Delhi High Court
Chajju vs Union Of India on 21 May, 1999
Equivalent citations: 1999IVAD(DELHI)985, 80(1999)DLT129, 1999(50)DRJ398
Author: Madan B. Lokur
Bench: Madan B. Lokur
JUDGMENT Madan B. Lokur, J.
1. By a notification dated 27th January, 1984 issued under Section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as the Act), the Delhi Administration expressed its intention to acquire large tracts of lands covering nine villages in Delhi. The proposed acquisition was for a public purpose, viz. Planned Development of Delhi. The villages were:
1. Matiala
2. Palam
3. Bagrola
4. Amberhai
5. Toganpur
6. Bharthal
7. Shahbad Mohammadpur
8. Loharheri
2. Thereafter, by another notification dated 18th September, 1984 issued under Section 6 of the Act, the Delhi Administration declared that the land notified by it under Section 4 of the Act was required for a public purpose. This declaration included 4798 bighas 174 biswas of land in Village Matiala with which the present appeal is concerned.
3. For determining the amount of compensation to be given to the landowners, the Land Acquisition Collector, by his Award No. 164/86-87 divided the acquired land into three blocks being Block A, B and C. With respect to Block A, which is level land, he awarded compensation at the rate of Rs. 17,800/- per bigha; with respect to Block B, which consisted of land having pits at a depth of 2 to 4 feet, he awarded compensation at the rate of Rs. 15,000/- per bigha; and finally with regard to Block C, which consisted of land having pits at a depth of 5 to 8 feet, he awarded compensation at the rate of Rs. 14,000/- per bigha.
4. Not being satisfied with the quantum of compensation, several land owners filed references under Section 18 of the At before the learned Additional District Judge, Delhi, who took up two main cases, viz. LAC No. 235/87 filed by Chajju, son of Surja, and LAC No. 69/87 filed by Ram Narain, son of Badlu. While disposing of these reference petitions by his decision dated 22nd August, 1989, the learned Additional District Judge awarded compensation at the rate of Rs. 36,400/- per bigha for land situated in Block A; at the rate of Rs. 35,400/- per bigha for land situated in Block B; and at the rate of Rs. 34,400/- per bigha for land situated in Block C.
5. We are given to understand that all other references under Section 18 of the Act were disposed of by the learned Additional District Judge either based on these two decisions or on similar terms.
6. The land owners as well as the Union of India, being dissatisfied with the decision of the learned Additional District Judge, preferred separate regular first appeals under Section 54 of the Act. All the appeals filed by the land-owners as well as by the Union of India were taken up collectively for final disposal. The appeals, other than this one, which are being disposed of by this decision are listed in Annexure "A" hereto. For the sake of convenience, the land owners are hereafter referred to as the appellants and the Union of India/Delhi Administration is hereafter referred to as the respondent.
7. At no stage did any of the parties lead any oral evidence in support of their case. The Union of India based its case on three documents which are as follows:
(a) Award No.14/86-87 pertaining to village Kakrola (Ex.R-1);
(b) Judgment of the learned Additional District Judge in LAC No.151/83 and 50/82-83 pertaining to village Kakrola (Ex.R-2);
and
(c) Judgment of the learned Additional District Judge in LAC No. 250/73 pertaining to village Nawada Majra Hastsal (Ex.R-3).
8. The evidence preferred by the Union of India was discarded by the learned Additional District Judge on the ground that sale deeds pertaining to village Matiala were available on record. Consequently, it was held that the market value of land in village Matiala could more appropriately be determined with reference to these sale deeds rather than be comparing it with the market value of land in nearby villages.
9. On their part, the appellants relied upon several sale transaction, which are as follows:
In LAC No.235/87 (Chajju's Case) Exh. Date Area Amount Vendor (In Rs.) A-1 24.6.1981 1 bigha 44,800 Sheochand & Ors.
12 biswa
A-2 24.6.1981 1 bigha 44,800 Sheochand & Ors.
12 biswa
A-3 July,1981 1 bigha 44,800 Sheochand & Ors.
12 biswa
A-4 8.7.1981 1 bigha 44,800 Sheochand & Ors.
12 biswa
A-5 14.8.1981 1 bigha 44,800 Sheochand & Ors.
12 biswa
A-6 5.8.1981 1 bigha 44,800 Sheochand & Ors.
12 biswa
A-7 28.1.1983 690 sq. 49,000 Chajju
yds.
A-8 28.1.1983 1000 sq. 45,000 Chajju
yds.
A-9 28.1.1983 1000 sq. 45,000 Chajju
yds.
In LAC No. 69/87 (Ram Narain's Case)
A-1 29.3.1981 1 bigha 44,800 Sheochand
12 biswa
A-2 29.3.1981 1 bigha 44,800 Sheochand
12 biswa
A-3 24.6.1981 1 bigha 44,800 Sheochand
12 biswa
A-4 24.6.1981 1 bigha 44,800 Sheochand
12 biswa
A-5 24.6.1981 1 bigha 44,800 Sheochand
12 biswa
A-6 8.7.1981 1 bigha 44,800 Sheochand
12 biswa
A-7 8.7.1981 1 bigha 44,800 Sheochand
12 biswa
A-8 3.4.1981 1000 sq. 40,000 Mir Singh & Anr.
yds.
A-9 28.1.1983 690 sq. 49,000 Chajju
yds.
A-10 28.1.1983 1000 sq. 45,000 Chajju
yds.
A-11 28.1.1983 1000 sq. 45,000 Chajju
yds.
A-12 3.4.1982 1000 sq. 40,000 Mir Singh & Anr.
yds.
A-13 8.7.1981 1 bigha 44,800 Sheochand
12 biswa
A-14 12.5.1983 800 sq. 48,000 Mange Ram
yds.
(Note: We were given to understand that if 1 Bigha 12 biswa of land is sold at Rs. 44,800/-, then the rate translates to Rs.28,000/- per bigha).
10. From the impugned judgment and decree passed by the learned Additional istrict Judge, it is seen that he has made reference to eleven sale deeds; most of them are included in the sale transactions listed hereinabove, but some are not. How these "other" sale deeds came to be referred to is not clear-but this really does not make any material difference. Similarly, the learned Additional District Judge has omitted to take note of some exhibits. Again, this omission is not really material for the decision of this appeal.
11. This appeal was heard on 25th February, 1999, 4th and 11th March, 1999 and 22nd and 23rd April, 1999 when judgment was reserved.
12. The learned Counsel for the Appellant, Shri V.P. Singh, Senior Advocate, made two submissions. In the first place, he contended that this Court has determined regard to village Palam that the market value of land in that village was Rs.56.470/- per bigha on which the appellant therein was allowed escalation at the rate of 12% p.a. for two years, as a result of which the price of the land on the date of notification i.e. in January 1984 worked out to Rs.70,836/- which, after making 1/3rd deductions for development cost works out to Rs.47,224/- per bigha. Reference in this regard was made by learned Counsel to the market value fixed by this Court in the case of Rameshwar Solanki Vs. UOI, (Village Palam),Balak Ram & Ors. Vs. UOI RFA No. 724/95 decided on 2.11.1989 (vilage Shahabad Mohammadpur) and Sita Ram Vs. UOI, RFA No.619/1989 decided on 26.3.1999 (village Ambarhai). It was submitted by learned Counsel that land in Village Matiala being contiguous and similar in character and quality to land in these villages and having been acquired by the same set of notifications, the market value of the land is the same and consequently compensation at the rate of Rs.56,470/- per bigha besides increase of 12% p.a. be awarded.
13. The second submission made by learned Counsel for the appellant is that 1/3rd deduction which has been made in the market value of land in the above decisions is not sustainable in law and that compensation should only be at the rate of Rs. 56,470/-+12% p.a. increase per bigha. In this context, learned Counsel referred to the decision in Solanki's case and submitted that in para 37 of the report, the learned Counsel for the appellant therein had conceded that 1/3rd deduction be made. Such a deduction, according to the learned Counsel for the appellant, is not binding on him and Solanki's case, therefore, is no authority for the proposition that deduction ought to be made in the market value of the land which is the subject matter of this appeal. With regard to the other two decisions, namely, Balak Ram's case and Sita Ram's case, learned Counsel submitted that the contention raised by him in this appeal was not urged in those cases and, thereore, those decisions also do not bind him.
14. Learned Counsel for the appellant further submitted, by relying upon two Division Bench decisions of this Court being Ram Kumar Vs. UOI & Ors., 1997(66) DLT 529 pertaining to Village Narela, and Ram Phool Vs. UOI & Ors., 1998 (5) AD (DELHI) 433 = 1998 (76) DLT 498 pertaining to Village Pooth Kalan, that deductions of any kind in the market value of land are not authorised either by Article 300-A of the Constitution or by any provision of the Act. As such, no deduction should be made for any purpose, including so-called development cost, in the present appeal.
15. On the other hand, learned Counsel for the Respondent Ms.Geeta Mittal, submitted that the mere fact that nine villages were acquired by the same set of notifications should not ipso facto result in a finding that land in each of these villages has the same market value. She also submitted that the evidence on record in this appeal would have to be independently evalu-
ated and examined for arriving at the market value of land in village Matiala.
16. As regards the contention that deductions are per se unwarranted, it was submitted by learned Counsel for the respondent that the principles laid down by the Supreme Court in several decisions are quite clear and are to the effect that deductions are permissible, depending on the facts of the case. It was submitted that if the market value of developed land is sought to be compared with the market value of agricultural land (or vice versa, then naturally the expenses incurred (or to be incurred) on development will have to be taken into consideration to arrive at a justifiable comparison. On the other hand, if agricultural and is to be compared with agricultural land or if developed land is to be compared with developed land, then there is no reason to make any deduction since one type of land is being compared with a similar type of land. It is submitted that in the present appeal the evidence on record suggests that the sale transactions pertain to agricultural land sold for agricultural purposes.
17. It was then submitted by learned Counsel for the respondent that the evidence on record in this appeal suggests that the maximum consideration for agricultural land sold for agricultural purposes in Village Matiala in 1981 was at the rate of Rs. 28,000/- per bigha. After escalation in the prices at the rate of 12% per annum as provided by Section 23(1A) of the Act, the market value of the land on or about the date of the notification under Section 4 of the Act works out to Rs.36,400/- per bigha, which is the amount awarded by the learned Additional District Judge. As against this, three Division Benches of this Court have awarded a much higher compensation in respect of land in the contiguous villages of Palam, Shahbad Mohammadpur and Amberhai.
18. The question that would, therefore, arise for consideration is whether despite the evidence on record, should the decisions of this Court be made applicable to the Appellant, thereby awarding him compensation at the same rate as in villages Palam, Shahbad Mohammadpur and Ambarhai.
19. Learned Counsel for the respondent sought to persuade us to take the view that the market value of land arrived at on the basis of well settled principles laid down by the Supreme Court from time to time is admittedly lower in Village Matiala than in the other villages. She also submitted that the variation in the price of land within Village Matiala, as evi-denced by the various sale deeds, goes to show that there was no consistent or quantum increase in the price of land which would warrant an award of compensation equivalent to the amount awarded in respect of other villages. She also drew our attention to the deposition of a witness in Solanki's case to the effect that the land in Village Palam was superior in quality to the land in village matiala. It was, therefore, submitted that the market value of land in Village Matiala cannot be equated with the market value of land in Village Palam.
20. The question whether land comprising nine villages and acquired by the same set of notifications has the same market value, for the purposes of awarding compensation, came up for discussion before a Division Bench of this Court in Balak Ram's case. It was held by the Division Bench, after considering a large number of cases, that this Court has "been consistently taking a view that similar lands in adjoining villages having same or nearabout dates of notification under Section 4 of the Act can be assessed at the same rate for purposes of fixing market value". It was further held that "when the land of the entire village has been acquired for planned development of Delhi, the compensation should be awarded at the same rate, subject, however, to the nature of the land being similar. The acquisition of large tracts of land in this case which really takes into it sweep the lands forming part of nine villages, shows that the lands were required for some developmental projects in a cohesive manner. In such a situation it will be unfair to discriminate between the land owners by paying more to some and less to others. We are of the view that appellant in this appeal and the other appellants in the connected batch of appeals are entitled to be awarded compensation at the same rate as was awarded to the land owners with respect to Village Palam in Solanki's case".
21. Similarly, in Sita Ram's case, a Division Bench of this Court of which one of us (Usha Mehra,J.) was a Member, has held that since there is " no basic difference in the matter of potentiality of land and situation of Village Amberhai and Shahbad Modh. Pur we see no reason why the same rate as determined by this Court in the case of Balak Ram & Ors. Vs. Union of India (supra) be not made applicable to the facts of this case. Even otherwise the Supreme Court as well as this Court have repeatedly held the view that when there is a large scale acquisition of land in various villages which are adjacent to each other and having same potentiality then the pattern of evaluating the compensation should be consistently followed by the Court. The State cannot categorise land for fixing different rates of land when its land has been acquired for the same purpose. , Brig. Sahib Singh Kalha Vs. Amristar Improvement Trust & Ors., and , Inderjit Kaur Vs. Rajinder Singh). The State cannot refuse to pay in respect of lands acquired under the same notification, compensation awarded to the land owners whose similarly situated lands had been acquired under the same notification for the same purpose. This is so held by the Apex Court in the case of Nand Ram & Ors.Vs. The State of Haryana, reported in JT 1988 (4) SC 260.
22. We have given our anxious consideration to the submissions made on behalf of the parties. We are, however, unable to find any cogent reason to deviate from the decision taken by the earlier Benches of this Court to the effect that the market value of the land in all the nine villages which have been acquired by the same set of notifications should be fixed at the same rate. Rather, we are inclined to reaffirm the views earlier expressed by this Court.
23. In this regard, two recent decisions of the Supreme Court are worth noticing. They are Kanwar Singh & Others Vs. Union of India, and Chander Bhan and Ors. Vs. Union of India, . In Kanwar Singh's case the Supreme Court held as follows:
"The contention of the appellants' Counsel that the appellants deserved to be awarded the same rate of compensation as it was awarded to the claimants of villages Masoodpur and Mahipalpur, in he present fact and circumstances of the case, is not tenable. If we go by the compensation awarded to the claimants of the adjoining village, it would not lead to the correct assessment of market value of the land acquired in Village Rangpuri. For Example village `A'adjoins village `B', village `B' adjoins village `C', village `C' adjoins village `D', soon and so forth and in that process, the entire Delhi would be covered. Generally there would be different situation and potentiality of the land situated in two different villages unless it is proved that the situation and potentiality of the land in two different villages are the same. The High Court in the present case has found that the situation and potentiality of the land in village Malikpur Kohi are different than that of village Masoodpur. This finding of the igh Court is based on correct appreciation of the evidence on record and does not call for interference."
24. In Chander Bhan's case, the Supreme Court held as follows:
"On the other hand, the High Court while assessing the market value of the appellants' land relied upon a Division Bench deci sion of the Delhi High Court in the case of Jai Lal Vs. Union of India which related to determination of compensation in respect of land in Village Nangal Dewat with reference to the notification dated 3.2.1971. The High Court in the said case awarded uniform compensation @ Rs. 13,000/- per bigha. In the present case, it was found by the High Court that the acquired land in Village Nangal Dewat and the appellants land are similarly situ ated, therefore, the rates of compensation should be uniform. Accordingly, the High Court assessed the market value of the land at Rs. 13,000/- per bigha. Thus according to us the judgment of the High Court under appeal is neither perverse nor illegal and does not call for any interference, since it is based on correct appreciation of the evidence on record and proper application of aw to the established facts.
25. What emerges from these two decisions is that generally the situation, otentiality, character and quality of land in two different villages is ot the same; and the contrary will have to be proved if the same market value is to be applied to the land in both the villages. If, however, there is evidence on record to suggest the there is substantial similarity in the land in two different villages, then the rate of compensation can and should be uniform.
26. Consequently, what has to be determined is whether the land in Village Matiala is similar in situation, potentiality, character and quality to the land in village Palam, Shahbad Mohammadpur and Ambarhai.
27. We may immediately note that it is obviously not possible to have exact similarity of the land in all these villages. In fact, even within each village these are bound to be different qualities of land.
28. However, despite this, the Division Bench in Balak Ram's case held that all the nine villages are adjoining each other and the nature and quality of the land in all these village is by and large similar and ac-
cordingly proceeded to award compensation at the same rate.
29. In Balak Ram's case, the Division Bench of this Court considered various factors while concluding that the market value of the land in all the nine villages should be the same. Among the factors that were taken into consideration were the fact that the land in the nine villages were acquired by the same set of notifications under Sections 4 and 6 of the Act which were of the same date, namely, 27th January, 1984 and 18th September 1984 respectively. The purpose of acquisition was also the same, namely, the Planned Development of Delhi. It was held by the Division Bench that all the villages are adjoining each other as per the area map. The Division Bench also took into consideration the fact that the various Land Acquisition Collectors who gave their respective Awards with respect to the nine villages by and large awarded the same rate of compensation, that is, Rs.13,000/- per bigha. Even the learned Additional District Judges who had heard the reference petitions under Section 18 of the Act also followed, almost without exception, a uniform pattern in all the nine villages and arrived at a market value of Rs. 36,400/- per bigha. Taking all these factors into consideration, this Court held that there ought to be a parity in the grant of compensation and accordingly proceeded to award the same rate of compensation as in village Palam. All these factors and grounds were also taken into consideration by a subsequent Division Bench while deciding Sita Ram's case pertaining to village Ambarhai.
30. Insofar as a specific comparison of the Character and quality of land in village Palam and Village Matiala is concerned, reference may be made to the objection raised by learned Counsel for the respondent who submitted that in Solanki's case one of the witnesses had deposed that the land in Village Palam was superior to the land in Village Matiala (para 15 of the report). Accordingly,it was contended that since the land in Village matiala was of inferior quality it could not possibly fetch the same value as the land in Village Palam.
31. In Balak Ram's case (which pertains to village Shahbad Mohammadpur) this Court noticed that the Award with respect to village Palam showed that in some places the land had pits the depth of which varied from 4 to 20 feet. It has already been mentioned by us that in village Matiala, in the worst type of land which is Block C, the depth of the pits varied from 5 to 8 feet. In this view of the Respondent that the land in village Matiala was inferior in quality to the land in village Palam.
32. Learned Counsel for the appellant made a final submission relying upon Ex.A-10 in this appeal, which is a pamphlet captioned "Guidelines for filling the application form for sale/transfer of lease-hold built-up residential plot. "This pamphlet is issued by the Delhi Development Authority. The schedule of rates for self-assessment mentioned therein indicates market rates of land per square metre applicable upto 30th June, 1989 in respect of Janakpuri as being Rs.5,000/-. It was, therefore, contended that the market value of land in Village Matiala should be assessed on that basis. In Support of his contention that a document of this nature could be looked into for the purpose of determining the market value of the land, learned Counsel relied upon a Division Bench decision of this Court in RFA. No.240/90 (Chandan & Ors. Vs. Union of India, decided on 20th July, 1992). In that case, reference was made to another decision of this Court rendered in RFA.No.299/84 in which a circular issued by the Central Government was held to be quite relevant for determining the market value of land. However, this Court in RFA. No. 240/90 declined to follow the judgment in RFA. No. 299/84, though for other reasons, and proceeded to decide the appeal on its own merits. Consequently, we find that the decision of this Court in RFA. No. 240/90 is not relevant for deciding this appeal.
33. A part from this, a document issued by the Delhi Development Authority in 1989 can hardly be of any help in determining the market value in 1984, about five years earlier. Moreover, there was some dispute between the Counsel for the parties about the proximity of Janakpuri to Village Matiala. There is also absolutely nothing to show that there is any similarity between the land in Janakpuri and village Matiala. We also find that this document has not been discussed either by the Land Acquisition Collector or by the learned Additional District Judge. Consequently, we decline to place any reliance on Ex. A-10 for arriving at the market value of land in village Matiala.
34. We have really no option but to readily accept the finding rendered by the earlier Division Benches of this Court to the effect that the land in all the nine villages is more or less the same. We also find it difficult to subscribe to the view that the land in Village Palam is superior to the land in Village Matiala. There is no doubt that the sale ransactions on record show that the market value of land in Village Matiala or about the date of the notification issued under Section 4 of the Act, that is, 27th January, 1984 was a little less than the market value of land in VillagePalam. Nevertheless, we are pursuaded to hold that the situation, potentiality, character and quality of the land in the two villages is substantially similar so as to enable us to return a finding that the compensation awarded in respect of land acquire in Village Matiala be the same as the compensation awarded in respect of land acquired in Village Palam.
35. With regard to the second contention of the learned Counsel for the appellant that the 1/3rd deduction towards development costs is not warranted, we need only mention that the decision in Solanki's case has re-ceived the imprimatur of the Supreme Court in the case of Satpal & Ors. Vs. Union of India & Ors., .
36. The learned Counsel for the Appellant, however, submitted that the validity of the deduction made in Solanki's case was not debated upon in the Supreme Court. We regret our inability to agree. For one, it is not possible or even advisable to hazard a guess, one way or another, as to what has transpired in the Supreme Court in given case. Secondly, we have arrived at the conclusion, subsequently, that the decision on the question of deductions was given by this Court on merits and did not proceed on the basis of the concession made by learned Counsel therein. The decision of this Court in Solanki's case was fully upheld by the Supreme Court, and we are entitled to assume that it was also upheld on the question of the correctness of the deduction made.
37. We are also of the view that the rationale for awarding compensation for land acquired in Village Matiala at the same rate as in village Palam should also form the basis for making a deduction of 1/3rd from the market value of the land.
38. Additionally (assuming any additional reasons are needed) we find that the learned Counsel for the appellants in Solanki's case was not wrong in conceding that deduction for development costs at 1/3rd of the market value of the land should be made.
39. The reasons for making deductions in the market value of the land can be several. A deduction can be for development costs such as roads, drainage and other amenities, Smt. Tribeni Devi and Ors. Vs. Collector, Ranchi, and Land Acquisition Officer Vs. L. Kamalamma & Ors., . A deduction may also be in view of the fact that the sale transactions which are available on record are for small plots where as what has been acquired is a huge area. It is common knowledge that smaller plots are generally sold for a higher price than larger plots but that is not an absolute proposition. (Bhagwathula Samanna & Ors. Vs. Special Tehsildar, ). However, the evidence on record in this appeal does suggest that smaller plots of land have been sold for a much higher rate than larger plots. This is clear from a comparison of some of the exhibits in the present appeal.
40. It was after discussing and taking into consideration these and other decisions of the Supreme Court that this Court in Solanki's case deducted 1/3rd from the assessed market value of the land.
41. This Court did not proceed only on the basis of the concession made by learned Counsel appearing in that case.
42. The Division Bench of this Court in Ram Kumar and Ram Phool cases (supra) did say that there is no express statutory provision in the Act enabling the Acquiring Authority or Reference Court to make any deduction on account of development cost. Deduction if made, would not only be ultra vires the provisions of Sections 23 and 24 of the Act and, therefore illegal, but would also be unconstitutional.
43. The contention of the learned Counsel for the appellant that a deduction is per se unwarranted and is violative of Art 300A of the Constitution or is not authorised by any provision of the Act, is really academic. Deductions have been accepted by the Supreme Court from sometime in 1972.
(See for example Smt. Tribeni Devi and Ors. Vs. The Collector, Ranchi, , Brig. Sahib Singh Kalha & Ors. Vs. Amritsar Improvement Trust & Ors., , Gulzara Singh & Ors., etc. Vs. State of Punjab & Ors., , K.S. Shivadevamma and Ors., Vs. Assistant Commissioner and Land Acquisition Officer And Anr., Basant Kumar & Ors. Vs. Union of India & Ors., , Shimla Development Authority & Ors. Vs. Santosh Sharma and Another, , Land Acquisition Officer Revenue Divisional Officer, Chittor Vs. L. Kamalamma and Ors. and Hasanali Walimchand Vs. State of Maharashtra, .
It is now too late in the day to question the validity of the deduc-
tions being made. If nothing else, at least Art.141 of the Constitution pursuades us to hold that deductions are permissible under the law of the land.
44. Consequently, we hold that the appellant is entitled to compensation at the rate of Rs.47,224/- per bigha.
45. Besides compensation at the aforesaid rate, the appellant will be entitled to 12% additional amount under Section 23(1A) of the Act. The appellant will also be entitled to solatium at the rate of 30% of the market value of land. The amount of compensation awarded by us is in excess of the amount awarded by the Land Acquisition Collector. Therefore, the appellant will be entitled to interest on the excess amount at the rate of 9% per annum from the date of taking possession of the land by the Land Acquisition Collector upto the date of taking possession of the land by the Land Acquisition Collector upto the date of payment of such excess into Court. If the excess or any part thereof was paid into Court after the date of expiry of a period of one year from the date on which possession is taken, interest at the rate of 15% per annum shall be payable from the date of expiry of the said period of one year on the amount of such excess or part thereof which has not been paid into Court before the date of such expiry.
The appellant will be entitled to proportionate costs of the appeal.
The appeal stands disposed of.