27. Market value for acquired land

In CIVIL APPEAL NO.3332 OF 2001 T.S. Ramachandra Shetty v. Chairman, Karnataka Housing Board& Another[i], the appellant had purchased only an year ago, the that very piece of land for Rs.45,000/- and after an year, the State had given compensation of Rs.1,30,680/-. Speaking for the bench his Lordship Hon. Dalveer Bhandari, J held that the compensation amount cannot be said to be inadequate by any stretch of imagination. After making elaborate discussion of case Law, the court emphasized that a recent sale deed is the best evidence of market value of the acquired land.

In Bangaru Narasingha Rao Naidu & Ors.v. Revenue Divisional Officer, Vizianagaram[ii] the Supreme Court observed that the best evidence of the market value of the acquired land is afforded by transactions of sale in respect of the very acquired land.

In Special Tehsildar Land Acquisition, Vishakapatnam v. A. Mangala Gowri[iii], the Supreme Court observed as under: “The market value postulated in Section 23(1) of the Act designed to award just and fair compensation for the lands acquired. The word “market value” would postulate price of the land prevailing on the date of the publication of the notification under Section 4(1).The acid test that for determining the market value of the land, the price which a willing vendor might reasonably expect to obtain from a willing purchaser would form the basis to fix the market value. For ascertaining the market rate, the Court can rely upon such transactions which would offer a reasonable basis to fix the price. The price paid in sale or purchase of the land acquired within a reasonable time from the date of the acquisition of the land in question would be the best piece of evidence. In its absence the price paid for a land possessing similar advantages to the land in the neighbourhood of the land acquired in or about the time of the notification would supply the data to assess the market value. But exclusion of bona fide and genuine sale transactions in respect of the same land under acquisition and to place reliance on the award of some other land is obviously illegal.

In Periyar and Pareekanni Rubbers Ltd. v. State of Kerala[iv],the Supreme Court observed as under: “..When the Courts are called upon to fix the market value of the land in compulsory acquisition, the best evidence of the value of property is the sale of the acquired land to which the claimant himself is a party, in its absence the sales of the neighbouring lands. In proof of the sale transaction, the relationship of the parties to the transaction, the market conditions, the terms of the sale and the date of the sale are to be looked into. These features would be established by examining either the vendor or vendee and if they are not available, the attesting witnesses who have personal knowledge of the transaction etc. The original sale deed or certified copy thereof should be tendered as evidence. The underlying principle to fix a fair market value with reference to comparable sales is to reduce the element of speculation. In a comparable sale the features are: (1) it must be within a reasonable time of the date of the notification; (2) it should be a bona fide transaction; (3) it should be a sale of the land acquired or land adjacent to the land acquired and (4) it should possess similar advantages. These should be established by adduction of material evidence by examining as stated above the parties to the sale or persons having personal knowledge of the sale transactions. The proof also would focus on the fact whether the transactions are genuine and bona fide transactions.”

In Printers House Pvt. Ltd. v. Cold Storage and Food Products and Ors,[v] the Supreme Court dealt with the similar proposition that the sale price of the acquired land is an important factor for determining the compensation.

In Ranvir Singh and Another v. Union of India[vi] the Supreme Court reiterated the well settled principle that the sale deeds pertaining to the portion of lands which are subject to acquisition would be the most relevant piece of evidence for assessing the market value of the acquired lands.

In the Dollar Company, Madras v. Collector of Madras [vii] the Supreme court held that: “In determining the market value the main criterion is what a willing purchaser would pay a willing vendor. Ordinarily a party will be entitled to get the amount that he actually and willingly paid for a particular property, provided the transaction be bona fide and entered into with due regard to the prevalent market conditions and is proximate in time to the relevant date under Section 23. The best evidence of the value of property is the sale of the very property to which the claimant is a party. If the sale is of a recent date, then all that need normally be proved is that the sale was between a willing purchaser and a willing seller, that there has not been any appreciable rise or fall since and that nothing has been done on the land during the short interval to raise its value. But if the sale was long ago, may be the Court would examine more recent sales of comparable lands as throwing better light on current land value. Such lands should be close by and not a mile-and-half away as one of the examples pressed here was. So, an actual transaction with respect to the specific land of recent date is a guide-book that courts may notneglect when called upon to pin the precise compensation.”

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[i] decided on 22/01/2009

[ii] (1980) 1SCC 575

[iii] (1991) 4 SCC 218

[iv] (1991) 4 SCC 195, Para 10

[v] (1994) 2 SCC 133

[vi] (2005) 12 SCC 59

[vii] (1975) 2 SCC 730

25. Quashing of proceedings u/s 498-A, IPC

Section 498A of the IPC reads as follows:

"498A. Husband or relative of husband of a woman subjecting her to cruelty. Whoever, being the husband or the relative of the shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation-For the purpose of this section, "cruelty" means-

(a) Any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health whether mental or physical) of the woman; or

(b) Harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her meet such demand".

The said section contains an explanation, which defines "cruelty" as understood under Section 498A IPC. In order to understand the meaning of the expression `cruelty' as envisaged under Section 498A, there must be such a conduct on the part of the husband or relatives of the husband of woman which is of such a nature as to cause the woman to commit suicide or to cause grave injury or danger to life, limb or health whether mental or physical of the woman.

Where the marriage was performed on 23.10.1997 when it is alleged that Rs. 5 lakhs was given by the parents of wife to the family of husband as dowry; the FIR was filed in the month of April, 2002 and in the said FIR there is no allegation that subsequent thereto any harassment was made by the appellant with a view to coercing her or any person related to wife to meet any unlawful demand or any property , neither explanation (a) nor explanation (b) of Section 498 A of IPC is attracted. When it is crystal clear that neither in the FIR nor in the charge sheet there is any ingredient of Section 498A IPC, which could prima facie constitute a case of cruelty as defined in that Section, it can be concluded that no case under Section 498A is made out on the face of the record, and therefore, both the FIR as also the charge sheet are liable to be quashed in exercise of the powers under Section 482 of the CrPC.

(See, Shakson Belthissor v. State of Kerala & Anr decided by supreme court on 06/07/2009)

24. Validation Act- whether transgression on judicial power?

In Civil Appeal 1668/2002 State of HP v. Narayan Singh decided on 8/7/2009 by the apex Court the question was whether the State can in exercise of its sovereign legislative power enact an amendment Act seeking to remove and cure the defects in the previous law despite there being a judgment on the previous law?

It was nobody's case that the State legislature is incompetent to enact the said amended Act. There is also no finding in the impugned judgment that the amendment Act in any way infringes or abridges any fundamental right of the petitioner. Learned High Court did not find that the impugned amendment Act transgresses either of these limitations in any way. But the High Count found that the impugned amendment Act is ultra vires the Constitution as it seeks to nullify the previous judgment. Setting aside the high courts’ decision the apex Court held that in the instant case the amending Act read with its validation clause correctly passed the tests laid down by the Supreme Court in various earlier decisions. Ratio decidedi discussed by the Apex Court is being sumarised hereunder:.

In Rai Ramkrishna and others etc. Vs. State of Bihar - AIR 1963 SC 1667, a Constitution Bench of this Court speaking through Justice Gajendragadkar, as His Lordship then was, explained the principle thus:

Where the Legislature can make a valid law, it may provide not only for the prospective operation of the material provisions of the said law but it can also provide for the retrospective operation of the said provisions. Similarly, there is no doubt that the legislative power in question includes the subsidiary or the auxiliary power to validate laws which have been found to be invalid. If a law passed by a legislature is struck down by the Courts as being invalid for one infirmity or another, it would be competent to the appropriate Legislature to cure the said infirmity and pass a validating law so as to make the provisions of the said earlier law effective from the date when it was passed. This position is treated as firmly established since the decision of the Federal Court in the case of United Provinces v. Mst. Atiqa Begum, 1940 FCR 110: (AIR 1941 FC 16)."

A three-Judge Bench in Meerut Development Authority etc. Vs. Satbir Singh and others AIR 1997 SC 1467, summed up the position in as follows:- "10. It is well settled by catena of decisions of this Court that when this Court in exercise of power of judicial review, has declared a particular statute to be invalid, the Legislature has no power to overrule the judgment; however, it has the power to suitably amend the law by use of appropriate phraseology removing the defects pointed out by the Court and by amending the law inconsistent with the law declared by the Court so that the defects which were pointed out were never on statute for effective enforcement of the law. This Court has considered in extenso the case law in a recent judgment in Indian Aluminium Co. V. State of Kerala (1996) 2 JT (SC) 85: (1996 AIR SCW 1051) had held that such an exercise of power to amend a statute is not an incursion on the judicial power of the Court but is a statutory exercise of the constituent power to suitably amend the law and to validate the actions which have been declared to be invalid..."

A Constitution Bench of the Supreme Court in the case of State of Tamil Nadu Vs. M/s. Arooran Sugars Limited - AIR 1997 SC 1815, reiterated the same principle after analyzing several cases on the point. The Court has summed up the position as follows:-

"16. ...It is open to the legislature to remove the defect pointed out by the court or to amend the definition or any other provision of the Act in question retrospectively. In this process it cannot be said that there has been an encroachment by the legislature over the power of the judiciary. A court's directive must always bind unless the conditions on which it is based are so fundamentally altered that under altered circumstances such decisions could not have been given. This will include removal of the defect in a statute pointed out in the judgment in question, as well as alteration or substitution of provisions of the enactment on which such judgment is based, with retrospective effect..."

In Indra Sawhney Vs. Union of India – AIR 2000 SC 498, Justice Jagannadha Rao speaking for a three-Judge Bench explained the position by saying that it would be permissible for the legislature to remove the defect which is the cause for discrimination and which defect was pointed out by the Court. The learned Judge made it very clear that this defect can be removed both retrospectively and prospectively by legislative action and the previous actions can be validated. But where there is a mere validation without the defect being legislatively removed the legislative action will amount to overruling the judgment by a legislative fiat and that will be invalid.

23. Strict liability of State and act of stranger

One of seven exceptions of rule of strict liability laid down in Rylands v. Flectcer (1868) LR 3 HL 330, is act of stranger i.e. if the escape was caused by the unforeseeable act of a stranger, the rule does not apply. But, in a case of electrocution, the Electricity Board can not escape from its liability on the ground of this exception.

This verdict was given by the Supreme Court in M.P. Electricity Board, Appellant v. Shail Kumar AIR 2002 SC 551. In this case a workman in a factory was riding on a bicycle on the night while returning from his factory. There was rain and hence the road was partially inundated with water. The cyclist did not notice the live wire on the road and hence he rode the vehicle over the wire which twitched and snatched him and he was instantaneously electrocuted. He fell down and died within minutes.

When the action was brought by his widow and minor son, the main contention advanced by the Electricity Board was that one Hari Gaikwad (third respondent) had taken a wire from the main supply line in order to siphon the energy for his own use and the said act of pilferage was done clandestinely without even the notice of the Board, and that the line got unfastened from the hook and it fell on the road over which the cycle ridden by the deceased slide resulting in the instantaneous electrocution. The Board made an endeavour to rely on the exception to the rule of strict liability (Rylands v. Fletcher) being "an act of stranger".

The Supreme Court held that the said exception is not available to the Board as the act attributed to the third respondent should reasonably have been anticipated or at any rate its consequences should have been prevented by the appellant-Board. Even assuming that all such measures have been adopted, a person undertaking an activity involving hazardous or risky exposure to human life, is liable under law of torts to compensate for the injury suffered by any other person, irrespective of any negligence or carelessness on the part of the managers of such undertakings. The basis of such liability is the foreseeable risk inherent in the very nature of such activity. The liability cast on such person is known, in law, as "strict liability". It differs from the liability which arises on account of the negligence or fault in this way i.e. the concept of negligence comprehends that the foreseeable harm could be avoided by taking reasonable precautions. If the defendant did all that which could be done for avoiding the harm he cannot be held liable when the action is based on any negligence attributed. But such consideration is not relevant in cases of strict liability where the defendant is held liable irrespective of whether he could have avoided the particular harm by taking precautions.

The responsibility to supply electric energy in the particular locality is statutorily conferred on the Electricity Board. If the energy so transmitted causes injury or death of a human being, who gets unknowingly trapped into it the primary liability to compensate the sufferer is that of the supplier of the electric energy. So long as the voltage of electricity transmitted through the wires is potentially of dangerous dimension the managers of its supply have the added duty to take all safety measures to prevent escape of such energy or to see that the wire snapped would not remain live on the road as users of such road would be under peril. It is no defense on the part of the management of the Board that somebody committed mischief by siphoning such energy to his private property and that the electrocution was from such diverted line. It is the look out of the managers of the supply system to prevent such pilferage by installing necessary devices. At any rate, if any live wire got snapped and fell on the public road the electric current thereon should automatically have been disrupted. Authorities manning such dangerous commodities have extra duty to chalk out measures to prevent such mishaps.

22. Bigamy - can not be inferred from confession

In P. Satyanarayana and another v. P. Mallaiah 1996 AIR SCW 4000 : (1996) 6 SCC 122 the wife-respondent filed a written complaint before the police under Section 494 of the Indian Penal Code which after investigation was put in Court for trial of the appellant as well as his alleged second wife, the second appellant. Charge was laid against him. In entering upon plea against the charge, the husband-appellant stated:

“True. I have not committed any crime. I have married after ten years of my wife deserted and went away.”

His plea was sought to be read as if he had admitted having married a second time. The learned Trial Magistrate recorded the prosecution evidence and came to the conclusion that there was no legal evidence to prove the factum of marriage on the basis of the tests laid down by this Court in Bhaurao Shankar Lokhande v. State of Maharashtra, (1965)2 SCR 837: (AIR 1965 SC 1564); Kanwal Ram v. Himachal Pradesh Administration, (1966) 1 SCR 539 : (AIR 1966 SC 614) and Priya Bala Ghosh v. Suresh Chandra Ghosh, (1971) 1 SCC 864. He thus acquitted the appellant.

The High Court on a private revision by the wife-respondent, upset the order of acquittal mainly on the ground that there was an admission of the first appellant in response to the charge laid against him. The High Court, therefore, ordered a re-trial.

In SLP the Supreme Court held that the High Court was in error in upsetting the well-considered order of the Trial Magistrate requiring due ceremonies of the alleged second marriage being proved so as to satisfy the tests laid down by this Court in the afore-referred cases. The plea of guilt afore-referred to could at best be understood to mean that the first appellant had taken a wife, but that admission did not necessarily mean that he had taken the second wife after solemnizing a Hindu marriage with her after performing due ceremonies for marriage. Such plea, which he need not have even entered upon, and which was ignorable by the Court, did not absolve the prosecution to otherwise prove its case, that the marriage in question was performed in a regular way so as to visit him with penal consequences. The Supreme Court said that a futile exercise has been enjoined upon the Magistrate by the High Court in ordering a retrial when the evidence, as it was, had been discussed and rejected threadbare.

Interestingly, the Supreme Court recorded the statement of learned counsel for the first appellant to the effect that the said appellant is a class- IV employee working in the State Board of Revenue, fetching about Rs. 1600/- per mensem as salary out of which, under Court orders he pays, in an interim way, Rs. 400/- per mensem as maintenance to the respondent-wife and his grown-up child. A genuine offer was made by learned counsel to increase the said allowance, should the respondent-wife not persist in her claim in branding the first appellant as a bigamist; for if he were to get convicted and imprisoned, she would lose the maintenance altogether. The Supreme Court accepted the argument and said that the complainant cannot afford to kill the goose which lays the golden egg. It was held that hard realities of the situation require that the first appellant is not deprived of his job so that he keeps providing the necessary wherewithal to the respondent-wife and his child, besides maintaining himself. The Supreme Court directed the appellant to pay to the respondent and his child a sum of Rs. 800/- per mensem as offered on these considerations as maintenance allowance.

21. Transfer- an incidence of service

The legal position has been crystallized in number of judgments that transfer is an incidence of service and transfers are made according to administrative exigencies. In Gujarat Electricity Board and another v. Atmaram Sungomal Poshani AIR 1989 SC 1433, the supreme court had an occasion to examine the case of almost similar nature. This court observed as under:

"Transfer from one place to another is necessary in public interest and efficiency in the public administration. Whenever, a public servant is transferred he must comply with the order but if there be any genuine difficulty in proceeding on transfer it is open to him to make representation to the competent authority for stay, modification or cancellation of the transfer order. If the order of transfer is not stayed, modified or cancelled the concerned public servant must carry out the order of transfer. In the absence of any stay of the transfer order a public servant has no justification to avoid or evade the transfer order merely on the ground of having made a representation, or on the ground of his difficulty in moving from one place to the other. If he fails to proceed on transfer in compliance to the transfer order, he would expose himself to disciplinary action under the relevant Rules, as has happened in the instant case. The respondent lost his service as he refused to comply with the order of his transfer from one place to the other."

In Mithilesh Singh v. Union of India and Others, AIR 2003 SC 1724, the settled legal position has been reiterated. The court held that absence from duty without proper intimation is indicated to be a grave offence warranting removal from service.

In Civil Appeal no 968 OF 2009 Tushar D. Bhatt v. State of Gujarat & Another decided by the supreme court on 12/02/2009,(Hon. Dalveer Bhandari and Hon. J.M. Panchal, JJ. ), in the entire tenure of more than 18 years, the appellant was only transferred twice. The appellant defied the transfer order and leveled allegations against his superiors and remained unauthorisedly absent from official duties for more than six months. The supreme court held that In the interest of discipline of any institution or organization such an approach and attitude of the employees cannot be countenanced

20. Students as consumer of the College

Under the Consumer Protection Act, definition of deficiency in service is as under :

`Deficiency' means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service.

In CIVIL APPEAL NO.1135 of 2001 Buddhist Mission DentalCollege & Hospital v. Bhupesh Khurana & Others decided by Supreme Court (Hon. Dalveer Bhandari and Hon. H.S. Bedi, JJ.) on 13/02/2009, the respondent/students took admission in BDS course on the basis of advertisement by the college that it is affiliated to Magadh University and recognized by Dental Council of India. After several months they came to know that the claim made by the appellant/college to the respondents in the advertisement as well as in the prospectus was false, because the appellant college was neither affiliated to the Magadh University nor it was recognized by the Dental Council of India. Their complaint was allowed by the Consumer Commission .

The Commission came to the conclusion that this was a case of total misrepresentation on behalf of the institute which tantamounts to unfair trade practice. The respondents were admitted to the BDS Course for receiving education for consideration by the appellant college which was neither affiliated nor recognized for imparting education. This clearly falls within the purview of deficiency as defined in the Consumer Protection Act, which defines the `deficiency' as under:

Dismissing the appeal of the college, the Supreme Court upheld the verdict of the Commission and even granted additional reliefs. The supreme court passed the following orders:

“ (i) The respondents (complainants) would be entitled to the compensation as directed by the National Consumer Disputes Redressal Commission. In case the amount has been deposited, the respondents would be entitled to withdraw the same.

(ii) We further direct the appellant institute to additionally pay compensation of Rs. one lakh to each of the respondents (complainants).

(iii) We also direct the appellant institute to pay cost of litigation which is quantified at Rs. one lakh to each of the respondents (complainants).

(iv) The appellant institute is directed to pay the amount of compensation and costs within a period of two months.”