National Insurance Co. Ltd. Vs. Mubasir Ahmed and Anr.
EmailAppeal: Civil Appeal No. 5623 of 2006
With
C.A. Nos. 5624 and 5625 of 2006
[From the final Judgment and Order dated 13.7.2004 of the High Court of Judicature, Andhra Pradesh at Hyderabad in C.M.A. No. 3413/2003]
With
C.A. Nos. 5624 and 5625 of 2006
[From the final Judgment and Order dated 13.7.2004 of the High Court of Judicature, Andhra Pradesh at Hyderabad in C.M.A. No. 3413/2003]
Petitioner: National Insurance Co. Ltd.
Respondent: Mubasir Ahmed and Anr.
Apeal: Civil Appeal No. 5623 of 2006
With
C.A. Nos. 5624 and 5625 of 2006
[From the final Judgment and Order dated 13.7.2004 of the High Court of Judicature, Andhra Pradesh at Hyderabad in C.M.A. No. 3413/2003]
With
C.A. Nos. 5624 and 5625 of 2006
[From the final Judgment and Order dated 13.7.2004 of the High Court of Judicature, Andhra Pradesh at Hyderabad in C.M.A. No. 3413/2003]
Judges: Dr. Arijit Pasayat & S.H. Kapadia, JJ.
Date of Judgment: Jan 02, 2007
Appearances:
Mr. P.K. Seth and Mr. Sudhir Kumar Gupta, Advocates for the Appellant.
Mr. K. Maruthi Rao, Mrs. K. Radha and Mrs. Anjani Aiyagari, Advocates for the Respondents.
Mr. K. Maruthi Rao, Mrs. K. Radha and Mrs. Anjani Aiyagari, Advocates for the Respondents.
Head Note:
SERVICE AND LABOUR LAWS
Workmen’s Compensation Act, 1923
Sections 4 and 22 – Workmen – Compensation for injury suffered in the course of employment – Loss of earning capacity – How to be assessed – In various cases Doctors assessing the percentage of permanent and temporary disablement suffered by workmen between 65 to 80 per cent – Commissioner awarding compensation accordingly on the basis of the percentage of disability determined by the doctors – However High Court in all such cases awarding higher compensation holding that there was hundred per cent loss of earning capacity – Validity. Held compensation having been awarded by the Commissioner on the basis of the disability indicated by the doctors High Court erred in holding that there was hundred per cent loss of earning capacity without indicating any reason or basis. Order passed by Commissioner restored.
Workmen’s Compensation Act, 1923
Sections 4 and 22 – Workmen – Compensation for injury suffered in the course of employment – Loss of earning capacity – How to be assessed – In various cases Doctors assessing the percentage of permanent and temporary disablement suffered by workmen between 65 to 80 per cent – Commissioner awarding compensation accordingly on the basis of the percentage of disability determined by the doctors – However High Court in all such cases awarding higher compensation holding that there was hundred per cent loss of earning capacity – Validity. Held compensation having been awarded by the Commissioner on the basis of the disability indicated by the doctors High Court erred in holding that there was hundred per cent loss of earning capacity without indicating any reason or basis. Order passed by Commissioner restored.
Held:
Loss of earning capacity is, therefore, not a substitute for percentage of the physical disablement. It is one of the factors taken into account. In the instant case the doctor who examined the claimant also noted about the functional disablement. In other words, the doctor had taken note of the relevant factors relating to loss of earning capacity. Without indicating any reason or basis the High Court held that there was 100% loss of earning capacity. Since no basis was indicated in support of the conclusion, same cannot be maintained. Therefore, we set aside that part of the High Court’s order and restore that of the Commissioner, in view of the facts situation. (Para 8)
The starting point is on completion of one month from the date on which it fell due. Obviously it cannot be the date of accident. Since no indication is there as when it becomes due, it has to be taken to be the date of adjudication of the claim. This appears to be so because Section 4A(1) prescribes that compensation under Section 4 shall be paid as soon as it falls due. The compensation becomes due on the basis of adjudication of the claim made. The adjudication under Section 4 in some cases involves the assessment of loss of earning capacity by a qualified medical practitioner. Unless adjudication is done, question of compensation becoming due does not arise. The position becomes clearer on a reading of sub-section (2) of Section 4A. It provides that provisional payment to the extent of admitted liability has to be made when employer does not accept the liability for compensation to the extent claimed. The crucial expression is ‘falls due’. Significantly, legislature has not used the expression ‘from the date of accident’. Unless there is an adjudication, the question of an amount falling due does not arise. (Para 9)
The starting point is on completion of one month from the date on which it fell due. Obviously it cannot be the date of accident. Since no indication is there as when it becomes due, it has to be taken to be the date of adjudication of the claim. This appears to be so because Section 4A(1) prescribes that compensation under Section 4 shall be paid as soon as it falls due. The compensation becomes due on the basis of adjudication of the claim made. The adjudication under Section 4 in some cases involves the assessment of loss of earning capacity by a qualified medical practitioner. Unless adjudication is done, question of compensation becoming due does not arise. The position becomes clearer on a reading of sub-section (2) of Section 4A. It provides that provisional payment to the extent of admitted liability has to be made when employer does not accept the liability for compensation to the extent claimed. The crucial expression is ‘falls due’. Significantly, legislature has not used the expression ‘from the date of accident’. Unless there is an adjudication, the question of an amount falling due does not arise. (Para 9)
Cases Reffered:
1. Maghar Singh v. Jashwant Singh [JT 1998 (7) SC 544] (Para 9)
JUDGEMENT:
Dr. ARIJIT PASAYAT, J.
1. Challenge in these appeals is to the judgment rendered in each case by learned Single Judge of the Andhra Pradesh High Court. Respondent no.1 in each case was working as employee of respondent no.2. Each of them filed a claim petition under Section 22 of the Workmen’s Compensation Act, 1923 (in short the ‘Act’) claiming compensation for alleged personal injuries sustained in course of employment. In each case the claimant claimed to be either a labour or cleaner or driver of the vehicle which was involved in the accident. While respondent no.1 in Civil Appeal No.5625 of 2006 claimed to be driver of the vehicle No.APJ-1907, the respondent no.1 in Civil Appeal No.5623 of 2006 claimed to be the cleaner of the vehicle. Respondent no.1 in Civil Appeal No. 5624 claimed to be employed in a different vehicle. The claim petitions were adjudicated by the Commissioner for Workmens’ Compensation and Assistant Commissioner of Labour, Nizamabad (hereinafter referred to as the ‘Commissioner’).
2. In order to prove the nature of injuries sustained and the alleged loss of earning capacity, a doctor was examined as witness. The doctor who was examined, indicated the percentage of permanent and temporary disablement, functional disability and loss of earning capacity as follows:
Civil Appeal No. 5623 of 2006
Permanent/partial disability : 65%
Functional disability : 65%
Loss of earning capacity : 80%
Civil Appeal No. 5624 of 2006
Permanent/partial disability : 65%
Functional disability : 65%
Loss of earning capacity : 65%
Civil Appeal No. 5625 of 2006
Permanent/partial disability : 65%
Functional disability : 70%
Loss of earning capacity : 80%
3. The appellant-insurer of offending vehicle did not question correctness of the award made by the Commissioner. The claimant in each case preferred an appeal under Section 30 of the Act. By the impugned judgment in each case the High Court held that there was 100% loss of earning capacity and, therefore, awarded compensation. It also directed grant of interest @ 12% p.a. from date of accident till actual realization.
4. In support of the appeals, learned counsel for the appellant submitted that the judgment of the High Court without any discussion on the loss of earning capacity is clearly unsustainable, and in addition question of payment of 12% p.a. interest does not arise. The rate of interest is high.
5. Learned counsel for the respondents supported the impugned order of the High Court in each case.
6. In order to decide the basic issues Sections 4 and 4A of the Act need to be noted. They read as follows:
‘4. Amount of compensation. – (1) Subject to the provisions of this Act, the amount of compensation shall be as follows, namely :
(a) where death
results from the
injury
(b) where
permanent total
disablement
results from injury
Explanation I – For the purposes of clause (a) and clause (b), ‘relevant factor’, in relation to a workman means the factor specified in the second column of schedule IV against the entry in the first column of the schedule specifying the number of years which are the same as the completed years of the age of the workman on his last birthday immediately preceding the date on which the compensation fell due;
Explanation II – Where the monthly wages of a workman exceed one thousand rupees, his monthly wages for the purposes of clause (a) and clause (b) shall be deemed to be one thousand rupees only.
Explanation I – Where more injuries than one are caused by the same accident, the amount of compensation payable under this head shall be aggregated but not so in any case as to exceed the amount which would have been payable if permanent total disablement had resulted from the injuries.
Explanation II – In assessing the loss of earning capacity for the purposes of sub-clause (ii), the qualified medical practitioner shall have due regard to the percentage of loss of earning capacity in relation to different injuries specified in schedule I;
Xx xx xx
4A. Compensation to be paid when due and penalty for default (1) Compensation under Section 4 shall be paid as soon as it falls due.
(2) In cases where the employer does not accept the liability for compensation to the extent claimed, he shall be bound to make provisional payment based on the event of liability which he accepts, and, such payment shall be deposited with the Commissioner or made to the workman, as the case may be without prejudice to the right of the workman to make any further claim.
(3) Where any employer is in default in paying the compensation due under this Act within one month from the date it fell due, the Commissioner may direct that, in addition to the amount of the arrears, simple interest at the rate of six per cent per annum on the amount due together with, if in the opinion of the Commissioner there is no justification for the delay, a further sum not exceeding fifty per cent of such amount, shall be recovered from the employer by way of penalty.’
7. These cases related to injuries which were not specified in Schedule I and as such cases are covered by Section 4(1)(c) (ii) Explanation. In terms of Explanation II the qualified medical practitioner has to assess loss of earning capacity having due regard to percentage of loss of earning capacity in relation to the different injuries in Schedule I. Explanation I also provides that where there are more than one injury, the aggregate has to be taken, so that the amount which would be payable for permanent total disablement is not exceeded.
8. Loss of earning capacity is, therefore, not a substitute for percentage of the physical disablement. It is one of the factors taken into account. In the instant case the doctor who examined the claimant also noted about the functional disablement. In other words, the doctor had taken note of the relevant factors relating to loss of earning capacity. Without indicating any reason or basis the High Court held that there was 100% loss of earning capacity. Since no basis was indicated in support of the conclusion, same cannot be maintained. Therefore, we set aside that part of the High Court’s order and restore that of the Commissioner, in view of the facts situation. Coming to the question of liability to pay interest, Section 4A(3) deals with that question. The provision has been quoted above.
9. Interest is payable under Section 4A(3) if there is default in paying the compensation due under this Act within one month from the date it fell due. The question of liability under Section 4A was dealt with by this Court in Maghar Singh v. Jashwant Singh1. By Amending Act, 14 of 1995, Section 4A of the Act was amended, inter alia, fixing the minimum rate of interest to be simple interest @ 12%. In the instant case, the accident took place after the amendment and, therefore, the rate of 12% as fixed by the High Court cannot be faulted. But the period as fixed by it is wrong. The starting point is on completion of one month from the date on which it fell due. Obviously it cannot be the date of accident. Since no indication is there as when it becomes due, it has to be taken to be the date of adjudication of the claim. This appears to be so because Section 4A(1) prescribes that compensation under Section 4 shall be paid as soon as it falls due. The compensation becomes due on the basis of adjudication of the claim made. The adjudication under Section 4 in some cases involves the assessment of loss of earning capacity by a qualified medical practitioner. Unless adjudication is done, question of compensation becoming due does not arise. The position becomes clearer on a reading of sub-section (2) of Section 4A. It provides that provisional payment to the extent of admitted liability has to be made when employer does not accept the liability for compensation to the extent claimed. The crucial expression is ‘falls due’. Significantly, legislature has not used the expression ‘from the date of accident’. Unless there is an adjudication, the question of an amount falling due does not arise.
10. The appeals are allowed to the extent indicated, without any order as to costs.
JT 2007 (3) SC 181
The Vyalikaval House Building Co-op. Society by its Secretary v. V.Chandrappa and Ors
Civil Appeal No. 2086-2087 of 2004
(From Final Judgments and Orders dated 17.01.2000 and 22.03.2002 of High Court of Karnataka at Bangalore in Writ Appeal No.2294/1999 and R.P. No.156/2000 in Writ Appeal No.2294/1999 respectively)
G.P. MATHUR and A.K. MATHUR, JJ.
Dt.02.02.2007
Appearances
Mr. S.N. Bhat and Mr. Bhagabati Prasad Padhy, Advocates for the Appellant.
Mr. V.A. Mohta, Senior Advocate, Mr. S.K. Kulkarni, Mr.Neelakant Naiyan, Mr. Vijay Kumar, Mr. Sanjay R. Hegde, Mr.Amit K. Mishra and Mr. Shashidhar, Advocates with him for the Respondents.
LAND ACQUISITION
Land Acquisition Act, 1894
Sections 4, 5A and 6 – Acquisition of land – Challenge to acquisition proceedings – Delay and acquiescence – Effect – Acquisition of the land belonging to respondents for co-operative house construction – Respondent land owners accepting the compensation – In respect of some other land covered by the same Notification High Court holding the acquisition proceedings to be mala fide and quashing the proceedings since the acquisition was found to have been not for public purpose – Said decision confirmed by the Supreme Court – Thereafter respondents filing a writ challenging the acquisition of their lands – Writ filed after about 14 years- Single Judge dismissing the writ as being hopelessly barred by time – Division Bench however condoning the long delay and allowing the writ – Validity. Held since the acquisition had been found to be totally mala fide and not for bona fide purpose the ground of delay and acquiescence had no substance. High Court therefore correct in condoning the delay and allowing the writ holding the acquisition proceedings to be invalid.
HELD
When the acquisition has been found to be totally mala fide and not for bona fide purpose, the ground of delay and acquiescence in the present case has no substance. Learned counsel for the appellant tried to persuade us that as the amount in question has been accepted by the respondents, it is not open for them now to wriggle out from that agreement. It may be that the appellant might have tried to settle out the acquisition but when the whole acquisition emanates from the aforesaid tainted notification any settlement on the basis of that notification cannot be validated. The fact remains that when the basic notification under which the present land is sought to be acquired stood vitiated then whatever money that the appellant has paid, is at its own risk. Once the notification goes no benefit could be derived by the appellant. We are satisfied that issue of notification was mala fide and it was not for public purpose, as has been observed by this Court, nothing turns on the question of delay and acquiescence. Learned Counsel for respondents raised other pleas like decree for partition was granted among brothers and they were not made parties, we are not going into those questions when we are satisfied that when acquisition stand vitiated on account of mala fide, nothing remains further. (Para 8)
In the light of the discussions made above, the view taken by the Division Bench of the High Court of Karnataka in the impugned judgment is correct and we uphold the same and dismiss both the appeals. (Para 9)
Cases Referred:
1. H.M.T. House Building Co-operative Society v. M. Venkatswamappa and Ors. etc. etc. [(1995) 3 SCC 128] (Para 6)
2. H.M.T. House Building Co-operative Society v. Syed Khader and Ors. [JT 1995 (2) SC 543] (Para 6)
3. Narayana Reddy v. State of Karnataka [ILR 1991 Kar. 2248] (Para 2)
A.K. MATHUR, J.
1. These appeals are directed against the order passed by the Division Bench of the Karnataka High Court at Bangalore in Writ Appeal No.2294 of 1999 dated 17.1.2000 whereby the Division Bench of the High Court has set aside the order dated 11.11.1998 in Writ Petition No.30622 of 1998 passed by learned Single Judge for the reasons mentioned in Writ Appeal No.2188 of 1998 disposed of by the Division Bench of the High Court on 17.1.2000 and the order dated 22.3.2002 passed by the Division Bench in the Review Petition No.156 of 2000 in W.A.No.2294 of 1999.
2. This case has a chequered history, therefore, in order to deal with it, it will be necessary to refer to certain facts. A notification was issued on 22.12.1984 under Section 4 of the Land Acquisition Act, 1894 (hereinafter to be referred to as ‘the Act’) for acquiring 176 acres and 5 guntas of land in Nagavara village of Bangalore North Taluk. Declaration under Section 6 of the Act was issued on 21.2.1986 and the award was passed on the basis of the aforesaid notification on 16.11.1987. It was alleged that the possession of the land was taken on different dates up to the year 1992. It was alleged that possession of 31 acres and 21 guntas of land including an area measuring 1 acre and 25 guntas situated in Survey No.78/4 of Nagavara village was taken on 6.8.1988. Aggrieved against the aforesaid notification and the award private petitioners filed writ petition assailing the validity thereof on variety of grounds. It was alleged that this land measuring 8 acres and 2 guntas was owned jointly by a family comprising 5 brothers, namely; Pattadi Haumanthappa, Pattadi Venkateshappa, Pattadi Nannappa, Pattadi Lakshmaiah and Pattadi Nagappa, all deceased and survived by their legal heirs, who filed the writ petition. The main grievance of these petitioners was that this notification was very adversely commented by the Karnataka High Court in the case of Narayana Reddy v. State of Karnataka1 and the decision of the Division Bench of the Karnataka High Court in Writ Appeal Nos.2336-2343 of 1997 and connected matters which were disposed of on 5.3.1998. In that judgment it was held that the whole acquisition proceedings stand vitiated on account of fraud, the appellant Society was also found to be not bonafide housing society, therefore, on the basis of the same reasoning the present notification was also challenged and it was urged that the impugned notification also suffered from same vice of mala fide, therefore, it should be quashed. It was alleged that the delay in approaching the Court was irrelevant since the validity of the same notification in which other lands were acquired along with the present land has been found to be void.
3. This writ petition was contested by the appellant-society as respondent and it was alleged that it was hopelessly barred by time being delayed by 14 years and it was also submitted that the writ petitioners had participated in the inquiry under section 5A of the Act and have also received substantial amount from the appellant-society pursuant to the agreement executed in their favour. Learned Single Judge dismissed the writ petition on the ground of being hopelessly barred by time and the writ petitioners participated in the proceedings therefore they have acquiesced in the matter. Aggrieved against this order passed by learned Single Judge, a writ appeal was filed by the respondents which came to be allowed by the Division Bench for the reasons mentioned in another writ appeal decided by the same Division Bench headed by the Chief Justice of the High Court on 17.1.2000. In that writ appeal the Division Bench held that the entire acquisition on behalf of the appellant-society was actuated with fraud as held in Narayana Reddy v. State of Karnataka (supra) In that case it was held as follows :
‘ As seen from the findings of G.V.K.Rao Inquiry Report, in respect of five respondent societies and the report of the Joint Registrar in respect of Vyalikaval House Building Co-operative Society, these Societies had indulged in enrolling large number of members illegally inclusive of ineligible members and had also indulged in enrolling large number of bogus members. The only inference that is possible from this is that the office bearers of the societies had entered into unholy alliance with the respective agents for the purpose of making money, as submitted for the petitioners otherwise, there is no reason as to why such an Agreement should have been brought about by the office bearers of the Society and the agents. Unless these persons had the intention of making huge profits as alleged by the petitioners, they would not have indulged in enrolment of ineligible and bogus members. The circumstance that without considering all these relevant materials the Government had accorded its approval, is sufficient to hold that the agents had prevailed upon the Government to take a decision to acquire the lands without going into all those relevant facts. The irresistible inference flowing from the facts and circumstances of these cases is, whereas the poser conferred under the Land Acquisition Act is for acquiring lands for carrying out housing scheme by a housing society, in each of the cases the acquisition of lands is not for a bona fide housing scheme but is substantially for the purpose of enabling the concerned office bearers of respondent-societies and their agents to indulge in sale of sites in the guise of allotment of sites to the Members/ Associate members of the society to make money as alleged by the petitioners and therefore it is a clear case of colourable exercise of power. Thus the decision of the Government to acquire the lands suffers from legal mala fides and therefore the impugned Notifications are liable to be struck down.’
4. In view of aforesaid observation, their Lordships of Division Bench held that since the acquisition was colourable exercise of the power, therefore, delay cannot be a good ground to dismiss the writ petition. The said judgment of the Division Bench of the High Court of Karnataka was affirmed by this Court in Special Leave Petition Nos.(c)..CC 525-532 of 1999 and Special Leave Petition Nos.(c) ..CC 504-522 of 1999 decided on 14.7.1999 and it was held that the appellant-society is a bogus house building society and accordingly, the order passed by the learned Single Judge was set aside by Division Bench. Against the order of the Division Bench passed in Writ Appeal No.2294 of 1999 a review petition was filed which was dismissed on 22.3.2002. Hence both these appeals.
5. Learned counsel for the appellant urged before us that the view taken by the Division Bench of the High Court is not correct as the Division Bench should not have condoned the inordinate delay of 14 years and secondly, learned counsel further submitted that the respondents herein being the beneficiary had entered into an agreement of sale and had accepted the whole amount not to file objections under Section 5A of the Act for acquiring the aforesaid land. Learned counsel for the appellant has emphasized that the Division Bench has gone wrong in setting aside the order of the learned Single Judge as the learned Single Judge has discussed the factual controversy in greater detail.
6. As against this, learned counsel for the respondents submitted that there was not one judgment but there are number of judgments in which such acquisition of land has been set aside. Learned counsel for the respondents invited our attention to two decisions of this Court in the case of H.M.T. House Building Co-operative Society v. Syed Khader and Ors.1 and H.M.T. House Building Co-operative Society v. M. Venkatswamappa and Ors. etc. etc.2 in which similar societies filed Special Leave Petitions and this Court affirmed the order of the Karnataka High Court and held that the whole exercise of acquiring the land by various societies including the present appellant-society was actuated with mala fide and quashed all acquisitions. In this connection, a reference may be made to H.M.T. House Building Co-operative Soceity’s case (supra) wherein the similar question was raised by the Co-operative Society like the appellant herein and in that context their Lordships framed the question in paragraph 18 of the judgment which heads as follows :
’18. Now the question which is to be answered is as to whether in view of the definition of ‘public purpose’ introduced by the aforesaid Amending Act 68 of 1984 in Section 3(f)(vi), is it open to the appropriate Government to acquire land for cooperative society for housing scheme without making proper enquiry about the members of the society and without putting such housing cooperative society to term in respect of nature of construction, the area to be allotted to the members and restrictions on transfer thereof ?’
This question was answered by their Lordships in paragraphs 21 and 22 which reads thus:
‘…That is why the framers of the Act have required the appropriate Government to grant prior approval of any housing scheme presented by any cooperative society before the lands are acquired treating such requirement and acquisition for public purpose. It is incumbent on the part of the appropriate Government while granting approval to examine different aspects of the matter so that it may serve the public interest and not the interest of few who can as well afford to acquire such lands by negotiation in open market. According to us, the State Government has not granted the prior approval in terms of Section 3(f)(vi) of the Act to the housing scheme in question. The power under Section 4(1) and 6(1) of the Act has been exercised for extraneous consideration and at the instance of the persons who had no role in the decision-making process whether the acquisition of the lands in question shall be for a public purpose. This itself is enough to vitiate the whole acquisition proceeding and render the same invalid.’
22. In the present case there has been contravention of Section 3(f)(vi) of the Act inasmuch as there was no prior approval of the State Government as required by the said section before steps for acquisition of the lands were taken. The report of Shri G.V.K.Rao points out as to how the appellant-Society admitted large number of persons as members who cannot be held to be genuine members, the sole object being to transfer the lands acquired for ‘public purpose’, to outsiders as part of commercial venture, undertaken by the office-bearer of the appellant-Society. We are in agreement wit the finding of the High Court that the statutory notifications issued under Sections 4(1) and 6(1) of the Act have been issued due to the role played by M/s. S.R. Constructions, Respondent No.11. On the materials on record, the High Court was justified in coming to the conclusion that the proceedings for acquisition of the lands had not been initiated because the State Government was satisfied about the existence of the public purpose but at the instance of agent who had collected more than a crore of rupees for getting the lands acquired by the State Government.’
7. Similarly, in H.M.T. House Building Cooperative Society (supra) in which the present appellant was one of the societies, which challenged the order of the Division Bench of the High Court of Karnataka, their Lordships dismissed the Special Leave Petition following the judgment in H.M.T. House Building Cooperative Society (supra). In paragraph 3 of the judgment while dealing with the facts of this society their Lordships observed that this society had advertised inviting persons who want to have mansions in the city of Bangalore and had also given the names and addresses of the representative at Dubai. It was held that on the basis of the aforesaid material the High Court has rightly come to the conclusion that the society itself was not bona fide house building society and accordingly, the order passed by the High Court setting aside the acquisition of the land was upheld by this Court and the SLP was dismissed. Paragraph 3 reads as follows :
‘ 3. Lands on basis of the notifications issued under Sections 4(1) and 6(1) of the Land Acquisition Act, had been acquired for the petitioner-House Building Society, treating the said acquisition to be for a public purpose. No order of the State Government as required by Section 3(f)(vi) granting prior approval for acquisition of the lands in question for the housing scheme of the petitioner-society has been produced. The petitioner-Society had also entered into an agreement with the contractor more or less on the same terms and conditions as was in the case of HMT House Building Cooperative Society, assuring that the lands in question shall be acquired on basis of the notification issued by the State Government under Sections 4(1) and 6(1) of the Act. The High Court in its impugned judgment has given details of the allegations made against the petitioner-Society regarding collection of huge amounts from different applicants for site who were not even members of the Society and how the Society had entered into an agreement with agents, who with their influence have got the lands acquired. The High Court has also referred to an advertisement issued by the petitioner-Society inviting persons who want to have mansions in the city of Bangalore. It also gave the name and address of a representative at Dubai. On basis of the aforesaid materials, the High Court has come to the conclusion that the society itself was not a bona fide House Building Society. The High Court has also recorded a finding that the notifications under Sections 4(1) and 6(1) of the Act had been issued at the instance of the agents appointed by the petitioner-Society, to whom huge amounts had been paid for influencing the Government to issue the aforesaid notifications. Mr. Ramaswamy, appearing for the petitioner-Society purported to distinguish this case on facts from the case of HMT House Building Cooperative Society. But according to us, the facts of the present case are similar to the case of HMT House Building Cooperative Society and there is no scope to interfere with the order of the High Court, quashing the notifications under Sections 4(1) and 6(1). Accordingly, the special leave petitions filed on behalf of the petitioner-Society are dismissed. No costs.’
8. Learned counsel for the respondents has also invited our attention that same notification was set aside by the High Court and the said order of the High Court was also upheld by this Court by dismissing the SLP (c) No.6196 of 1998 on 7.4.1998 and SLP (c) ..CC 495-a498 of 1999 on 14.7.1999 concerning the very same appellant society. In this background, when the acquisition has been found to be totally mala fide and not for bona fide purpose, the ground of delay and acquiescence in the present case has no substance. Learned counsel for the appellant tried to persuade us that as the amount in question has been accepted by the respondents, it is not open for them now to wriggle out from that agreement. It may be that the appellant might have tried to settle out the acquisition but when the whole acquisition emanates from the aforesaid tainted notification any settlement on the basis of that notification cannot be validated. The fact remains that when the basic notification under which the present land is sought to be acquired stood vitiated then whatever money that the appellant has paid, is at its own risk. Once the notification goes no benefit could be derived by the appellant. We are satisfied that issue of notification was mala fide and it was not for public purpose, as has been observed by this Court, nothing turns on the question of delay and acquiescence. Learned Counsel for respondents raised other pleas like decree for partition was granted among brothers and they were not made parties, we are not going into those questions when we are satisfied that when acquisition stand vitiated on account of mala fide, nothing remains further.
1. Challenge in these appeals is to the judgment rendered in each case by learned Single Judge of the Andhra Pradesh High Court. Respondent no.1 in each case was working as employee of respondent no.2. Each of them filed a claim petition under Section 22 of the Workmen’s Compensation Act, 1923 (in short the ‘Act’) claiming compensation for alleged personal injuries sustained in course of employment. In each case the claimant claimed to be either a labour or cleaner or driver of the vehicle which was involved in the accident. While respondent no.1 in Civil Appeal No.5625 of 2006 claimed to be driver of the vehicle No.APJ-1907, the respondent no.1 in Civil Appeal No.5623 of 2006 claimed to be the cleaner of the vehicle. Respondent no.1 in Civil Appeal No. 5624 claimed to be employed in a different vehicle. The claim petitions were adjudicated by the Commissioner for Workmens’ Compensation and Assistant Commissioner of Labour, Nizamabad (hereinafter referred to as the ‘Commissioner’).
2. In order to prove the nature of injuries sustained and the alleged loss of earning capacity, a doctor was examined as witness. The doctor who was examined, indicated the percentage of permanent and temporary disablement, functional disability and loss of earning capacity as follows:
Civil Appeal No. 5623 of 2006
Permanent/partial disability : 65%
Functional disability : 65%
Loss of earning capacity : 80%
Civil Appeal No. 5624 of 2006
Permanent/partial disability : 65%
Functional disability : 65%
Loss of earning capacity : 65%
Civil Appeal No. 5625 of 2006
Permanent/partial disability : 65%
Functional disability : 70%
Loss of earning capacity : 80%
3. The appellant-insurer of offending vehicle did not question correctness of the award made by the Commissioner. The claimant in each case preferred an appeal under Section 30 of the Act. By the impugned judgment in each case the High Court held that there was 100% loss of earning capacity and, therefore, awarded compensation. It also directed grant of interest @ 12% p.a. from date of accident till actual realization.
4. In support of the appeals, learned counsel for the appellant submitted that the judgment of the High Court without any discussion on the loss of earning capacity is clearly unsustainable, and in addition question of payment of 12% p.a. interest does not arise. The rate of interest is high.
5. Learned counsel for the respondents supported the impugned order of the High Court in each case.
6. In order to decide the basic issues Sections 4 and 4A of the Act need to be noted. They read as follows:
‘4. Amount of compensation. – (1) Subject to the provisions of this Act, the amount of compensation shall be as follows, namely :
(a) where death
results from the
injury
(b) where
permanent total
disablement
results from injury
Explanation I – For the purposes of clause (a) and clause (b), ‘relevant factor’, in relation to a workman means the factor specified in the second column of schedule IV against the entry in the first column of the schedule specifying the number of years which are the same as the completed years of the age of the workman on his last birthday immediately preceding the date on which the compensation fell due;
Explanation II – Where the monthly wages of a workman exceed one thousand rupees, his monthly wages for the purposes of clause (a) and clause (b) shall be deemed to be one thousand rupees only.
Explanation I – Where more injuries than one are caused by the same accident, the amount of compensation payable under this head shall be aggregated but not so in any case as to exceed the amount which would have been payable if permanent total disablement had resulted from the injuries.
Explanation II – In assessing the loss of earning capacity for the purposes of sub-clause (ii), the qualified medical practitioner shall have due regard to the percentage of loss of earning capacity in relation to different injuries specified in schedule I;
Xx xx xx
4A. Compensation to be paid when due and penalty for default (1) Compensation under Section 4 shall be paid as soon as it falls due.
(2) In cases where the employer does not accept the liability for compensation to the extent claimed, he shall be bound to make provisional payment based on the event of liability which he accepts, and, such payment shall be deposited with the Commissioner or made to the workman, as the case may be without prejudice to the right of the workman to make any further claim.
(3) Where any employer is in default in paying the compensation due under this Act within one month from the date it fell due, the Commissioner may direct that, in addition to the amount of the arrears, simple interest at the rate of six per cent per annum on the amount due together with, if in the opinion of the Commissioner there is no justification for the delay, a further sum not exceeding fifty per cent of such amount, shall be recovered from the employer by way of penalty.’
7. These cases related to injuries which were not specified in Schedule I and as such cases are covered by Section 4(1)(c) (ii) Explanation. In terms of Explanation II the qualified medical practitioner has to assess loss of earning capacity having due regard to percentage of loss of earning capacity in relation to the different injuries in Schedule I. Explanation I also provides that where there are more than one injury, the aggregate has to be taken, so that the amount which would be payable for permanent total disablement is not exceeded.
8. Loss of earning capacity is, therefore, not a substitute for percentage of the physical disablement. It is one of the factors taken into account. In the instant case the doctor who examined the claimant also noted about the functional disablement. In other words, the doctor had taken note of the relevant factors relating to loss of earning capacity. Without indicating any reason or basis the High Court held that there was 100% loss of earning capacity. Since no basis was indicated in support of the conclusion, same cannot be maintained. Therefore, we set aside that part of the High Court’s order and restore that of the Commissioner, in view of the facts situation. Coming to the question of liability to pay interest, Section 4A(3) deals with that question. The provision has been quoted above.
9. Interest is payable under Section 4A(3) if there is default in paying the compensation due under this Act within one month from the date it fell due. The question of liability under Section 4A was dealt with by this Court in Maghar Singh v. Jashwant Singh1. By Amending Act, 14 of 1995, Section 4A of the Act was amended, inter alia, fixing the minimum rate of interest to be simple interest @ 12%. In the instant case, the accident took place after the amendment and, therefore, the rate of 12% as fixed by the High Court cannot be faulted. But the period as fixed by it is wrong. The starting point is on completion of one month from the date on which it fell due. Obviously it cannot be the date of accident. Since no indication is there as when it becomes due, it has to be taken to be the date of adjudication of the claim. This appears to be so because Section 4A(1) prescribes that compensation under Section 4 shall be paid as soon as it falls due. The compensation becomes due on the basis of adjudication of the claim made. The adjudication under Section 4 in some cases involves the assessment of loss of earning capacity by a qualified medical practitioner. Unless adjudication is done, question of compensation becoming due does not arise. The position becomes clearer on a reading of sub-section (2) of Section 4A. It provides that provisional payment to the extent of admitted liability has to be made when employer does not accept the liability for compensation to the extent claimed. The crucial expression is ‘falls due’. Significantly, legislature has not used the expression ‘from the date of accident’. Unless there is an adjudication, the question of an amount falling due does not arise.
10. The appeals are allowed to the extent indicated, without any order as to costs.
JT 2007 (3) SC 181
The Vyalikaval House Building Co-op. Society by its Secretary v. V.Chandrappa and Ors
Civil Appeal No. 2086-2087 of 2004
(From Final Judgments and Orders dated 17.01.2000 and 22.03.2002 of High Court of Karnataka at Bangalore in Writ Appeal No.2294/1999 and R.P. No.156/2000 in Writ Appeal No.2294/1999 respectively)
G.P. MATHUR and A.K. MATHUR, JJ.
Dt.02.02.2007
Appearances
Mr. S.N. Bhat and Mr. Bhagabati Prasad Padhy, Advocates for the Appellant.
Mr. V.A. Mohta, Senior Advocate, Mr. S.K. Kulkarni, Mr.Neelakant Naiyan, Mr. Vijay Kumar, Mr. Sanjay R. Hegde, Mr.Amit K. Mishra and Mr. Shashidhar, Advocates with him for the Respondents.
LAND ACQUISITION
Land Acquisition Act, 1894
Sections 4, 5A and 6 – Acquisition of land – Challenge to acquisition proceedings – Delay and acquiescence – Effect – Acquisition of the land belonging to respondents for co-operative house construction – Respondent land owners accepting the compensation – In respect of some other land covered by the same Notification High Court holding the acquisition proceedings to be mala fide and quashing the proceedings since the acquisition was found to have been not for public purpose – Said decision confirmed by the Supreme Court – Thereafter respondents filing a writ challenging the acquisition of their lands – Writ filed after about 14 years- Single Judge dismissing the writ as being hopelessly barred by time – Division Bench however condoning the long delay and allowing the writ – Validity. Held since the acquisition had been found to be totally mala fide and not for bona fide purpose the ground of delay and acquiescence had no substance. High Court therefore correct in condoning the delay and allowing the writ holding the acquisition proceedings to be invalid.
HELD
When the acquisition has been found to be totally mala fide and not for bona fide purpose, the ground of delay and acquiescence in the present case has no substance. Learned counsel for the appellant tried to persuade us that as the amount in question has been accepted by the respondents, it is not open for them now to wriggle out from that agreement. It may be that the appellant might have tried to settle out the acquisition but when the whole acquisition emanates from the aforesaid tainted notification any settlement on the basis of that notification cannot be validated. The fact remains that when the basic notification under which the present land is sought to be acquired stood vitiated then whatever money that the appellant has paid, is at its own risk. Once the notification goes no benefit could be derived by the appellant. We are satisfied that issue of notification was mala fide and it was not for public purpose, as has been observed by this Court, nothing turns on the question of delay and acquiescence. Learned Counsel for respondents raised other pleas like decree for partition was granted among brothers and they were not made parties, we are not going into those questions when we are satisfied that when acquisition stand vitiated on account of mala fide, nothing remains further. (Para 8)
In the light of the discussions made above, the view taken by the Division Bench of the High Court of Karnataka in the impugned judgment is correct and we uphold the same and dismiss both the appeals. (Para 9)
Cases Referred:
1. H.M.T. House Building Co-operative Society v. M. Venkatswamappa and Ors. etc. etc. [(1995) 3 SCC 128] (Para 6)
2. H.M.T. House Building Co-operative Society v. Syed Khader and Ors. [JT 1995 (2) SC 543] (Para 6)
3. Narayana Reddy v. State of Karnataka [ILR 1991 Kar. 2248] (Para 2)
A.K. MATHUR, J.
1. These appeals are directed against the order passed by the Division Bench of the Karnataka High Court at Bangalore in Writ Appeal No.2294 of 1999 dated 17.1.2000 whereby the Division Bench of the High Court has set aside the order dated 11.11.1998 in Writ Petition No.30622 of 1998 passed by learned Single Judge for the reasons mentioned in Writ Appeal No.2188 of 1998 disposed of by the Division Bench of the High Court on 17.1.2000 and the order dated 22.3.2002 passed by the Division Bench in the Review Petition No.156 of 2000 in W.A.No.2294 of 1999.
2. This case has a chequered history, therefore, in order to deal with it, it will be necessary to refer to certain facts. A notification was issued on 22.12.1984 under Section 4 of the Land Acquisition Act, 1894 (hereinafter to be referred to as ‘the Act’) for acquiring 176 acres and 5 guntas of land in Nagavara village of Bangalore North Taluk. Declaration under Section 6 of the Act was issued on 21.2.1986 and the award was passed on the basis of the aforesaid notification on 16.11.1987. It was alleged that the possession of the land was taken on different dates up to the year 1992. It was alleged that possession of 31 acres and 21 guntas of land including an area measuring 1 acre and 25 guntas situated in Survey No.78/4 of Nagavara village was taken on 6.8.1988. Aggrieved against the aforesaid notification and the award private petitioners filed writ petition assailing the validity thereof on variety of grounds. It was alleged that this land measuring 8 acres and 2 guntas was owned jointly by a family comprising 5 brothers, namely; Pattadi Haumanthappa, Pattadi Venkateshappa, Pattadi Nannappa, Pattadi Lakshmaiah and Pattadi Nagappa, all deceased and survived by their legal heirs, who filed the writ petition. The main grievance of these petitioners was that this notification was very adversely commented by the Karnataka High Court in the case of Narayana Reddy v. State of Karnataka1 and the decision of the Division Bench of the Karnataka High Court in Writ Appeal Nos.2336-2343 of 1997 and connected matters which were disposed of on 5.3.1998. In that judgment it was held that the whole acquisition proceedings stand vitiated on account of fraud, the appellant Society was also found to be not bonafide housing society, therefore, on the basis of the same reasoning the present notification was also challenged and it was urged that the impugned notification also suffered from same vice of mala fide, therefore, it should be quashed. It was alleged that the delay in approaching the Court was irrelevant since the validity of the same notification in which other lands were acquired along with the present land has been found to be void.
3. This writ petition was contested by the appellant-society as respondent and it was alleged that it was hopelessly barred by time being delayed by 14 years and it was also submitted that the writ petitioners had participated in the inquiry under section 5A of the Act and have also received substantial amount from the appellant-society pursuant to the agreement executed in their favour. Learned Single Judge dismissed the writ petition on the ground of being hopelessly barred by time and the writ petitioners participated in the proceedings therefore they have acquiesced in the matter. Aggrieved against this order passed by learned Single Judge, a writ appeal was filed by the respondents which came to be allowed by the Division Bench for the reasons mentioned in another writ appeal decided by the same Division Bench headed by the Chief Justice of the High Court on 17.1.2000. In that writ appeal the Division Bench held that the entire acquisition on behalf of the appellant-society was actuated with fraud as held in Narayana Reddy v. State of Karnataka (supra) In that case it was held as follows :
‘ As seen from the findings of G.V.K.Rao Inquiry Report, in respect of five respondent societies and the report of the Joint Registrar in respect of Vyalikaval House Building Co-operative Society, these Societies had indulged in enrolling large number of members illegally inclusive of ineligible members and had also indulged in enrolling large number of bogus members. The only inference that is possible from this is that the office bearers of the societies had entered into unholy alliance with the respective agents for the purpose of making money, as submitted for the petitioners otherwise, there is no reason as to why such an Agreement should have been brought about by the office bearers of the Society and the agents. Unless these persons had the intention of making huge profits as alleged by the petitioners, they would not have indulged in enrolment of ineligible and bogus members. The circumstance that without considering all these relevant materials the Government had accorded its approval, is sufficient to hold that the agents had prevailed upon the Government to take a decision to acquire the lands without going into all those relevant facts. The irresistible inference flowing from the facts and circumstances of these cases is, whereas the poser conferred under the Land Acquisition Act is for acquiring lands for carrying out housing scheme by a housing society, in each of the cases the acquisition of lands is not for a bona fide housing scheme but is substantially for the purpose of enabling the concerned office bearers of respondent-societies and their agents to indulge in sale of sites in the guise of allotment of sites to the Members/ Associate members of the society to make money as alleged by the petitioners and therefore it is a clear case of colourable exercise of power. Thus the decision of the Government to acquire the lands suffers from legal mala fides and therefore the impugned Notifications are liable to be struck down.’
4. In view of aforesaid observation, their Lordships of Division Bench held that since the acquisition was colourable exercise of the power, therefore, delay cannot be a good ground to dismiss the writ petition. The said judgment of the Division Bench of the High Court of Karnataka was affirmed by this Court in Special Leave Petition Nos.(c)..CC 525-532 of 1999 and Special Leave Petition Nos.(c) ..CC 504-522 of 1999 decided on 14.7.1999 and it was held that the appellant-society is a bogus house building society and accordingly, the order passed by the learned Single Judge was set aside by Division Bench. Against the order of the Division Bench passed in Writ Appeal No.2294 of 1999 a review petition was filed which was dismissed on 22.3.2002. Hence both these appeals.
5. Learned counsel for the appellant urged before us that the view taken by the Division Bench of the High Court is not correct as the Division Bench should not have condoned the inordinate delay of 14 years and secondly, learned counsel further submitted that the respondents herein being the beneficiary had entered into an agreement of sale and had accepted the whole amount not to file objections under Section 5A of the Act for acquiring the aforesaid land. Learned counsel for the appellant has emphasized that the Division Bench has gone wrong in setting aside the order of the learned Single Judge as the learned Single Judge has discussed the factual controversy in greater detail.
6. As against this, learned counsel for the respondents submitted that there was not one judgment but there are number of judgments in which such acquisition of land has been set aside. Learned counsel for the respondents invited our attention to two decisions of this Court in the case of H.M.T. House Building Co-operative Society v. Syed Khader and Ors.1 and H.M.T. House Building Co-operative Society v. M. Venkatswamappa and Ors. etc. etc.2 in which similar societies filed Special Leave Petitions and this Court affirmed the order of the Karnataka High Court and held that the whole exercise of acquiring the land by various societies including the present appellant-society was actuated with mala fide and quashed all acquisitions. In this connection, a reference may be made to H.M.T. House Building Co-operative Soceity’s case (supra) wherein the similar question was raised by the Co-operative Society like the appellant herein and in that context their Lordships framed the question in paragraph 18 of the judgment which heads as follows :
’18. Now the question which is to be answered is as to whether in view of the definition of ‘public purpose’ introduced by the aforesaid Amending Act 68 of 1984 in Section 3(f)(vi), is it open to the appropriate Government to acquire land for cooperative society for housing scheme without making proper enquiry about the members of the society and without putting such housing cooperative society to term in respect of nature of construction, the area to be allotted to the members and restrictions on transfer thereof ?’
This question was answered by their Lordships in paragraphs 21 and 22 which reads thus:
‘…That is why the framers of the Act have required the appropriate Government to grant prior approval of any housing scheme presented by any cooperative society before the lands are acquired treating such requirement and acquisition for public purpose. It is incumbent on the part of the appropriate Government while granting approval to examine different aspects of the matter so that it may serve the public interest and not the interest of few who can as well afford to acquire such lands by negotiation in open market. According to us, the State Government has not granted the prior approval in terms of Section 3(f)(vi) of the Act to the housing scheme in question. The power under Section 4(1) and 6(1) of the Act has been exercised for extraneous consideration and at the instance of the persons who had no role in the decision-making process whether the acquisition of the lands in question shall be for a public purpose. This itself is enough to vitiate the whole acquisition proceeding and render the same invalid.’
22. In the present case there has been contravention of Section 3(f)(vi) of the Act inasmuch as there was no prior approval of the State Government as required by the said section before steps for acquisition of the lands were taken. The report of Shri G.V.K.Rao points out as to how the appellant-Society admitted large number of persons as members who cannot be held to be genuine members, the sole object being to transfer the lands acquired for ‘public purpose’, to outsiders as part of commercial venture, undertaken by the office-bearer of the appellant-Society. We are in agreement wit the finding of the High Court that the statutory notifications issued under Sections 4(1) and 6(1) of the Act have been issued due to the role played by M/s. S.R. Constructions, Respondent No.11. On the materials on record, the High Court was justified in coming to the conclusion that the proceedings for acquisition of the lands had not been initiated because the State Government was satisfied about the existence of the public purpose but at the instance of agent who had collected more than a crore of rupees for getting the lands acquired by the State Government.’
7. Similarly, in H.M.T. House Building Cooperative Society (supra) in which the present appellant was one of the societies, which challenged the order of the Division Bench of the High Court of Karnataka, their Lordships dismissed the Special Leave Petition following the judgment in H.M.T. House Building Cooperative Society (supra). In paragraph 3 of the judgment while dealing with the facts of this society their Lordships observed that this society had advertised inviting persons who want to have mansions in the city of Bangalore and had also given the names and addresses of the representative at Dubai. It was held that on the basis of the aforesaid material the High Court has rightly come to the conclusion that the society itself was not bona fide house building society and accordingly, the order passed by the High Court setting aside the acquisition of the land was upheld by this Court and the SLP was dismissed. Paragraph 3 reads as follows :
‘ 3. Lands on basis of the notifications issued under Sections 4(1) and 6(1) of the Land Acquisition Act, had been acquired for the petitioner-House Building Society, treating the said acquisition to be for a public purpose. No order of the State Government as required by Section 3(f)(vi) granting prior approval for acquisition of the lands in question for the housing scheme of the petitioner-society has been produced. The petitioner-Society had also entered into an agreement with the contractor more or less on the same terms and conditions as was in the case of HMT House Building Cooperative Society, assuring that the lands in question shall be acquired on basis of the notification issued by the State Government under Sections 4(1) and 6(1) of the Act. The High Court in its impugned judgment has given details of the allegations made against the petitioner-Society regarding collection of huge amounts from different applicants for site who were not even members of the Society and how the Society had entered into an agreement with agents, who with their influence have got the lands acquired. The High Court has also referred to an advertisement issued by the petitioner-Society inviting persons who want to have mansions in the city of Bangalore. It also gave the name and address of a representative at Dubai. On basis of the aforesaid materials, the High Court has come to the conclusion that the society itself was not a bona fide House Building Society. The High Court has also recorded a finding that the notifications under Sections 4(1) and 6(1) of the Act had been issued at the instance of the agents appointed by the petitioner-Society, to whom huge amounts had been paid for influencing the Government to issue the aforesaid notifications. Mr. Ramaswamy, appearing for the petitioner-Society purported to distinguish this case on facts from the case of HMT House Building Cooperative Society. But according to us, the facts of the present case are similar to the case of HMT House Building Cooperative Society and there is no scope to interfere with the order of the High Court, quashing the notifications under Sections 4(1) and 6(1). Accordingly, the special leave petitions filed on behalf of the petitioner-Society are dismissed. No costs.’
8. Learned counsel for the respondents has also invited our attention that same notification was set aside by the High Court and the said order of the High Court was also upheld by this Court by dismissing the SLP (c) No.6196 of 1998 on 7.4.1998 and SLP (c) ..CC 495-a498 of 1999 on 14.7.1999 concerning the very same appellant society. In this background, when the acquisition has been found to be totally mala fide and not for bona fide purpose, the ground of delay and acquiescence in the present case has no substance. Learned counsel for the appellant tried to persuade us that as the amount in question has been accepted by the respondents, it is not open for them now to wriggle out from that agreement. It may be that the appellant might have tried to settle out the acquisition but when the whole acquisition emanates from the aforesaid tainted notification any settlement on the basis of that notification cannot be validated. The fact remains that when the basic notification under which the present land is sought to be acquired stood vitiated then whatever money that the appellant has paid, is at its own risk. Once the notification goes no benefit could be derived by the appellant. We are satisfied that issue of notification was mala fide and it was not for public purpose, as has been observed by this Court, nothing turns on the question of delay and acquiescence. Learned Counsel for respondents raised other pleas like decree for partition was granted among brothers and they were not made parties, we are not going into those questions when we are satisfied that when acquisition stand vitiated on account of mala fide, nothing remains further.
9. In the light of the discussions made above, the view taken by the Division Bench of the High Court of Karnataka in the impugned judgment is correct and we uphold the same and dismiss both the appeals. No order as to costs.
