UNION OF INDIA v. PRAMOD GUPTA (D) BY LRS. AND ORS

Citation: [2005] SUPP. 3 S.C.R. 48

Court: Supreme Court of India

Bench: ASHOK BHAN, S.B. SINHA

Case summary

UNION OF INDIA v. PRAMOD GUPTA (D) BY LRS. AND ORS.pdf

Judgment text

UNION OF INDIA " v. PRAMOD GUPTA (D) BY LRS. AND ORS. SEPTEMBER 7, 2005 ,, [ASHOK BHAN AND S. B. SINHA, JJ. ] ' Land Acquisition: land Acquisition Act, 1894: Sections 4, 6, 18, 23, 25 and 54. Compensation-Market value-Methods to determine-Principle ofres judicata-Applicability of-Notification to acquire lands for public purpose ofconstructing a Universit;~A portion ofland admittedly containedminerals- Reference Court awarded compensation for the lands and for minor mineral viz. China Clay-High Court dismissed appeals filed by the Central Government on the ground that judgments and awards granting compensation for the \. lands acquired in neighbouring villages which were upheld by it in appeal would attract principle of res judicata-Central Government's application under 0. 41 R. 27 CPC for bringing on record a sale deed rejected by High Court-Held: The principle ofres judicata would apply only when the !

is was inter-parties and had attainedfinali~Even if the Central Government had not filed any appeal against the earlier judgments ofthe High Court it would not be estopped and precluded from raising the same question in a different proceeding-The best method to determine compensation would be the amount which a willing purchaser would pay to the owner-Hence, High Court not justified in rejecting the application under 0. 41 R. 27 CPC-The area ofthe land, the nature thereof. advantages and disadvantages occurring therein are ·the relevant factors for determining the market value ofthe land acquired- Hence, matter remitted to High Court for fresh consideration.

Sections 28 and 34-land acquisition-Compensation-Interest on enhanced compensation-Proceedings between the parties remained stayed for a certain period-Claimants agreed not to claim interest on the enhanced compensation, ifany, during the period ofstay-However, High Court awarded interest for the said period-Correctness of-Held: Grant ofinterest under S. 28 is discretionary-Only rate of interest is mandatory-Even a mandatory provision of a statue can be waived-Once a claimant waived his right to U. 0. 1. v. PRAMOD GUPTA (D) BY LRS. 49 ... claim interest with a view to obtaining an order ofstay he is not entitled to any interest for the period ofstay-High Court judgment set aside.

Constitution ofIndia, 1950: ~ Article 142-Complete justice between the parties-Land acquisition under Land Acquisition Act, 1894-0rders disallowing application for amendment filed by Central Government as also grant ofpermission to adduce j additional evidence by the claimants not questioned-Effect of-Held: As a large amount ofpublic money was involved in the land acquisition said orders set aside with a view to doing complete justice between the parties. Two notifications dated 24. 10. 1961 and 23. 0l. 1965 were issued for acquisition of the lands measuring ll05. 04 bighas and 3895. 07 bighas respectively for the public purpose of construction of a University. portion of the land admittedly contained minerals. Two awards were made on 2. 12. 1967 and 8. 04. 1969. The Reference Court, under Section 18 of the Land Acquisition Act, 1894, awarded compensation @ Rs. 18,000 per bigha and Rs. 12,000 per bigha respectively. The Reference Court further granted compensation @ Rs. 10.

000 per bigha for minor mineral i. e. China Clay. The respondents were claiming their right, title and interest in the lands in- question from one 'GS' who was said to be the proprietor of Pottery Works having a non-occupancy tenancy right therein. Several proceedings had been initiated in respect of right, title and interest of respective parties after coming into force of the Delhi Land Reforms Act, 1954. The said 'GS' had allegedly been declared Bhumidhar by the Deputy Commissioner of Delhi. On appeal, the High Court dismissed the appeals filed by the > appellants holding that the judgments and awards granting compensation for the lands acquired in the neighbouring villages which were upheld by it in different appeals, would attract the principle of res judicata.

The High Court also refused to entertain an application filed by the appellant under Order 41 Rule 27 of the Code of Civil Procedure, 1908 for bringing on record a sale deed whereby; one of the respondents had obtained assignment of I/4th share of the amount of compensation. The High Court fixed the amount of compensation in respect of land with china clay and without china clay @ Rs. 56 per sq yd and Rs. 30 per sq yd respectively in relation to notification dated 24. 10. 1961 and @Rs. 98 per sq yd and Rs. 72 per sq yd in relation to notification dated 23. l. 1965. The High Court also awarded interest for the period during which .. the proceedings were stayed at the instance of the respondents on the ground that grant of interest under Sections 28 and 34 of the Act being mandatory in nature could not be waved. For computing the market value of the lands in question the High Court proceeded on the basis of cost for development of the lowest category of residential plots.

Hence the appeal. Disposing of the appeal, the Court HELD: I. I. While determining the amount of compensation payable in respect of the lands acquired by the State, indisputably the market value therfor has to be ascertained. There exist different modes therefor. [66-D-E) 1. 2. The best method would be the amount which a willing purchaser would pay to the owner of the land. In absence of any direct evidence, the court, how~ver, may take recourse to various other known methods. Evidences admissible therefor inter alia would be judgments and awards passed in respect of acquisitions of lands made in the same village and/or neighbouring villages. Such a judgment and award in the absence of any other evidence like deed of sale, report of expert and other relevant evidence would have only evidentiary value. [66-F-G) 2. 1. Therefore, the contention that as the appellant was a party to the earlier awards would not by itself be a ground to invoke the principles of res judicata and/or estoppel.

Despite such awards it may be open to the appellant to question the entitlement of the claimants-respondents to the amount of compensation and/or the statut~ry limitations in respect thereof. It would also be open to the appellant to raise other contentions relying on or on the basis of other materials brought on the records. It was also open to the appellant to contend that the lands under acquisition are not similar to the lands in respect whereof judgments have been delivered. The area of the land, the nature thereof, advantages and disadvantages occurring therein amongst others would be relevant factors for determining the actual market value of the property although such judgments/awards, if duly brought on records, would be admissible in evidence. (66-G-H; 67-A-B( 22.

Even if the appellant had not preferred any appeal against the earlier judgment and award, it would not be estopped and precluded from raising the same question in a different proceeding as in a given case it is permissible in law to raise the same keeping in view larger public interest. U. 0. 1. v. PRAMOD GUPTA (D) BY LRS. 51 Government ofWest Bengal v. Tarun K. Roy, [2004] l SCC 347, relied on. Rameshwar Solanki v. Union ofIndia, 57 (1995) DLT 410; Gaon Sabha v. Nathi, JT (2004) 4 SC 36 and Sardar Amarjit Singh Kalra v. Pramod Gupta, [2003[ 3 SCC 272, referred to. 3. 1. The principle of res judicata would apply only when the lis was inter-parties and had attained finality in respect of the issues involved. The said principle will, however, have no application inter alia in a case where the judgment and/or order had been passed by a court having no jurisdiction therefore and/or in a case involving pure question of law.

It will also have no application in a case where the judgment is not a speaking one. [68-B-C] 3. 2. The courts while determining the amount of compensation for the acquisition of land would be bound to take into consideration only the materials brought on records. However, factors which would be relevant for determining the amount of compensation would vary from case to case and no hard and fast rule can be laid down therefor. The principle of res judicata will, therefore, have no application in the fact of the present matter. [68-C-D[ 4. It may be true that the principles ofres judicata may be applicable in respect of the question of title but even for the said purpose it was obligatory on the part of the High Court to refer to the previous judgments whereupon reliance had been placed by the respondents for the purpose of arriving at a decision as to whether they have been rendered by a competent court or not.

The question as to whether a civil court will have jurisdiction in respect of declaration and/or cancellation of bhumidhari right was not adverted to by the High Court. [68-D-E-F] 5. From the impugned judgment of the High Court, it does not appear that it had taken into consideration the relevant factors, viz. , (i) implication of the provisions of the Delhi Land Reforms Act, 1954 vis-avis the nature of the land and/or the source of title; and (ii) the statutory effect as regards the claim of the respondent on the subsoil mineral right in the light of several existing statutes. [69-8-C] 6. The provisions of the Punjab Land Revenue Act, 1887 govern the rights of the tenants.

The original deeds under which the right of proprietorship, if any, said to be created in favour of one 'GS', in terms whereof she became occupancy tenant as also the deeds of sale/grants made • in favour of her predecessors have not been produced before this Court, in absence whereof it will not be prudent for this Court to venture to arrive at a conclusion as regards the nature of the right of the proprietor or the lessee as the case may be. Even the judgments and decrees passed by the ... civil courts and the revenue courts are not before this Court and, thus, this Court may only briefly indicate the legal position, the application whereof would depend on a finding of a court of competent jurisdiction as regards the nature and extent of right.. j70-F-G-H; 71-A-BI - F. F. Christian v. Tekaitni Narbada Koeri, (1914) CLJ (20) 527, Bageswari Charan Singh v. Kumar Kamakhya Narain Singh, AIR (1931) PC 30, Ras Behari Manda! v.

Raja Jagadish Chandra Deo Dhaubal Deb, (1936) IC (160) 114, Great Western Railways Co. v. Carpalla United China Clay Co. Ltd, (1910) AC 83, Jagat Mohan Nath Sah Deo v. Pratap Udai Nath Sah Deo, AIR (1931) PC 302, Gobinda Narayan Singh v. Sham Lal Singh, AIR (1931) PC 89, H. VLow & Co. Ltd v. Raja Bhadur Jyoti Prasad Singh, AIR (1959) PC 299, Onkannal Agarwal/av. Bireswar Hazra, AIR (1959) Cal. 195 and Bejoy Singh Dudhoria v. Surendra Narayan Singh, (1920) ILR (56) Cal. 1, approved. 7. The lands in question indisputably were governed by the Punjab Land Revenue Act, 1887 and the Punjab Tenants (Security of tenure) Act, 1950. The Punjab Land Revenue Act, 1887 is still applicable save and except those provisions which are inconsistent with the provisions of the Delhi Land Reforms Act. The claim of the respondents is stated in their counter-affidavit filed in this Court. The respondents claimed themselves to be occupancy-tenants. [80-8-Cf State ofPunjab v. Mis.

Vishkarma, JT (1993) (1) SC 448, Raja Rajinder Chand v. Mst. Sukhi, AIR (1957) SC 286, Shakuntala Devi v. Kam/a, JT (2005) 4 SC 315, Mathura Prasad Bajoo Jaiswal v. Dossibai N. B. Jeejeebhoy, (1970) 1 SCC 613, ChiefJustice ofA. P. v. L. VA. Dixitulu, [197912 SCC 34, Ashok Leyland Ltd. v. State of T. N. , 120041 3 SCC 1, Management of Mis. Sonepat Cooperative Sugar Mills Ltd. v. Ajit Singh, JT (2005) 2 SC 481, Ramnik Vallabhdas Madhvani v. Taraben Pravinlal Madhvani, (200411 SCC 497 and Municipal Corporation of Delhi v. International Security & Intelligence Agency Ltd, (20041 3 SCC 250, relied on. Prem Chand v. State ofHaryana, AIR (P & H) 50 (DB), Man Chand v. State ofHaryana, 74 (1972) PLR 508, Chunni Lal v. State·ofHarya_. na, 73 (1971) PLR 159, Gram Panchayat v. State ofHimachal Pradesh, AIR 1973 HP 7 and Bheemgari Bhaskar v. Revenue Divisional Officer, (2000) l ALT U. 0. l. v. PRAMOD GUPTA (D) BY LRS. 53 159, approved. 8. 1.

One of the modes of computing the market value may be based on a judgment or award in respect of acquisition of similar land, subject of course to such increase or decrease thereupon as may be applicable having regard to the accepted principle laid down therefor and as may be found applicable. (85-G-Hf Delhi Development Authority v. Bali Ram Sharma, (2004) 6 SCC 533, j land Acquisition Officer v. Nookala Rajamallu, (2003) 12 SCC 334, Lila Ghosh v. State ofW. B. , [2004) 9 SCC 337 and V. Hanumantha Reddy v. Land Acquisition Officer and Manda! R. Officer, (2003) 12 SCC 642, relied on. Atma Ram v. State ofPunjab, AIR (1959) SC 519, Hingri Rampur Coal Co. Ltd v. State ofOrissa, (1961) 2 SCR 537, India Cement Ltd. v. State of Tamil Nadu, [1990) I SCC 12, Bhagirath Ram Chandv. State ofPunjab, AIR (1954) Punj 167 and State ofPunjab v. Keshar Singh, AIR (1959) Punj. 8, referred to. 8. 2.

It is also well-settled that for the purpose of determining the market value of the acquired lands, the comparable sales method i. e. the lands sought to be compared must be similar in potentiality and nature may be adopted. [86-G-H) Panna Lal Ghosh v. Land Acquisition Collector, [2004) I SCC 467, relied on. 8. 3. It is also trite to state that the market value of agricultural land is lower than that of land suitable for commercial purposes. Om Prakash v. Union ofIndia, (2004) IO SCC 627, relied on. Shaji Kuriakose v. Indian Oil Corporation ltd. ,,(2001) 7 SCC 650, P. Ram Reddy v. Land Acquisition Officer, [1995) 2 SCC 305, K. S. Shivadevamma v. Assistant Commissioner and Land Acquisition Officer, (19961 2 SCC 62 and Basavva v. Sp!. Land Acquisition Officer, [1996) 9 SCC 640, referred to. 9. The High Court without assigning any reason discarded the method of valuation adopted by the reference court.

Before the reference court, the respondents only relied upon the judgments and awards granting compensation for acquisition of similar lands. The High Court ..... , while allowing an application for adduction of additional evidence referred only to certain notifications issued by the appellant in the year 1965 which were meant for the residential plots whereby allegedly the market value was stated to be 150 per sq. yd. for lands situated at Vasant Vihar wherefor certain deductions were made@ 12% per annum therefrom in respect of the lands acquired under the notifications dated 24. 10. 1961. There is no basis on which the High Court took recourse to the said method wholly ignoring the other materials on records. 190-C-D-E-F) Jawajee Nagnataham v. Revenue Divisional Officer, 11994) 4 SCC 595, Krishi Utpadan Mandi Samiti v. Bipin Kumar, 12004) 2 SCC 283, DDA v. Joginder S. Monga, (20041 2 SCC 296 and Shakuntalabai v. State of Maharashtra, 11996) 2 SCC 152, referred to. 10. 1.

The present case merited a different treatment at the hands of the High Court. The land in question was acquired for a University. The University was constructed in a large area. By reason of the two notifications in question alone, about 5,000 bighas of lands were acquired. Out of the said 5,000 bighas, the lands needed for actual construction of the building may be a few bighas only. A large portion of the land must have been kept vacant for future development as also for other purposes e. g. sport and other activities. The area consisting of stones might not have been utilized for the purpose of raising any construction. A portion of land admittedly contained minerals. A number of minerals were said to be deposited in the land in question, namely, mica, berill quards and china clay. The respondents, however, having regard to the materials on records confined their claim only to China clay. 19% of the total minerals-bearing land is said to have been exploited.

How far these minerals bearing land were suitable for raising construction is a matter of guess. As per the evidence on record the minerals can be up to a depth of 60 ft. It is not necessary for this Court to go into this question in detail as the High Court did not advert thereto; But suffice it to say that for the purpose of carrying out mining operation, the respondents were required to comply with the safety provisions contained in the Mines Act, 1952 and the rules and regulations framed thereunder. 191-E-F-G-H; 93-A-B) 10. 2. The Reference Court and the High Court did not consider the question as to what amount was required to be expended for bringing the said area back to the normal so as to enable the University authorities to raise construction thereon. Minerals were evidently taken out by taking to recourse to the quarry method, but there is no evidence adduced by ,__ U. 0. 1. v. PRAMOD GUPTA (D) BY LRS.

55 the respondents to show that the pits caused by such mining activities have been filled up. [93-8-C-D) 10. 3. In fact the Reference Court or the High Court did not address themselves on the question that the market value of the acquired lands was required to be determined having regard to the largeness of the area and the purpose for which they are required, namely, for the University and not for the development of the township or the residential colony wherefor different standards may have to be adopted. The Reference Court and the High Court should have also taken into consideration the fact that the lands in question being of different categories would fetch different prices and same price might not have been available for all types of lands. Recourse taken by the High Court to the circulars issued for the lands acquired for residential purpose only, therefore, will have no application in the facts and c'rcumstances of the present case. [93-F-G[ 11. 1.

It may not, thus, be correct to contend that Sections 28 and 34 of the Land Acquisition Act, 1984 are so imperative in character that waiver thereof is impermissible in law or would be against public interest. Grant of interest in terms of Section 28 of the Act is discretionary. Only rate of interest specified therein is mandatory. Section 34 of the Act ex facie, however, appears to be imperative in character as the word 'shall' has been used. A discretion vested in the court, it is trite, may not be exercised where the right to claim interest has been waived expressly by the parties and/or their counsel. Even a mandatory provision of a statue can be waived. [95-C-D-E) Raghubans Narain Singh v. The Vilar Pradesh Government, AIR (1967) / SC 465 and State ofAssam v. Jitendra Kumar Senapati, AIR (1981) SC 969, relied on. 11. 2.

If a person alters his position pursuant to the representation made by the other side, the principles of estoppel would be applicable and by reason thereof, the person making the representation would not be allowed to raise a plea contra thereto. [96-H; 97-A) Krishna Bhadur v. Purna Theatre, [2004) 8 SCC 229, Vijay Cotton and Oil Mills Ltd. v. State a/Gujarat, [1969) 2 SCR 60 and State ofKarnataka v. Sangrappa Dvavappa Biradar, [2005) 4 SCC 264, relied on. Supdt. a/Taxes v. Mis. Onkarmal Nathmal Trust, AIR (1975) SC 2065, ... held inapplicable. 12. I. It is, therefore, not correct to contend that there cannot be any waiver of the right to claim interest. Statutory provisions are made for payment of interest with a view to compensating a party who had suffered damages owing to a positive action or inaction of the other resulting in blockade of money which he would otherwise have received.

A party who himself represents before the court of law that he would not claim interest with a view to obtaining an order of stay which would be for his own benefit, could not be permitted to take advantage of his own wrong. (98-G-H; 99-A-B) Sushi/ Kumar v. Rakesh Kumar, (2003) 8 SCC 673 and Laxminarayan R. Bhattad v. State ofMaharashtra, (2003) 5 SCC 413, relied on. Ram Chandra Singh v. Savitri Devi, (2003( 8 SCC 319 and Board of Control for Cricket in India v. Netaji Cricket Club, (2005) 4 SCC 741, · referred to. 12. 2. Therefore, the High Court committed a manifest error in allowing interest for the period during which the proceedings before the Reference Court remained stayed. (99-C-D) 13. It is not in dispute that in the proceeding before the Reference Court the respondent claimed compensation to the extent of I/4th share in the entire land. It has also not been disputed that Section 25 ofthe Land Acquisit!

on Act, 1894 contains a substantive provision of law and not a procedural one and, thus, the statutory provision as it existed prior to its amendment in the year 1984 shall apply. (99-E-F) ' p Land Acquisition Officer-cum-DSWO, A. P. v. B. V. Reddy, 12002) 3 SCC 463 and Krishi Utpadan Mandi Samiti v. Kanhaiya Lal, 12000( 7 SCC 756; relied on. ' 14. It becomes obligatory upon the State to pay compensation on the basis of the market value of the land acquired. (100-E( Bhag Singh v. Union Territory a/Chandigarh, AIR (1985) SC 1576 and Union ofIndia v. Raghubir Singh, JT (1989) 2 SC 427, relied on. 15. Service of notice upon the recorded persons whose names appear in the revenue records only would sub serve the purpose for which notice is required to be served. (101-D-E) U. 0. 1. v. PRAMOD GUPTA (D) BY LRS. 57 State of Punjab v. Sawaran Singh, (2005) SCALE 601 and Sureshchandra C. Mehta v. State of Karnataka, (19941 Supp. 2 SCC Sil, relied on. W. B. Housing Board v.

Brijendra Prasad Gupta, [1997) 6 SCC 297, referred to. Uggar Sen Kashyap v. Union ofIndia, (1973) 9 DLT 59, approved. f 16. It is now well settled that if an owner himself has purchased the land the same would be the best evidence for determining the amount of compensation. (103-CJ Shakuntalabai v. State ofMaharashtra, [1996) 2 SCC 152, referred to. 17. The pleadings before the trial court are the basis for adduction of evidence either before the trial court or before the Appellate Court. By amending the memo of appeal the original pleadings cannot be amended. The claimants-respondents made their claim before the Reference Court claiming compensation for the lands acquired under two different references at a certain rate. They are bound by the said pleadings. Section 53 of the Land Acquisition Act, 1894 merely provides for applicability of the provisions of the Code of Civil Procedure, 1908 including the one under Order 6 Rule 17 thereof.

Order 6 Rule 17 of the Code postulates amendment of pleadings at any stage of the proceedings. Before an amendment can be carried out in terms of Order 6 Rule 17 of the Code the Court is required to apply its mind on several factors including viz. , whether by reason ofsuch amendment the claimant intends to resile from an express admission made by him. In such an event the application for amendment may not be allowed. [104-A-B-C-D) Mis. Modi Spinning and Weaving Mills Co. Ltd. v. Mis. Ladha Ram & Co. , AIR (1977) SC 680, Heerala v. Kalyan Mal, 11998) 1 SCC 278, Sangramsinh P. Gaekwad v. Shantadevi P. Gaekwad, JT (2005) I SC 581 and Krishi Utpadan Mandi Samiti v. Kanhaiya Lal, [2000) 7 SCC 756, relied on. 18. 1. The rights of the parties, it is well-settled, must be determined on the basis of the case pleaded and proved by leading proper evidence and just not on the basis of other reported judgments. 1106-C-D) );• Surendra Kumar Vakil v.

ChiefExecutive Officer, [2004) 10 SCC 126 and Sanjay Gera v. Haryana Urban Development Authority, [2005) 3 SCC 207, relied on. Bhooria v. Union ofIndia, 95 (2002) DLT 100 (DB), referred to. 18. 2. The purported amendments of the Memo of Appeal and the reference applications, therefore, could not have been the basis for allowing adduction of additional evidence as has been done by the High Court. [106-E-F) 19. 1. It has not been disputed that the claimant-respondent purchased 1/4th share of the land in question by a sale deed. The appellant filed an application under Order 41Rule27 of the Code for bringing the Xerox copy of the said sale deed on records but the same was rejected inter alia on the ground that prior thereto no effort was made to rely upon the said sale deed. [103-8-CJ 19. 2.

It is true that the appellant did not question the orders disallowing the application for amendment filed by the appellants and allowing the application for amendment as also adduction of additional evidence by the respondents but having regard to the peculiar facts and circumstances of the present case and in particular the fact that a large amount of public money is involved, it is a fit case where jurisdiction of this Court under Article 142 of the Constitution should be invoked for the purpose of setting aside the said orders with a view to doing complete justice between the parties. [111-D-EJ Deb Narayan Shyam v. State of WB. , [2005) 2 SCC 286, relied on. 20. Therefore, the impugned judgments are set aside and the matters are remitted to the High Court for fresh consideration. [112-D-E) CIVIL APPELLATE JURISDICTION : Civil Appeal No. 6825-6826 of 2003. From the Judgment and Order dated 5. 10. 2001 of the Delhi High Court in R. F. A. Nos. 85 and 86 of 1987. With C. A. Nos.

6827-6832/2003, 950, 2661, 5566-5569 of 2005. WITH U. 0. 1. v. PRAMODGUPTA (D) BY LRS. (S. B. SINHA, J. ] 59 C. A. Nos. 6827-6832/2003, 950, 2661 of2005, Civil Appeal Nos. 5566- 5569 of 2005•! arising out of SLP(C) Nos. 14383 of 2004, 17913, 17915, 17916 of2005]. ' Amrendra Sharan, Additional Solicitor General, M. P. S. Tomar, S. Wasim A. Qadri, Mrs. Kiran Bhardwaj, Mrs. Rekha Pandey, Ms. Pareena Swamp, Mrs. Asha G. Nair, Mrs. Sunita Sharma, Mrs. Anil Katiyar and D. S. Mahra for the Appellant. K. Ramamoorthy, K. N. Bhat, Sriram J. Thalapathy, N. K. Arulmurugandham, Manish Vashisht, Ashok K. Mathur, Vishnu B. Saharya, Dhruv Mehta, Mohit Chaudhary, Harshvardhan Jha, Naresh Kaushik, Mrs. Lalita Kaushik, Parmanand Gaur, S. K. Rout, Naresh Kumar, Jagjit Singh Chhabra, S. K. Dhingra, Ms. Shefali Dingra, Dr. Ms. Aparana Bhardwaj, Rajesh Tyagi and Atishi Dipankar for the Respondents. The Judgment of the Court was delivered by S. B. SINHA, J. Leave granted in the special leave petitions.

INTRODUCTION : These appeals are directed against a common judgment and order dated 5. 10. 2001 passed by a Division Bench of the High Court of Delhi in R. F. A. No. 85 and 86 of 1987 under Section 54 of the Land Acquisition Act, 1894 (for short "the Act") whereby and whereunder the amount of compensation in respect of acquisition of land in village Masoodpur with china clay and without china clay was fixed @Rs. 56 per sq. yard and Rs. 30 per sq. yard respectively in relation to the notification dated 24. 10. 1961 and Rs. 98 per· sq. yard and Rs. 72 per sq. yard with China Clay and without China Clay respectively in relation to the notification dated 23. 01. 1965. The basic fact of the matter is not in dispute. Two notifications dated 24. I0. 1961 and 23. 01. 1965 were issued for acquisition of the lands measuring 1105. 04 bighas and 3895. 07 bigha respectively situated in village Masoodpur for the public purpose of planned development of Delhi, i. e.

, for construction of Jawahar Lal Nehru University. Declarations under Section 6 of the Act were issued on 6. 08. 1966 and 6. 12. 1966. Two awards being award Nos. 2040 and 2225 were made on 2. 12. I967 and 8. 04. I969. The Land Acquisition Collector for the purpose of computation of the amount of compensation payable for acquisition of said land divided the acquired lands in three .. categories viz. Blocks A, B & C and awarded compensation @ Rs. l000 per c bigha for Block A, Rs. 900 per bigha for Block B and Rs. 600 per bigha for Block C in respect of the acquisition of land under notification dated 24. 10. 1961 and Rs. 1580 per bigha for Block A, Rs. 1175 per bigha for Block B and Rs. 600 per bigha for Block C in respect of the acquisition of land under notification dated 23. 01. 1965.

The owners of the lands being aggrieved by and dissatisfied with the said awards filed applications seeking reference in terms of Section 18 ofthe Act pursuant whereto and in furtherance whereof the Reference Court by a judgment and award dated 28. 07. 1986 awarded compensation @ Rs. 18000 per bigha for the lands covered by Award No. 2225 and Rs. 12000 per bigha for the lands covered by Award ~ No. 2040. The Reference Court further granted compensation @ Rs. l0,000 per bigha for minor mineral, i. e. , China Clay. On or about 8. 12. 1986, the Appellants herein preferred appeals in terms of Section 54 of the Act being aggrieved by and dissatisfied with the said judgment and award which were marked as R. F. A. No. 85 & 86of1987. The Respondents herein upon service of notice filed cross objections seeking enhancement of compensation both in respect of land as well as the mineral China Clay.

HIGH COURT: The High Court by reason of the impugned judgment dismissed the appeals filed by the Appellants herein holding, inter alia, that the judgments and awards granting compensation for the lands acquired in the neighbouring villages which were upheld by it in R. F. A. Nos. 567/1990 and 694/1990, would attract the principle of res judicata and, thus, the appeals filed by the Appellants were not maintainable. The High Court, however, allowed the cross-objections filed by the Respondents h;:rein in part. The High Court further refused to entertain an application filed by the Appellants herein under Order XLI Rule 27 of the Code of Civil Procedure for bringing on record inter alia a sale deed whereby and whereunder one of the Respondents herein obtained assignment of I/8th of the amount of compensation in the year 1980 for a sum of Rs.

30,000 holding that the same was not relevant for disposal of the appeals and in any event the same should have been brought on records by the Appellants before the Reference Court. The Appellants before the High Court, inter alia, had raised a contention ... that as the proceeding arising out of reference having remained stayed at the U. O. I. v. PRAMOD GUPTA (D) BY LRS. [S. B. SINHA, J. ] 61 • instance of the Respondents for the period January, 1972 and May, 1980; they were not entitled to any interest which was rejected opining that the statutory provisions for grant of interest as contained under Sections 28 and 34 of the Act beirig mandatory in nature cannot be waived. For computing the market value ofthe lands, the Hi&~ ~curt proceeded on the basis that the lowest category of residential developecfplots, as in the ' ~ year 1965, should be taken to be the base therefor i. e. @Rs. 150 per sq. yd.

f and directed deduction of 40% therefrom on the premise that some time would have been necessary for excavating minor minerals and to make the lands fully developed having regard to their tremendous building potential. The High Court also directed further deduction of 20% from the wholesale price opining that Rs. 72 per sq. yard would be a fair market price for the acquired land in the year 1965. However, as regard the lands which were the subject matter ofacquisition in tenns ofnotification dated 24. 10. 1961, relying on or on the basis of a decision of the High Court in Rameshwar Solanki and Anr. v. Union ofIndia and Anr. , 57 (1995) DLT 410, further deductions@ ... , 12% p. a. were directed to be made therefrom working out the amount of -compensation at Rs. 30 per sq. yard for lands without China Clay and Rs. 56 per sq. yard with China Clay. Aggrieved by and dissatisfied with the said judgment and order, the Union of India and the Delhi Development Authority are before us.

SUBMISSIONS : The learned Additional Solicitor General appearing for the Appellants raised the following contentions in support of these appeals: . / (i) The nature of the lands being 'Gainnumkin Pahad' and 'Banjar Kadim', as described in the entries made in the revenue record of rights for the years 1907 and 1908, the Respondents were entitled to such amount of compensation only payable to a holder of Bhumidari rights in terms of the provisions of the Delhi Land Reforms Act and no other, wherefor Sections 5, 6, 7, 11, 22, 23 and 154 thereof were required to be read conjointly. (ii) China Clay being a minor mineral, in tenns of the provisions of the Mines and Minerals (Regulation and Development) Act, 1957 as also the Punjab Minor Mineral Rules, I934, the same having vested in the Central Government; no compensation was payable therefor. ' .. - (iii) Judgments and awards made in favour of other claimants having only evidentiary value, the principle of res judicata ·.

vas wholly inapplicable. Q In any event as such judgments and awards were passed by courts having no jurisdiction therefor; the principle ofres judicata was not applicable. (iv) Even if it hi fo! \ind that any amount of comp~~sation was payable • r• to the Respondents herein, the High Court misdirected itself in· passing the impugned judgment insofar as it failed to take into consideration that the Respondents having made a claim _of Rs. 25 per sq. yard before the Land Acquisition Collector were estopped and precluded from claiming any higher amount in view of Section 25 of the Land Acquisition Act, as it then stood. (v) In view of the fact that the Respondents themselves prayed for stay of the proceedings before the Reference Court, no interest was payable for the period between 17th January, 1972 and 27th May, 1980. (vi) The High Court failed to take into consideration the fact that the ... Respondents themselves purchased the land at the rate of Rs. 6 per sq.

yard in the year 1960 and I/8th sha"e of the acquired land for a sum ofRs. 36,000 in the year 1980 and the market value of the acquired lands should have been determined only on that basis. (vii) In any view of the matter, as the appeal had been held to be not maintainable by the High Court applying the principles of res judicata, the cross objections filed by the Respondents were also not maintainable. Mr. Harish Salve, Mr. P. P. Rao, and Mr. Ramamurthy, learned senior counsel appearing on behalf of the Respondents, on the other hand, would support the impugned judgment. At the outset we may notice that Mr. Salve conceded that the principles of res judicata and/ or issue estoppel were not applicable to the fact of the present case. The learned counsel would, however, point out that the High Court in fact entertained the appeals preferred by the Appellants as regard : (a) ownership of China Clay, (b) value of the land and (c) application of Section 25 of the Act.

It was furthermore submitted : (i) The Land Acquisition Act being an existing statute on the date of . ,, coming into force of the Constitution of India the right to property was a c: U. O. I. v. PRAMOD GUPTA (D) BY LRS. [S. B. SINHA, J. ) 63 ~ fundamental right in terms of Article 19(1)(f) and 31 of the Constitution of India when the notifications under Section 4 were issued and, thus all the procedural requirements laid down therein were required to be scrupulously complied with in fulfillment of the legislative purpose. (ii) Section 25(2) of the Act has no application in the fact of the matter as the High Court has arrived at a finding that 'admittedly no notice under Sections 9(3) and 10 was served on the Respondents', in which event only the bar envisaged under Section 25(2) of the Act, would be attracted.

(iii) The Respondents having amended their Memo of Appeal as also the Reference in terms of Order VI Rule 17 of the Code of Civil Procedure, vis-a-vis Section 53 of the Act, the High Court had the requisite jurisdiction to enhance the amount of compensation in favour of the Respondents. (iv) The notifications issued by the Union of India were admissible in evidence as no other admissible evidence was available on record. ,l (v) In view of the fact that the Respondents are armed with the four decrees passed in their favour by courts of competent jurisdiction, it is not open to the Appellant to contend that Bhumidhars had no right in the minor mineral China Clay. Distinguishing the judgment ofthis Court in Gaon Sabha and Anr. v. Nathi and Ors. , JT (2004) 4 SC 36 : [2004] 12 SCC 555, the learned counsel woutCl'::liubmit that the Respondents therein were not Bhumidhars and, thus, the said decision must be held to have bew;rendered in the fact situation obtaining therein.

In any event, the question as regard title is not an issue herein as the matters in relation thereto are pending consideration, if any, before the High Court. '·1 / (vi) Mineral right contained in the land did not vest in the Government in terms of Section 41 of the Punjab Land Revenue Act, 1887 and the said right would be presumed to have vested in the recorded tenants in terms of sub-section (2) of Section 42 thereof. (vii) Punjab Minor Minerals Rules, 1934 and the Mines and Minerals (Regulation· and Development) Rules, 1957 or the Delhi Land Reforms Act, 1954 do not contain any provision divesting the right of the proprietor in the minor minerals either expressly or by necessary implication and in that view of the matter, the ownership on minor minerals continued to remain vested in the landowners. .. FACTUAL BACKGROUND: As the fact of the matter has been noticed at some length by a Constitution Bench in Sardar Amarjit Singh Katra (Dead) by LRs. and Ors. , etc. v.

Pramod Gupta (Smt. ) Dead) by LRs. and Ors etc. , (2003] 3 SCC 272, it may not be necessary for us to traverse the same over again. Suffice it to notice that the Respondents herein claimed their right, title and interest in the lands in question measuring 4307 bighas, 17 biswas from one Guiab Sundari who was said to be the proprietor of M/s Kesri Pottery Works having a nonoccupancy tenancy right therein. It is not in dispute that several proceedings had been initiated before different forums by Guiab Sundari on the one hand and the· Gaon Sabha of the village and the Union of India, on the other, in respect of the right, title and interest of the respective parties after coming into force of the Delhi Land Reforms Act. The aforementioned Guiab Sundari had allegedly been declared Bhumidhar by the Deputy Commissioner of Delhi. It may be noticed that an intervention application has been filed on behalf of Shri Madan Gopal Gupta and Shri Sudhir Jain contending that there ..

exists an inter se dispute as regard the ownership of the property in question inasmuch as the applicants therein are proprietors/owners thereof. According to the said applicants the principal dispute between the parties is as to whether ·~ the said Guiab Sundari had had any right, title or interest as Bhumidhar or otherwise in the said land and the same is pending determination before the High Court of Delhi in RFA Nos. 309-310 of 1980. Briefly stated the contention raised on behalf of the said applicants is that a lease was granted by the proprietor in the year 1939 and the lessee in turn granted a sub-lease in favour of M/s Kesri Pottery Works, a partnership firm, in the year 1942. The period of lease granted in favour of the lessee having expired, Guiab Sundari ceased to have any interest in the property.

In any event, a lessee or a sub-lessee could not have been declared Bhumidhar in terms of Section 7 of the Delhi Land Reforms Act as only the proprietor of the village was entitled thereto and in that view of the matter the declaration of Bhumidhari rights in favour of Guiab Sundari was wholly illegal and without jurisdiction. The Appellants, however, contend that Guiab Sundari or for that matter any person other than the Central Government or the Gaon Sabha in view of the provisions contained in the Delhi Land Reforms Act, 1954 and other statutes, as referred to herein before, did not derive any right, title and interest in the minor. minerals.

In any event, right over mines and minerals in proprietors being limited under the provisions of the Punjab Land Revenue Act, Punjab Minor Minerals Rules, 1934 and the Mines and Minerals (Regulation and Development) Act, 1957, they did not derive any right to exploit the area for commercial purposes and in that view of the matter, the Reference Court and the High Court acted illegally and without jurisdiction in computing the amount of compensation in respect of mineral rights on the premise that if they were entitled thereto. PROCEEDINGS BEFORE THE REFERENCE COURT: From the claim applications filed before the Reference Court, it appears that there were five claimants, namely, Smt. Promod Gupta, Shri Rajiv Gupta, Sanjay Gupta, Smt. Sumangli Gupta and Shri LR. Gupta. However, in the claim petitions Shri L. R.. Gupta did not put his signature.

The Reference Court in the proceedings under Section 18 of the Act framed the following issues : "(i) Whether the petitioners are the Bhumidars of the land in dispute ? . ,,. (ii) To what enhancement in the amount of compensation, if any, are the petitioners entitled? " It was noticed : "One set of claimants in the reference against each award is Smt. Parmod Gupta, Sri Ram Gupta, Mehar Chand Gupta and Babu Ram Gupta and they jointly have claimed I/4th share in the land acquired by these awards and the other set of claimants against each award was Surinder Gupta, who was substituted by Rattan Lall Gupta in proceedings u/s 30/31 of the Act before Shri P. L. Singla. Now Rattan Chand Gupta has been substituted by Rajiv Gupta, Sanjay Gupta, Parmod Gupta and Sumangli Gupta. The first set of claimants, Sri Ram Gupta, Mehar Chand Gupta and Babu Ram Gupta stand substituted by Rajiv Gupta, Sanjay Gupta, Shri L. R. Gupta, Smt. . · Parmod Gupta and Sumangli Gupta being the members of the L. R.

Gupta HUF. They jointly have I/8th share in the land acquired by both the awards. " The aforementioned five claimants, viz. , Smt. Promod Gupta, Shri Rajiv Gupta, Sanjay Gupta, Smt. Sumangli Gupta and Shri LR. Gupta have also been arrayed as Respondents in the appeals filed before the High Court by the appellants herein. RES JUD/CATA : The principle of res judicata has been applied by the High Court in relation to two issues, viz. , detennination of market value and title of the Respondents in respect thereof. We have noticed hereinbefore that Shri Salve conceded that the High Court has committed an error in applying the principle ofres judicata. Having regard to the said concession, although it may not be necessary for us to delve deep into the said question but in view of the order proposed to be passed by us, we think it fit and proper to deal briefly therewith.

A bare perusal of the judgments and awards passed by the Reference Court would indicate that the amount of compensation was fixed on the basis of some judgments passed by the High Courts in matters which were said to be involving similar lands. DETERMINATION OF MARKET VALUE: While determining the amount of compensation payable in restect of the lands acquired by the State, indisputably the market value therefor has to be ascertained. There exist different modes therefor. The best method, as is well-known, would be the amount which a willing purchaser would pay to the owner of the land. In absence of any direct evidence, the court, however, may take recourse to various other known methods. Evidences admissible therefor inter alia would be judgments and awards passed in respect of acquisitions of lands made in the same village and I or neighbouring villages.

Such a judgment and award in absence of any other evidence like deed of sale, report of expert and other relevant evidence would have only evidentiary value. Therefore, the contention that as the Union of India was a party to the said awards would not by itself be a ground to invoke the principles of res judicata and/ or estoppel. Despite such awards it may be open to the Union of India to question the entitlement of the claimants Respondents to the amount of compensation and/or the statutory limitations in respect thereof. It would also be open to it to raise other contentions relying on or on the basis . ,. U. O. l. v. PRAMOD GUPTA (D) BY LRS. [S. B. SINHA, J. ] 67 . of other materials brought on the records. It was also open to the Appellant to contend that the lands under acquisition are not similar to the lands in respect whereof judgments have been delivered.

The area of the land, the nature thereof, advantages and disadvantages occurring therein amongst others would be relevant factors for determining the actual market value of the property although such judgments/ awards, if duly brought on records, as stated hereinbefore, would be admissible in evidence. Even ifthe Union oflndia had not preferred any appeal against the said judgment and award; it would not be estopped and precluded from raising the said question in a different proceeding as in a given case it is permissible in law to do the same keeping in view larger public interest. In Government of West Bengal v. Tarun K. Roy, [2004] l SCC 347 repelling the contention that the State is estopped from maintaining an appeal while from a similar matter which has been implemented no appeal was filed, it was observed : "28.

In the aforementioned situation, the Division Bench of the Calcutta High Court manifestly erred in refusing to consider the contentions of the appellants on their own merit, particularly, when the question as regards difference in the grant of scale of pay on the ground of different educational qualification stands concluded by a judgment ofthis Court in Debdas Kumar!. Ifthe judgment of Debdas Kumar is to be followed, a finding of fact was required to be arrived at that they are similarly situated to the case of Debdas Kumar which in turn would mean that they are also holders of diploma in Engineering. They admittedly being not, the contention of the appellants could not be rejected. Non-filing of an appeal, in any event, would not be a ground for refusing to consider a matter on its own merits. (See State of Maharashtra v. Digambar. ) 29. In State ofBihar v. Ramdeo Yadav, wherein this Court noticed Debdas Kumar by holding: (SCC p. 494, para 4) "4. Shri B. B.

Singh, the learned counsel for the appellants, contended t~at though an appeal against the earlier order of the High Court has not been filed, since larger public interest is involved in the interpretation given by the High Court following its earlier judgment, the matter requires consideration by this Court. We find force in this contention. In the similar circumstances, this Court in State of 68 SUPREME COU~T REPORTS [2005] SUPP. 3 S. C. R. - Maharashtra v. Digambar and in State ofW. B. v. Debdas Kumar had held that though an appeal was not filed against an earlier order, when public interest is involved in interpretation of law, the Court is entitled to go into the question. "" The principle of res judicata would apply only when the lis was interparties and had attained finality in respect of the issues involved.

The said principle will, however, have no application inter alia in a case where the judgment and/or order had been passed by a court having no jurisdiction therefor and/or in a case involving pure question of law. It will also have no application in a case where the judgment is not a speaking one. The courts while determining the amount ofcompensation for acquisition of land would be bound to take into consideration only the materials brought on records. However, factors which would be relevant for determining the amount of compensation would vary from case to case and no hard and fast rule can be laid down therefor. The principle of res judicata will, therefore, have no application in the fact of the present matter.

RIGHT OVER MINES & MINERALS: It may be true that the principles of res judicata may be applicable in respect of the question of title but even for the said purpose it was obligatory on the part of the High Court to refer to the previous judgments whereupon reliance had been placed by the Respondents for the purpose of arriving at a decision as to whether they have been rendered by a competent court or not. The question as to whether a civil court will have jurisdiction in respect of declaration and /or cancellation of bhumidhari right was not adverted to by the High Court. We may notice that this Court in Nathi (supra) held that in terms of the provisions of the Delhi Land Reforms Act, 1954 a person can either be a Bhumidhar or Asami and there is no other class of proprietors or tenure-holder after coming into force of the said Act. It was further opined: "I I. I.

Therefore, the legal position is absolutely clear that a person can be either a bhumidhar or an asami of the agricultural land in a village. He can also be an owner of the property of the type which is enumerated in Section 8 ofthe Act, like private wells, tanks, groves, abadis, trees and buildings. Except for these, all other kinds of lands and property would vest in the Gaon Sabha. The proprietors and the concept of proprietors of land stands totally abolished with the enforcement of the Act. The respondents neither claimed to be ~ bhumidhar nor asami of the land which has been acquired. The acquired land does not come within the purview of Section 8 of the Act. In such circumstances the only inference possible is that the land stood vested with the Gaon Sabha on the date of the commencement of the Act and it was the Gaon Sabha which was the owner thereof and was entitled to receive the entire amount of compensation.

" From the impugned judgment of the High Court, it does not appear that ' it had taken into consideration the relevant factors, viz. , (i) implication of the provisions of the Delhi Land Refonns Act vis-a-vis the nature of the land and/ or the source of title; and (ii) the statutory effect as regard the claim of the Respondent on the sub-soil mineral right in the light of several existing statutes. Even if the proprietors and consequently the bhumidhars were entitled to mineral right, independently, the statutory interdicts limit the user of such mineral. The question would have relevance not only for the purpose of determination of the claim of ownership over such land and/ or mineral embedded therein but also the nature and extent 'thereof. Ordinarily, the zamindar of the tauzi is the owner of the sub-soil mineral. Such zamindars must be holders of revenue paying estate.

If the zamindars had granted a lease, the extent of right of lessee would depend upon the terms of the lease and in absence of an express grant the lessee would have ~o right to work quarries or mines other than those which were open when he entered. In F. F. Christian v. Tekaitni Narbada Koeri and Ors. , (1914) CLJ (20) 527] where a maintenance grant was made for life, it was held that thereby no right of mines and minerals had been conveyed, ,observing : "... This, it is contended, shows that the grantor Moharaj Singh was aware of the existence of mica mines when he made the maintenance grant in 1894. Let such knowledge in his part be assumed for purposes of argument; the fact is really inconclusive. The view may well be maintained that if he intended to vest all the subsoil rights on the grantee, he would have explicitly stated so, as he did in the mortgage instrument of the 2nd December, 1889" In Bageswari Charan Singh v.

Kumar Kamakhya Narain Singh, (1931) ILR (X) PC 296 : AIR (1931) PC 30, referring to the statutory presumption as between zamindar and jagirdar, it was held that the former must be regarded " as the owner of the minerals. It was further observed : "... Apart from the statutory presumption arising in this case, there is a general presumption that the land in a zamindari is the property of the zamindar, and held under him" Yet again in Ras Behari Manda! and Ors. v. Raja Jagadish Chandra Deo Dhaubal Deb, (1936) JC 160 114, the Patna High Court reiterated the presumption that the lessor retains all rights in mines and quarries. It also noticed the decision of House of Lords in Great Western Railway Co. v. Carpal/a United China Clay Co. Ltd. (191(J) AC 83, wherein a grant reserving minerals was held to exclude a deposit of China clay despite the fact that the same was found near the surface. In Jagat Mohan Nath Sah Dea v. Pratap Udai Nath Sah Deo and Ors.

, AIR (1931) PC 302, the Privy Council affirmed its earlier decision in Gobinda Narayan Singh v. Sham Lal Singh, AIR (1931) PC 89 stating: "A long series of recent decision by the Board has established that if a claimant to subsoil rights holds under the zamindar or by a grant emanating from him, even though his powers may be permanent, heritable and transferable, he must still prove the express irn;J,u. sion of th~ subsoil rights. " [See· also H V. Low and Company ltd. v. Raja Bahadur Jyoti Prasad Singh Dea, AIR (1931) PC 299 and Onkarmal Agarwal/a and Ors. v. Bireswar Hazra and Ors. , AIR (1959) Calcutta 195 and Bageswari Charan Singh, (supra)] Yet again in Bejoy Singh Dudhoria v. Surendra Narayan Singh, (1929) ! LR 56 Cal. I, it was held that in absence of any reference to minerals or to ', the subsoil; or to the right to excavate for making bricks or to anything in the deed of lease, even the patni tenure-holder did not derive any right in the mines and minerals.

The provisions of Punjab Land Revenue Act govern the rights of the tenants. Before us, the original deeds under which the right of proprietorship, if any, said to be created in favour of Smt. Guiab Sundari, in terms whereof she became occupancy tenant as also the deeds of sale/ grants made in favour of her predecessors have not been produced, in absence whereof it will not be prudent for this Court to venture to arrive at a conclusion as regard the nature of the right of the proprietor or the lessee as the case may be. Even the judgments and decrees passed by the civil courts and the revenue courts are not before us and, thus, this Court may only briefly indicate the legal position, the application whereof would depend on a finding of a court of competent jurisdiction as regard the nature and extent of right. Sections 41, 42(2), 60-C of the Punjab Land Revenue Act, 1887 read as under: "41. Right of the Government in mines and minerals.

All mines of f metal and coal, and all earth-oil and gold washings shall be deemed to be the property of the Government for the purpose of the State and the State Government shall have all powers necessary for the proper enjoyment of the Government's rights thereto. 42. Presumption as to ownership of forests, quarries and waste land (! )When in any record-of-rights completed before the eighteenth day ofNovember, 1871, it is not expressly provided that any forest, quarry, unclaimed, unoccupied, deserted or waste-land, spontaneous produce or other accessory interest in land belong to the landowners, it shall be presumed to belong to the Government. (2) When in any record-of-rights completed after that date it is not expressly provided that any forest or quarry or any such land or interest belongs to the Government, it shall be presumed to belong to the landowners.

(3) The presumption created by sub-section (I) may be rebutted by showing:- (a) from the records or report made by the assessing officer at the time of assessment; or (b) if the record or report, is silent, then from a comparison between the assessment of villages in which there existed, and the assessment of villages of similar character in which there did not exist, any forest or quarry, or any such land or interest. That the forest, quarry, land or interest was taken into account in the assessment of the land-revenue. (4) Until the presumption is so rebutted, the forest, quarry, land or interest shall be held to belong to the Government. 60-C. Power to issue instructions.

The State Government or the Financial Commissioner with the approval of the State Government may, for the guidance of Revenue-officers, from time to time issue executive instructions relating to all matters to which the provisions ofthis chapter apply, provided that such instructions shall be consistent with the provisions of this Act and the rules made thereunder. " Section 60-C of the Punjab Land Revenue Act, 1887 empowers the State to issue general instructions which are binding on the tenure-holders. Pursuant to or in furtherance of the said power, the State of Punjab made rules known as Punjab Minor Minerals Rules, 1934, Rules 3, 5 and 7 whereof read, thus: "3. (1) No person shall quarry any minerals belonging to Government from land, whether privately owned or otherwise included within any revenue estate, or situated in land the property of Government not included within the limits of a revenue estate, unless he has first obtained a permit in the manner hereinafter prescribed.

(2) A person, not being a permit-holder, who is found in possession of any recently quarried mineral, shall be deemed to have quarried the said mineral without a permit, unless he furnishes proof to the satisfaction of the Collector, that the said mineral was quarried by a permit-holder. 5. Any person being an owner or occupancy tenant of agricultural land desiring to quarry in the revenue estate within which his land is situated for use within such revenue estate any mineral (a) for his own personal, agricultural or domestic purposes, and not for alienation by sale or otherwise, nor for contract work; or (b) for construction, otherwise than by contract, a hospital, school, dharamsala, well, piao, tank, mosque, temple, or any other work of public utility or religious worship, within the said estate, shall make an application in form M. I to the Collector either directly or through the patwari of revenue estate. If the land.

from ~hich the mineral is to be quarried is not in the applicant's possession the application shall also be signed by the owner or occupancy tenant thereof as a token of consent. 7. (i) A person who desires to quarry minerals in circumstances other than those related in paragraph 5 shall make his application to the Collector. (ii) Every application by a contractor for quarrying minerals on behalf of a Government Department or a local body shall be made to the Collector in form M. 2, through the Executive Engineer or other official ofcorresponding authority concerned, or through the Secretary of the local body concerned, as the case may be. (iii) Application in cases other than those provided for in the rule 5 ) and in sub-rule (ii) of the rule, shall be made in form M. 3. " Validity of the said Rules has not been questioned by the Respondents in an appropriate proceeding. Rule 3 is not applicable in the instant case.

But in terms of Rule 5 even ifa mineral is found in the agricultural land, the sarne could be extracted only for personal, agricultural or domestic purposes and not for any commercial one including carrying out any contract. Even for the permissible purposes, an application for grant of permit was necessary. Assuming that the Bhumidhars were entitled to the mineralright in the lands in question, minor minerals could have been extracted therefrom only for their personal use and that too after obtaining a requisite permit in terms of the Rules. Government of India Act came into force in the year 1935. Entry 36 of List I of the Seventh Schedule contained in the Government of India Act empowered the Governor General in Council to make laws relating to regulation of mine and mineral development.

Pursuant to or in furtherance of the said power, Mines and Minerals (Development and Regulation) Act, 1948 was enacted; in terms of Section 4 whereof mining operation could be carried ) out only under a licence or lease to be granted in the manner prescribed under the rules framed thereunder. The Parliament thereafter enacted Mines and Minerals (Development and Regulation) Act, 1957; section 4 whereof reads as under: "4. Prospecting or mining operations to be under licence or lease.

- (1) No person shall undertake any reconnaissance, prospecting or mining operations in any area, except under and in accordance with the terms and conditions ofa reconnaissance permit or ofa prospecting licence or, as the case may be, of a mining lease, granted under this Act and the rules made thereunder: • Provided that nothing in this sub-section shall affect any prospecting or mining operations undertaken in any area in accordance with the terms and conditions of a prospecting licence or mining lease granted before the commencement of this Act which is in force at such commencement: Provided further that nothing in this sub-section shall apply to any prospecting operations undertaken by the Geological Survey of India, the Indian Bureau of Mines, the Atomic Minerals Directorate for Exploration and Research ofthe Department of Atomic Energy of the Central Government, the Directorates of Mining and Geology of any State Government (by whatever name called), and the Mineral Exploration Corporation Limited, a Government company within the meaning of section 617 of the Companies Act, 1956: Provided also that nothing in this sub-section shall apply to any mining lease (whether called mining lease, mining concession or by any other name) in force immediately before the commencement of this Act in the Union Territory of Goa, Daman and Diu.

(I A) No person shall transport or store or cause to be transported or stored any mineral otherwise than in accordance with the provisions of this Act and the rules made thereunder. (2) No reconnaissance permit, prospecting licence or mining lease shall be granted otherwise than in accordance with the provisions of this Act and the rules made thereunder. (3) Any State Government may, after prior consultation with the Central Government and in accordance with the rules made under section 18, undertake reconnaissance, prospecting or mining operations with r~spect to any mineral specified in the First Schedule in any area within that State which is not already held under any reconnaissance permit, prospecting licence or mining lease" In terms of Section 14 of the said Act, Sections 5 to 13 will have no application in relation to minor minerals. Section 15 ofthe said Act empowers the respective State Governments to make rules in respect of minor minerals.

Sub-section (2) of Section 15 provides that so long as no rules are framed by the State in terms of sub-section (I) ofSection 15 the old rules would continue to govern the field. Pursuant to or in furtherance of the said power, the State ,. ,. of Punjab framed rules known as Punjab Minor Mineral Rules, 1964 in terms whereof the Punjab Minor Mineral Rules, 1934 were repealed. In terms of Rule 2 of the 1934 Rules China Clay was declared to be a minor mineral. The State of Delhi, however, made rules only in the year 1969. Prior thereto, presumably the rules made by the State of Punjab were governing the field. The attention of the High Court and the Reference Court was not drawn to the aforementioned statutes and the statutory rules. The application of the ' said rules will go a long way in not only determining the question of res judicata but also the question as regard to the limited nature of right the Respondents under the aforementioned statutes, if any.

Determination on the said issues would be relevant for the purpose of computing the amount of compensation. "Ownership" in respect of an immovable property would mean a bundle of rights. Only a proprietor of a surface land will have the sub-soil right. But such rights may also have certain limitations. Tenure holder or sub-tenure holder and/or an agricultural tenant created for carrying out agricultural operation per se would not become the owner of the sub-soil right. The right granted in favour of such sub-tenure holder, tenure holder or the agricultural tenant would, thus, depend upon the concerned statute and/ or the relevant covenants contained in the grant. A three-Judge Bench of this Court in the State of Punjab v. Mis Vishkarma and Co. etc..

JT (1993) 1 SC 448, construing the provisions of Sections 31, 41 and 42 of the Punjab Land Revenue Act, 1887, held : "Brick-earth with which we are concerned in the present appeals, j is a minor mineral was not disputed, although it is not any of the mines or minerals covered by Section 41 of the Revenue Act as would make it become the property ofthe State. Ifthe owner of such brick-earth is the State of Punjab, liability to pay royalty for removal of such brick-earth and to obtain permit or licence for such removal, necessarily arises because of the operation of the Act and the Rules. But the courts below have concurrently found that the brick-earth concerned in the suits out of which the present appeals have arisen was in lands which formed the estates of the private owners and as such the same belonged to such landowners. It is so found on their reading of the entries in Wajib-ul-arz pertaining to the concerned estates.

That Wajib-ul-arz is a document included in the record-of- -- rights cannot be disputed since it contains the statements on matters envisaged under clauses (a) and (b) of sub-section (2) of Section 31 of the Act. According to the courts below Wajib-ul-arz document being record-of-rights of estates completed after November 18, 1871, and there being nothing expressly stated in them that the forest or quarry or land or interest in the estates belong to the Government, the lands in such estates including brick-earth in them shall be presumed to belong to the concerned landowners as is declared in sub-section (2) of Section 42 of the Revenue Act. " From the aforementioned passage it is evident that the brick-earth was the subject matter of transfer in favour of the land owners which was apparent from the entries in Wazib-ul-arz pertaining to the concerned estates.

The entry in the Wazib-ul-arz in the instant case reads as under: "Section Detail Subject Except the 29 bighas land of road IO Ownership of the Nazul land or Forest or without ownership or not any other land of Forest, unpossessed or untitled or non- Mines, buildings, Nazal, selfresidential land or Mines or fertile, Marbal, metals, stones, Ruins or old buildings or self- coal, sand is under the ownership · fertile and no other land which ofthe Government. But within the give natural fertility is situated boundires of this village mountain within the revenue estate village is stated to be existed. If the Masood Pur. Government wants to take the stone then the Govt. will not liable to pay the price of that stone. If any mine is found then the same will be property of the Government. " The evidentiary value of wazib-ul-arz is no longer res integra in view of the decisions cited at the bat including Prem Chand v. State ofHaryana, AIR (1972) (P&H) 50 DB; Man Chand v.

State ofHaryana, 74 ( 1972) PLR 508, Chunni Lal v. State ofHaryana, 73 (1971) PLR 159, Gram Panchayat v. State of Himacha/ Pradesh, AIR (1973) HP 7. The said decisions lay down the principle that in absence of any entry made in favour of the Government, with respect to mines and minerals a presumption shall be drawn that the same belongs to the landowner being a tenure-holder. We have noticed hereinbefore a large number of decisions ofthe Judicial Committee and different High Courts which lay down the principle that only the landowners have subsoil rights but so fa'l',,as the sub-tenureholders and others are concerned no such presumption shall be raised unless it is proved from 'the express covenants made in the grant and/or the deed of assignment or sale that such right has expressly been conveyed. Section 42(2) of the i Punjab Land Revenue Act merely states that in absence of any entry made in the record-of-rights after 18. 11.

1971, it shall be presumed that the right in any forests, quarries or any such land or interest would be in the landowners. 'Wazib-ul-arz' also indicates the custom prevailing in the village. The entry in the Wazib-ul-arz is categorical about the fact that the Government is not the owner of any forest, mines, buildings nazul, self-fertile, marble, metals, stones, coal or sand. It, however, categorically states that there are mountains in the village and the Government can extract stones without paying any price therefor. It further categorically states that if any mine (in future) is .. found, the same would be the property of the Government. The entry ex facie does not show that china clay as a minor mineral was available in the land in question. Existence of the said mineral having not been expressly recorded in the record of rights, no presumption can be raised that the granter had an intention to pass on title ofthe subsoil in relation to china clay in favour of the grantee.

It is one thing to say that the Government or the State did not have any right over the minor minerals per se but it is another thing to say that the Government did not have any right in respect of the minerals or metals which had been mentioned therein but in the event a new mine is found, the same would vest in the Government. The presumption envisaged under sub-section (2) of Section 42, therefore, in our considered opinion may J not be raised in favour of the grantee as it is not shown that mines of china clay were existing at the relevant time. The expression 'Mine' having regard to its definition contained in Section 20) of the Mines Act, 1952 is of wide import. In the village in question there may exist one mine for extracting one mineral at one point of time but other mines containing either the same or different minerals might not be existing in other parts of the same village at the relevant time and may be found in other part of the village at the later part of time.

The expression 'mine', thus, may have to be given its natural meaning having regard to the purpose for which such entries are made. It is true that the legislature used two different phraseologies 'shall be presumed' -----( and 'may be presumed' in Section 42 of the Punjab Land Revenue Act and - furthermore although provided for the mode and manner of rebuttal of such presumption as regards right to mines and minerals said to be vested in the Government vis-a-vis absence thereof in relation to the lands presumed to be retained by the landowners but the same would not mean that the words 'shall presume' would be_ conclusive. The meaning of expressions 'may presume' and 'shall presurn~'have been explained in Section 4 of the Indian Evidence Act, 1874, from a perusal whereof it would be evident that whenever it is directed that the court shall presume a fact it shall regard such fact as proved unless disproved.

In terms of the said provision, thus, the expression 'shall presume' cannot be held to be synonymous with 'conclusive proof'. It is interesting to note that this Court in Raja Rajinder Chand v. Mst. Sukhi and Ors. , AIR (1957) SC 286 whereupon Mr. Rao has placed strong reliance observed: "...... Whether the statutory presumption attaching to an entry in the Wajib-ul-arz has been properly displaced or not must depend on the facts of each case. In cases under our consideration, we hold, for the reasons already given by us, that the entries in the Wazib-ul-arz with . , regard to the right of the Raja in respect of chi! trees standing on cultivated and proprietary lands ofthe adna-maliks, do not and cannot show any existing custom of the village, the right being a sovereign right; nor do they show in unambiguous terms that the sovereign right was surrendered or relinquished in favour of the Raja.

In our view, it would be an unwarranted stretching of the presumption to hold that the entries in the Wajib-ul-arz make out a grant ofa sovereign right in favour of the Raja: to do so would be to hold that the Wajibul-arz creates a title in favour of the Raja which it obviously cannot". The said decision, therefore, is an authority for the proposition that no title can be claimed on the basis of an entry made in the revenue records as it is for the grantee to show that such title has been conveyed to him by the owner thereof. We may, however, point out that in Mis Vishkarma and Co. , (supra), the effect of the provisions of the Punjab Minor Minerals Rules, 1934 or the provisions ofthe Mines and Minerals (Regulation & Development) Act, 1957 did not fall for consideration. In Bheemagari Bhaskar and Ors. v. Revenue Divisional Officer, Bhongir and Ors.

, (2002) I ALT 159 the Division Bench of the Andhra Pradesh High Court, wherein one of us was a member, while analyzing the provisions of the A. P. (A. A. ) Estates (Abolition and Conversion into Ryotwari) Act, 1948 vis-a-vis Mines and Minerals (Regulation and Development) Act, 1957 and A. P. Minor Mineral Concession Rules, 1966, held that the agriculturists could , not have had any right ov~r minor mineral stating: "In terms ofEntry 54 of List I of the VII Schedule of the Constitution of India, by enacting the said Act, the Parliament has taken over control over mines and minerals. Keeping in view the declaration made in that regard under Sections 18 and 20 thereof, as envisaged in Entry 54 R. AM-O&~(DTBY-LRS:{S:B:SINID'i;T. ) I. "Name Compensation Interest Interest upto Deficit Amount Received 3 J. 03. 91refundable upto 31. 03. 91 At the rate of 15% p. a. in case of restitution as per terms of order dated 23. 03. 87 passed by this Hon'ble Court I. Sh. L. R. Gupta 2,87,72,757.

60 68,09,404 1,54,66,355 86,55,951 2. Mrs. Pramod I0,07,04,651. 23 2,87,05,730 5,41,28,748 2,54,23,018 Gupta '. > ·-· 3. Sh. Rajiv 5,27,50,055. 56 1,25,11,387 2,83,53,153 1,58,41,766 Gupta 4. Sh. Sanjay 5,27,50,055. 56 1, 15,22,534 2,83,53, 153 1,68,30,619 Gupta 5. Ms. Sumangli 5,27,50,055. 60 1,47,26,420 2,83,53,153 1,36,26,733 Gupta Total 28,27,27,575. 55 7,42,75,475 15,46,53,562 8,03,78,087" The aforementioned direction, as has been rightly submitted by the learned counsel Mr. Bhat, is wholly unjustified and unwarranted. The said direction is, therefore, set aside. It will also be relevant to noti~e the",third proviso appended to sub- ~ section (2) of Section 31 of the Land' Acquisition Act which reads as under "Provided also that nothing herein contained shall affect the liability of any person, who may receive the whole or any part of any compensation awarded under this Act, to pay the same to the person lawfully entitled thereto.

" In view of the aforementioned provision there cannot be any doubt whatsoever that if and when an occasion arises either on the basis of an application filed by the interested parties or otherwise and/or upon disposal of the pending appeals, in the event Shri L. R. Gupta, HUF is found to have no title over the land in question, it would be bound to refund the entire amount of compensation received by it together with such interest thereon, as may be determined applying the doctrine of 'restitution'. I. A. NOS. 17-18 OF 2005: We have hereinbefore noticed the claim of Shri Madan Gopal Gupta and Shri Sudhir Jain. The contention ofthe interveners in the aforementioned application, is that no Bhumidhari right could be granted in favour of Guiab Sundari and in that view of the matter any finding on Issue No. I as framed by the Reference Court and affirmed by the High Court, should be set aside by this Court. In these appeals, this Court is concerned only with the determ_i!

iation of the question raised before us and not the inter se dispute of title between the parties. Such a question as and when adjudicated upon by the competent courts in appropriate proceedings will be binding on the parties thereto inasmuch as only who succeeds in the said proceedings will be entitled to the amount of compensation. Keeping in view the fact that neither the Reference Court nor the High Court had any opportunity to examine the said questio"ij as has been contended by the applicants herein, we would observe that this Court had not determined the question that the Respondents herein being·successors of Guiab Sundari were entitled to the Bhumidhari rights by teason oftQ,e:alleg~q dee_<! , ~f sa\e,. exe7uted in their favour, but we only h~ve proceeded-on-the basis-that-assuming-they-are Bhumidhars; in what manner _,.. their claim for awarding compensation should be dealt with.

Any observation made herein by us should not be taken to mean that we have determined the A question of entitlement of the Respondents herein as Bhumidhar under the Delhi Land Reforms Act finally or otherwise. Such a finding has to be arrived at by the courts determining the said question in the pending proceedings. CONNECTED MATTERS: We may, however, notice that in the appeal arising out of SLP (Civil) CC No. 5724 of2004 an award was made@ Rs. 1. 74 per sq. yard, although the claim of Rs. 30 per sq. yard was made and the High Court despite the fact that neither application for amendment nor adduction of additional grounds was filed, blindly followed its decision in other appeals filed by the Union '. (! : of India. No finding therein has also been arrived as to how the judgment and. award of the Reference Court was unsustainable.

CONCLUSION: It is true that Union oflndia did not question the orders disallowing, the application for amendment filed by the Appellants and allowing the applicatio~ for amendment as also adduction of additional evidence by the Respondents herein but having regard to the peculiar facts and circumstances of thi~ ~%!! and in particular the fact that a large amount of public money is involveg,:1Yi: are of the opinion that it is a fit case where our jurisdiction of this ·C:. '! Yf. l under Article 142 of the Constitution should be invoked for the purpose of ~E setting aside the said orders with a view to do complete justice between the parties. . (h1::: ·to i (\ j J In a case where the ! is was mishandled by the State and different courts passed different orders, this Court relying upon a decision of this Court in Deb Narayan Shyam and Ors. v. State of W. B. and Ors. , [2005] 2 SGC;l! S§ ·:p invoked its inherent jurisdiction under Article 142 ofthe Constitution stating: "26...

Therefore, in order to do complete justice to the parties1 it is a fit case where we need to invoke our inherent power undeP;ArJ;i. cle 142 of the Constitution. Learned Senior Counsel appearing fot·. :tlte r· State of West Bengal has made a categorical submission . ,tharalltJJ. e rQJ Amins irrespective oftheir qualifications will be entitled to Pay. :Sqile 6 and no money which has been drawn by the Amins in the 36 writ petitions will be recovered from them prior to 1-10-2001 as dlfect'e'd by the Division Bench of the High Court. Therefore, we direct that all the Am ins irrespective of their qualification in the minimum scale H of pay will be given Scale 6 and they will be entitled to promotion as per rules in Scales 7 and 8 as the case may be. Though the Division Bench has directed that no recovery shall be made from the Amins drawing higher pay scale for the period prior to 1-10-2001 but since the law has now been declared by this Court, we extend that period till this date i. e.

no recovery shall be effected from all these Amins in 36 writ petitions and' they shall be properly fixed in the pay scale provided for Amins in the ROPA Rules and their pay should be protected in the respective pay scales. This is being done because of the fact that the State Government is responsible for creating such anomalous situation. Had the State Government contested the matter and consequently pursued the remedies available under law, then this • anomalous situation would not have been created. Though the Division Bench has given the benefit of the pay scales up to 1-10-200I, the said cut-off date is extended till this date because we are invoking the inherent jurisdiction under Article 142 of the Constitution. " CIVIL APPEAL NOS. 6825- 6832 OF 2003 For the reasons aforementioned, the impugned judgments are set aside and the matters are remitted'to the High Court for fresh consideration, in the light of the observations made hereinbefore.

The appeals are disposed of accordingly. No wsts. Civil Appeal Nos. 950, 2661 of2005, Civil Appeal Nos..... 5566-5569...... of2005 [! \. rising outof. SLP (Civil) No. 14383 of2004, CC Nos. 5724, 9371, 11751 of2004] These appeals were disposed of by the High Court on th