apparent from Section 27 and ceiling proceedings of which evidence has been permitted to be adduced by this Court. Even the LAO and the Reference Court have ordered that there was no title with Rajinder Singh, as such, compensation was not to be paid. The effect of previous proceedings and the overall conduct of Rajinder Singh ought to have been taken into consideration by the High Court. The observation made by the High Court that it could not go into the question of the title of Rajinder Singh in the proceedings is wholly incorrect as it is the serious case of fraud, the title has already been adjudicated conclusively and lost in other proceedings. It was not a case of an adjudication of title in the present proceedings. The effect of Section 27 proceeding and that of ceiling Act case was required to be considered. The High Court could not have permitted the perpetuation of fraud while dismissing the first appeal after this Court has remitted the matter to it.

28. It was further urged that the observation made by the LAC in his award in 1989 not to make payment of compensation, due to ceiling case was wholly legal and valid. Even the Reference Court has held in the cases that there was no title with the respondents and the appeal against the same R.F.A. is pending in the High Court. The High Court ought to have exercised the supervisory power as there was an error apparent on the face of the record and to prevent abuse of process of law. When the principle of ‘fraud vitiates’ is attracted, the label of proceedings is not material and the court is bound to look into same and relegation to a remedy of the civil suit could not be said to be appropriate in the facts of the instant case.

29. It was contended by learned senior counsel on behalf of LRs. of Late Rajinder Singh that the question of the pre­existing right of the State cannot be gone into in these proceedings. The land in question did not vest in the State under the Abolition Act. Even if the amendment of pleadings and additional evidence had been allowed by this Court, the pre­existing right of the State over the property cannot be gone into in proceedings under section 18 or 30 of the LA Act. It was not open to the State Government to question the title of the land­ owners in reference proceedings. The State had filed an appeal against the reference order which was dismissed on 3.6.2004 as barred by limitation. It was also contended that the land did not vest in the State as it was under personal cultivation. Under the Abolition Act, there was vesting of land which was under tenancy only. Land in question was not within the purview of the term ‘land' as defined in section 2(5) in the Abolition Act, as such, there was no vesting of the same in the State. Though, 1011 bighas and 6 Biswas of land in village Jhakri vested in the State and mutation­order was made on 27.2.1962. However, certain other lands which were under personal cultivation had been excluded, later on, the Compensation Officer also passed an order determining compensation on 12.4.1966 which was in respect of tenancy land and not in respect of land under personal cultivation or the land not assessed to land revenue. Tenants have been given the rights over the land mentioned in the order dated 12.4.1966 passed by the Compensation Officer.

30. It was also contended that the land under personal cultivation was mentioned in the revenue records as ‘Banjar Kadim’ which could not be said to be ‘land’ within the meaning of Abolition Act nor it vested in the State Government. The area of Village Jhakri which was left with Rajinder Singh was 2119 bighas and 19 Biswas. The said land did not vest in the State. After remand of the case from this Court under Section 27 of Abolition Act, the writ petition was withdrawn and civil suit No.15/1970 was filed and the same was dismissed by the High Court. The suit was also withdrawn in appeal as such there was no adjudication of the rights in the previous rounds of proceedings.

31. Learned counsel on behalf of the respondents further contended that at the time of land acquisition neither the land was finally declared surplus nor possession was taken under the Ceiling Act, as such it did not vest in the State unless the possession was taken.