Allahabad High Court
Bhanu Pratap Singh vs Union Of India & Others on 2 January, 2019
Equivalent citations: AIR 2019 (NOC) 679 (ALU), AIRONLINE 2019 ALL 1572 2019 (3) ALJ 241, 2019 (3) ALJ 241, AIRONLINE 2019 ALL 1572
Bench: Vikram Nath, Saurabh Lavania
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Case :- LAND ACQUISITION No. - 48 of 2000 Petitioner :- Bhanu Pratap Singh Respondent :- Union Of India & Others Counsel for Petitioner :- S.K.Mehrotra Counsel for Respondent :-B.B.Saxena,Deepak Seth,Ravi Prakash,S.B.Pandey Hon'ble Vikram Nath,J.
Hon'ble Saurabh Lavania,J.
(Dictated by Saurabh Lavania,J) 1- Heard Sri Mehndi Abbas Rizvi Advocate, holding brief of Sri S.K.Mehrotra, learned Counsel for the petitioner and Sri S.B.Pandey, learned Additional Solicitor General of India, learned Counsel for the respondents-Union of India.
2- By means of the present writ petition the petitioner has challenged the order dated 20.5.2000 ( Annexure No.-1 to the Writ Petition) passed by the Claims Commissioner Ayodhya, District Faizabad under the Acquisition of Certain Area at Ayodhya Act, 1993 (hereinafter referred as "Act No.33").
3- By the order under challenge dated 20.5.2000 the Claims Commissioner Ayodhya- opposite party no.2 awarded the amount of compensation to the tune of Rs. 3,13,399.00/- and denied the claim with respect to 3 idols.
4- The prayers in the writ petition are to the effect that the opposite party no.2 be directed to re-determine the compensation/claim of the property of the petitioner acquired under the Act No.33 including the idols.
5- Admitted fact as appears from the record, are to the effect that the petitioner and the private opposite parties in the instant petition were the co-owner in possession at the time of acquisition of property in issue i.e. House No.-10/12/16 (old no.-642/501) situated at Revenue Plot No.-162, Mohalla- Ramcoat Ayodhya District Faizabad.
6- The submission of learned Counsel for the petitioner is based on Act No.33 and Regulations of Procedure made thereunder by the Claims Commissioner-opposite party no.2.
7- The relevant provisions i.e. Section 3, Section 4(1) and Section 8(1) of the Act No.33 of 1993 are reproduced as under:-
"Section 3 Acquisition of rights in respect of certain area.- On and from the commencement of this Act, the right, title and interest in relation to the area shall, by virtue of this Act, stand transferred to, and vest in, the Central Government.
Section 4(1).General effect of vesting.-(1) The area shall be deemed to include all assets, rights, leaseholds, powers, authority and privileges and all property, movable and immovable, including lands, buildings, structures, shops of whatever nature or other properties and all other rights and interests in, or arising out of, such properties as were immediately before the commencement of this Act in the ownership, possession, power or control of any person or the State Government of Uttar Pradesh, as the case may be, and all registers, maps, plans, drawings and other documents of whatever relating thereto.
Section 8(1). Payment of amount.-(1) The owner of any land, building, structure or other property comprised in the area shall be given by the Central Government, for the transfer to and vesting in that Government under Section 3 of that land, building, structure or other property, in cash an amount equivalent to the market value of the land, building, structure or other property."
8- In the Act No.33 of 1993 the Claim Commissioner is empowered/authorized to regulate its own procedure for receiving and deciding the claims, as would appear from Sub-Section 3 of Section Section 8. Section 8 of the Act No.33 deals with payment of amount.
9- It appears that in exercise of power provided under the Act, the opposite party no.2 framed the Regulation of Procedure, annexed as Annexure No.-10 to the writ petition. The regulation-9, quoted below is relevant in the instant case, which reads as follows:-
"Regulation 9:-In order to determine the market value of the acquired property under Section 8 of the Act, the Claims Commissioner may,
(a) In order to assess the market value of the land,
(i) fix on basis of exempler among sale deeds two years prior from the date of coming into force of this Act, or
(ii) if exempler is not available on the basis of rates of land fixed for the purpose of stamp duty as circulated by th Collector/ District Stamp Officer, Faizabad on the date of the commencement of the Act.
(b) take assistance of Central Government agencies and if need be State Forest Department for the valuation of trees or plantation
(c) seek the assistance of Central Public Works Department or other Central Agencies and if need be State Public Works Department in order to evaluate and assess the buildings and constructions
(d) may seek the assistance from the concerned technical department or experts, for the valuation of other materials (movable or immovable properties) 10- From the above quoted provisions of the Act, it is evident that:-
(i) On acquisition under the Act the Right, Title and Interest in relation to area shall stand transfer and vest in the Central Government.
(ii) The area referred to in Section 3 include all assets, rights, lease holds, powers, authority and privilege and all property movable and immovable including lands, buildings, structures, shops and whatever nature or other properties and all other rights and interest in, or arising out of such properties, and
(iii)- Under the Act the amount of compensation has to be fixed on the basis of market value of the land, building structure or other property.
11- It is further evident from the aforesaid Sections that the same broadly relate to two type of property:-(i) Movable property (ii) Immovable Property.
12- From the expression used in the above quoted provisions of the Act No.33 of 1993 i.e. "Immovable" "Movable "Other Property" and the procedure for calculating the compensation it is the market value of the acquired property which has to be considered, it is clear that compensation has to be provided under the Act No.33 of 1993 with respect to all the properties i.e. "immovable", "movable" and "other property", as mentioned in Section 4(1) and Section 8(1) of the Act and the compensation should be based on market value of the properties acquired.
13- The mode, manner and procedure for determining the market value of the acquired property is provided under the Regulation-9 of the Regulations of Procedure framed by opposite party no.-2.
14- It is settled law that where a statute requires a particular act to be done in a particular manner, the act has to be done in that manner alone. Every word of the statute has to be given its due meaning. An opt quoted adage "one who holds the procedural sword must perish with the sword". A century ago, in Taylor V. Taylor, (1875)} 1 Ch D 426 Jassell M.R. adopted the rule that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all and that other methods of performance are necessarily forbidden. This rule has stood the test of time It was applied by the Privy Council, in Nazir Ahmed V. Emperor, 63 Ind App 372 = (AIR 1936 PC 253 (2)} and later the Hon'ble Apex Court in several cases viz. Shiv Bahadur Singh v. State of V.P., (1954) SCR 1098- (AIR 1954 SC 322= 1954 Cri LJ 910): Deep Chand v. State of Rajasthan. (1962) SCR 662= (AIR 1961 sc 1527= 1961 (2) Cri LJ 705) approved the same principle of law. A Constitution Bench of the Hon'ble Apex Court in Commissioner of Income Tax, Mumbai v. Anjum M. H. Ghaswala and others, AIR 2001 SC 3868 reaffirmed the general rule that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the same itself.
15- In the instant case Regulation-9(a) and 9(d) are relevant.
16- As per Regulation 9(a) the market value of the land is liable to be considered on the basis of exempler i.e. on the basis of sale deeds of two years prior from the date of coming into force of the Act No.33 of 1993 and in absence of exempler the market value has to be assessed on the basis of rates/circle rates of land fixed for the purpose of stamp duty/ circle rate by the Collector/ District Stamp Officer Faizabad on the date of commencement of the Act No.33. Admittedly, the date of enforcement of Act is 03.04.1993.
17- On the basis of aforesaid provisions of Act No.33 of 1993 and Regulations of Procedure the submission of learned Counsel for the petitioner on the issue of amount of compensation awarded by opposite party no.2 is that while deciding the claim the opposite party no.2 only considered the report of the Central Public Works Department and on the basis of said report made calculations and awarded the amount to the tune of Rs. 3,13,399.00/- although as per the provisions of Regulations of Procedure read with provisions of the Act No.33 of 1993 the opposite party no.2 was under obligation to either consider the exempler or circle rate, as applicable on 03.04.1993 and in not doing so erred in law. The learned Counsel for the petitioner placed the circle rate of area in issue before this Court, which is on record as Annexure No. SA-1 to the supplementary affidavit dated 16.8.2017 filed in the registry on 30.8.2018 and on the basis of the same he submits that the compensation awarded by the opposite party no.-2 is meager and contrary to the spirit of Act No.33 of 1993 and the method adopted for awarding the compensation by the opposite party no.-2 was/is contrary to provisions of the Act No.33 of 1993 and Regulations of Procedure made thereunder. The mode, manner and procedure has not been followed by the opposite party no. 2 while determining the compensation.
18- Further submission of learned Counsel for the petitioner is that the opposite party no.2 while considering the claim has not followed the procedure framed by himself in exercise of Power vested under Section 8(3) of the Act No.33 of 1993 and he has also ignored the above quoted provisions of the Act.
19- On the issue of not providing the compensation with respect to 3 idols the submission of learned Counsel for the petitioner is that admittedly three idols were acquired and under the provisions of the Act the petitioner is entitled to the compensation of the same and for the purposes of calculating the compensation the opposite party no.2 ought to have sought the assistance from the technical experts as provided under Regulation-9 and in not doing so, with respect to 3 idols of the claimants, the opposite party no.2 committed illegality and acted inviolation of Section-3, Section 4(1), and Section 8(1) of the Act No. 33 of 1993 as well as Regulation of Procedure.
20- Per contra Sri S.B.Pandey, learned Counsel for Union Of India, on the basis of averments made in counter affidavit submits that order impugned dated 20.5.2000 is sustainable as the same is reasoned and based on valuation report dated 24.1.1998 of the Executive Engineer, Public Works Department, Lucknow. Further submission is that opposite party no.2 in detail considered the claim with respect to property acquired and after due calculation the amount,as referred hereinabove,has been awarded towards compensation of the property acquired. With regard to three idols, Sri S.B.Pandey, learned Counsel for Union of India has stated that the same were not required and as such an application was moved before the opposite party no.2 to the effect that the idols be returned back to the claimants and accordingly the opposite party no.2 permitted the claimants to take back the idols in issue and thus the order is just and proper.
21- We have considered the submissions of learned Counsel for the parties and also perused the record of the present writ petition including the impugned order dated 20.5.2000, under challenge.
22- The first issue for consideration is to the effect that whether the Claims Commissioner/ opposite party no.2 has rightly awarded the amount of compensation based on valuation report and the second issue for consideration is whether the claimants including the petitioner are entitled to the compensation with respect to three idols.
23- To answer the first issue involved in the present writ petition reference to Section-3, 4(1), 8(1) of Act No.33 and Regulation 9(a) of Regulations of Procedure is necessary.
24- A conjoint reading of the aforesaid provisions would show that compensation has to be calculated on the basis of market value of the property and for assessing the market value of the land, the sale deeds, as provided under the Regulation 9(a)(i) should be considered by the opposite party no.2 as exempler and in absence of exempler and for assessing market value of the land, the opposite party no.2 was under obligation to take into account the rates/circle rates of the land fixed for the purpose of stamp duty by the Collector/District Stamp Officer, Faizabad on 3.4.1993(the date on which the Act No.33 of 1993 came into force) and in regard to assessing the market value of the other property i.e. building, trees or plantation etc. of such nature the procedure prescribed under Regulation 9(b) and 9(c) has to be followed and only for that purpose the valuation report can be considered.
25- It reveals from the order dated 20.5.2000, under challenge, that while considering the claim of the claimants including the petitioner the opposite party no.2 failed to take note of rates/ circle rates fixed by Collector Faizabad nor considered exempler for the purposes of arriving at the amount of compensation, as prescribed under the procedure for determining the market value, and being so the impugned order on this count is liable to be interfered with by this Court.
26- With respect to issue no.2 involved in the writ petition, this Court on the basis of above quoted provisions including Regulation 9(d)feels that property including three idols in issue vested in the Central Government on acquisition and cannot be returned back by the authority under the Act as no power is vested in the Claims Commissioner under the Act for returning any property including movable property to the person to whom property belongs prior to acquisition. Regulation 9(d) specifically provides for seeking assistance from concerned technical department or experts for the valuation of other materials (movable or immovable properties. Considering the aforesaid aspect and provisions of the Act we hold that the opposite party no.2 ought to have sought assistance for the purpose of valuation of three idols and thereafter ought to have awarded the amount towards compensation of three idols in issue. Thus, on this aspect also the order dated 20.5.2000 is liable to be interfered with by this Court.
27- In a nut shell the opposite party no.2 while deciding the claims/ compensation under the Act No.33 of 1993 has not followed the mode, manner and procedure prescribed under the Act No.33 of 1993, although he was under obligation to act within four conrners of the Statute, and as such the order dated 20.5.2000(Annexure No.1 to the writ petition) is liable to be interfered with by this Court.
28- For the reasons recorded above, we are of the view that the order dated 20.5.2000 is liable to be quashed. Accordingly,the petition is allowed and the order dated 20.5.2000 passed by Claims Commissioner Ayodhya District Faizabad/ opposite party no. 2 is quashed. The matter is remanded back to the Claims Commissioner for determining the compensation a fresh in the light of provisions of the Act No. 33 of 1993 and Regulations of Procedure made thereunder as well as the observations made hereinabove. The Claims Commissioner would take a fresh decision within a period of three months from the date of production of a certified copy of this judgment.
Order Date :- 2.1.2019 Jyoti/-