Allahabad High Court
State Of U.P. Through Collector vs Surendra Kumar Gupta And Ors. on 1 November, 2007
Equivalent citations: 2008 (2) ALL LJ 353, 2008 A I H C 1564, 2008 (3) ABR (NOC) 487 (ALL.) = 2008 (2) ALJ 353, (2008) 70 ALL LR 568
Author: Prakash Krishna
Bench: Prakash Krishna
JUDGMENT Prakash Krishna, J.
1. These are seven first appeals against common Judgment and decree dated 14.10.1980 passed by the fifth Additional District Judge, Bijnore in seven land acquisition reference eases. The Counsel for the parties jointly agreed that the controversy involved in this bunch of appeals is identical and can be disposed of by a common Judgment conveniently. The argument was advanced with reference to the facts of the first appeal No. 208 of 1981: State of U.P. v. Surendra Kumar Gupta. The argument was advanced only in this case and it was agreed that it will hold good for other appeals also.
2. The State Government acquired a certain piece of land under the Land Acquisition Act, by issuing notifications under Sections 4 and 6 thereof dated 18th of April, 1970 and 12th of April, 1972 respectively. The land, thus, acquired lies in village Harlampur Deepa, Pergana, Tehsil and District Bijnore. It was acquired for the purposes of constructing a government hospital and staff quarter on permanent basis. The District Land Acquisition Officer by his award dated 27th of September, 1984 awarded compensation at the rate of Rs. 3705/- per acre depending upon the quality of land and treated the sale deed dated 8th of February, 1968 in respect of plots No. 415 and 416 best exemplar to determine die market value of the land in question on the relevant date. Feeling aggrieved by the said award the owners filed seven land acquisition references which were referred by the District Magistrate to the civil court under Section 18 of the hand Acquisition Act. All these references were consolidated and heard together and were disposed of, as indicated above, by one consolidated Judgment which is under appeal.
3. Before the District hand Acquisition Officer it was pointed out that Surendra Kumar, Virendra Kumar and others, Smt. Main Kishori, Shri Om Prakash Sharrna and Smt. Shaknntala Devi had purchased a portion of land of plot Nos. 415 and 416 from Narendra Kumar and Sanjai Kumar. All these sale deeds relate to the period February 1970 to May, 1970. Out of total area of these plots i.e. 2.696 acres, 1.009 acres was sold out before the notification under Section 4 of the Act. The District Land Acquisition Officer in his award found that Sanjai Kumar and Narendra Kumar are entitled to receive compensation in respect of the remaining land i.e. 1.930 acres and the vendors would be entitled to receive compensation proportionate to the area they purchased. Smt. Manorma Sharrna, one of the purchasers could not file the original sale deed before the District Land Acquisition Officer, therefore, it was provided that she will get compensation after filing of her sale deed. The reference court treated the sale deed dated February 8, 1968 in respect of plot Nos. 415 and 416 as the best exemplar.
4. The reference court has awarded compensation at the rate at which the purchasers had purchased the land during the period February 1970 to May, 1970.
5. Feeling aggrieved by the said Judgment and decree except one all the appeals are at the instance of the State Government. The first appeal No. 290 of 1981 is on behalf of the owner of the land in question and is in die nature of cross appeal for enhancement of compensation. The reference court has awarded compensation to Narendra Kumar and Sanjai Kumar at the rate of Rs. 8/- per sq. yard while to Jain Farms and Industries Limited (Appellant in appeal No. 290 of 1981) it has been awarded at the rate of Rs. 4/- per sq. yards.
6. Heard learned Counsel for the parties and perused the record. The reference court has found that the land in question has great potential value for the purposes of raising construction. Towards the eastern side of the land acquired there is abadi of plot No. 149. Mandawar road is towards the west of the land in question. Civil Court compound situate in plot No. 423 is towards south of the land in question. There also exists a Kothi known as "Phoons Ka Bungalow" and in the Northern side there is cultivatory land. The three sides of the land in question is, thus, surrounded by the buildings. The reference court reached to the conclusion that the land in question has great potential value for the purposes of raising, construction. Officers' Colony is also there in a very old Kothi towards the southern side. There is another Kothi winch was in occupation of a Civil Surgeon. From the topography and situation of the disputed land, the reference court has rightly reached to the conclusion that the land has potentiality for the construction purposes. It has also taken into account that on the eastern side, the Kiratpur-Nagina road exists at a distance of about 300 or 400 yards, if one goes to that side straightway. The sale deeds on the record do also suggests that there has been very fast escalation in the land prices. No attempt was made by the learned standing Counsel nor there is any ground in the memo of appeal disputing these findings. There being no dispute on this score it is legitimate to reach to the conclusion that the disputed land had great potential value for the purposes of raising construction on the date of notification under Section 4 of the Act.
7. Now the only question remains as to what was the market value of the land in question on the date of relevant notification. The District Land Acquisition Officer has awarded compensation depending upon the quality of soil, to which the reference court did not agree and in my view rightly so. When a land is acquired not for agricultural purposes but for the purpose of raising construction, it is a matter of common knowledge that soil of inferior quality with regard to the agricultural operation letches higher price in open market if it is transferred for the purposes of raising construction. The Apex Court in State of West Bengal v. Shyampada and Ors. has held that while the land classification for revenue purposes might have its own rational, it is not uncommon to find that the land which has a lower classification for revenue purposes fetches higher price in market vide para 4 thereof. The criteria of soil classification adopted by the District hand Acquisition Officer is, therefore, obviously incorrect, for the purposes of determination of compensation under Section 23 of the Land Acquisition Act.
8. The District Land Acquisition Officer treated the sale deed dated 8th of February, 1968 as exemplar to determine the market value of the land on the relevant date. The reference court disregarded the said sale deed and preferred to determine the market value of the land on die basis of the actual sale consideration given by the vendees to the vendors for purchase of different portions of the very land just before the date of notification under Section 4 of the Act.
19. Narendra Kumar and Sanjai Kumar were owners of plot Nos. 415 and 416 measuring 2.696 acres and they sold to other claimants by means of various stile deeds after carving out plots to the extern of 1.009 acres. These sale deeds relate to the period February, 1970 to May, 1970. These sale deeds can he treated as good evidence provided the transaction is genuine. In other words, if there is material on record to show that the transactions which took place immediately before issuance of notification under Section 4 of the Land Acquisition Act not with a view to inflate the prices of land or create evidence for the purposes of compensation, the sale deeds can be relied upon as they are the best piece of evidence.
10. On an examination of record, it is evident that no evidence was produced by the appellant before the reference court challenging or doubting the genuineness or correctness of these sale deeds. It has been found by the reference court that purchasers arc not in any manner related to the vendors. Witnesses such as Chandra Shekhar Shastri who proved the sale deed executed in favour of his wife Smt. Malti Kishori, Virendra Kumar Sharma who proved his sale deed in favour of his wife Smt. Manorma Sharma executed on 21st of January, 1970, Shri Satya Veer Singh who also proved the sale deed executed in Favour of Suit. Shakuntala Devi etc. were examined and veracity of testimony has not been doubted by the court below. These witnesses have proved the sale deeds and they have stated that the consideration was actually paid as stated in the sale deeds. They also asserted their possession. As against this there is no iota of evidence on behalf of the State of U.P. to show that these transactions were sham or tainted transactions. As a matter of fact, it is a case of no evidence so far as the appellant, State of U.P., is concerned. No attempt was made to discredit the sale deeds or to show that in spite of the sale deeds, the vendors continued in possession. The finding of the reference court holding that these transactions are genuine transactions, thus, is based on material on record and there is no material before this Court to take a different view. On a threadbare analysis of the evidence the reference court has rightly readied to the conclusion that these sale deeds as genuine transactions. However, much emphasis was laid by the learned standing Counsel from some stray observation made by the court to the effect that vendors and some of the purchasers had knowledge of contemplated proceedings for acquisition of the property by the government but even then they liked to purchase it. In one of the sale deeds according to the court below it was specifically mentioned at the bottom that if the property was acquired by the State, the vendees would get back the consideration paid by them. On a careful consideration and deeper scrutiny, it is difficult to agree with the submission of die learned standing counsel. Pointedly a query was put by the court to the learned standing Counsel to refer evidence if any in support of the above observation that the vendors and some of the purchasers had the knowledge of the proceedings for acquisition of the property, but he failed to do so. He could not point out even a single piece of evidence oral or documentary in support of the aforestated observations of the reference court. The above observation of the reference court evidently has been made inadvertently, being perverse is liable to be ignored. So far as the factum that in one of the sale deeds it is mentioned that if the property is acquired by the State, the vendees would get back consideration paid by them is concerned, it is also not of much help to the appellant. The learned standing Counsel could not refer any such sale deed during the course of the argument wherein the above averments have been made. Even otherwise also judicial notice can be taken about, that inmost of the sale deeds one finds an usual Clause regarding refund of sale consideration, if ultimately it is held that vendor had no authority or title to execute the sale need. Even if hi ere is any such averment in one of the sale deeds, the appellant cannot make any capital out of it and at any rate it will not take place that die transaction in question (sale deeds) is not a genuine document. The sale deeds were executed at varying sale considerations ranging from Rs. 9 to 10/- per sq. yard and the reference court has not committed any illegality in awarding the compensation accordingly to the vendors. There is no infirmity in me order of die court below.
11. The reference court has also found that the sale deed dated 8th of February, 1968 has not been proved as the same was not filed before it.
12. In addition to the above, to keep record straight there are certain other facts which are not common. It is apt to note them and place on the record. In first appeal No. 207 the sole respondent has died on 4th of July, 1998 and an application to abate the appeal being application No. 273490 of 2006 dated 14th of December, 200o is on the record. The appellant has not filed any substitution application or counter affidavit to the abatement application in spite of several opportunities granted to it. Similarly, in first appeal No. 341 of 1981 sole respondent Om Prakash Soti has expired on 1st of October, 1992 and abatement application No. 272480 of 2006 was filed but neither any substitution application has been filed nor a counter affidavit has been filed. The cases were adjourned earlier to enable the learned standing Counsel to take requisite step in this regard. However, it was thought fit to hear and decide the other appeals on merits including the above appeals as the same set of lawyers were appearing in all the cases. Similarly in the first appeal No. 208 of 1981 the respondent No. 7 has expired and an information was given regarding the death, as per entry in the order sheet dated 7th of April, 2005 by me learned Counsel for the respondents bin no step was taken in this case also.
13. Viewed as above, there is no merit in the appeals filed by the State of U.P. and ail of them are dismissed accordingly. First Appeal No. 290 of 1981 First Appeal No. 290 of 1981 The appellant herein was granted compensation at the rate of Rs. 4/- per sq. yard. This is an appeal for enhancement of the compensation amount. The reference court has found that the other claimants were Narendra Kumar Snarma and Sanjai Kumar and lain Farms and Industries Limited. Narendra Kumar Sharma and Sanjai Kumar Sharma are the owners of the plots No. 415, 416 and 422. These plots are in straight line adjoining the civil court compound towards south. Mandawar Road is on the other side, it has awarded compensation at the rate of Rs. 8/-per sq. yard to M/s. Narendra Kumar Sharma and Sanjai Kumar. The transferees of them, as noted above, who are the other claimants have been awarded compensation at the rate of Rs. 9/- to 10/- per sq. yard. The price of plots of Shri Narendra Kumar Sharma and Sanjai Kumar Sharma was reduced to Rs. 8/- as in comparison to the land of other claimants they were at greater distance from the abadi. These persons have not filed any cross objection for enhancement of compensation. The appeal has been filed by Jain Farms and Industries Limited to whom compensation has been awarded as the rate of Rs. 4/- per sq. yard. The plot Nos. 405, 412, 417/2 and 418 total area 10-10-0 bmhas belong to Jain Farms and Industries Limited. These plots as found by the reference court are further far away from abadi and are situated towards northern side of the acquired land. The reference court has found that the plot Nos. 417 and 418 adjoins the land of plot Nos. 416 and 422 but none of them adjoins Mandawar Road. Plot Nos. 41.7 and 418 adjoin the land of plot Nos. 416 and 422 which belong to Narendra Kumar Sharma and Sanjai Kumar, to whom compensation at the rate of Rs. 8/- per sq. yard has been awarded. The adjoining plot Nos. 417 and 418, even if not treated similar for the purposes of payment of compensation, will certainly fetch more than half of the price of plot Nos. 417 and 418. All these plots are situate in a straight line and it has been found by the reference court itself in the earlier part of the Judgment that all these plots have great potentiality for building purposes. Taking into consideration that these plots do not adjoin Mandawar Road as also they are at a greater distance from abadi, compensation should have been awarded at the rate of Rs. 6/- per sq. yard if not more with regard to these plots. Fifty per cent reduction in price from the market value of the adjoining plots made by the reference court is excessive. Time and again it has been held that compensation should be awarded at the same ram at which it has been awarded to the adjoining plots. Except comparatively the greater distance from abadi, there is no oilier circumstance to reduce the market value of the price so drastically as was done by the reference court.
14. Taking into consideration the entire facts and circumstances of the case, it is held that the appellant (Jain Farms and Industries Limited) is entitled to get compensation at the rate of Rs. 6/- per sq. yard instead of Rs. 4/- per sq. yard. To this extent the award of reference court is modified.
Solatium
15. An additional point regarding none grant of solatium by the reference court was pressed by the learned Counsel for the respondent. The District Land Acquisition Officer had granted solatium under its award dated 27.9.1974. The reference court has not said even a word in this regard in its Judgment for not gram of solatium. Submission is that payment of solatium is statutory liability of the acquiring body. The case in hand is governed by unamended Section 23 of the Land Acquisition Act. Under the said Section 15 per cent solatium is payable to the persons whose land has been compulsarily acquired. Reliance was placed upon a. Judgment of Apex Court in Sunder v. Union of India . This is a constitution bench decision of Apex Court. Controversy involved therein was whether interest is payable on solatium? This controversy has been answered by holding that Section 23 enumerates the various heads of compensation which include solatium also therein. 'Compensation' contemplated under Section 23 of the Land Acquisition Act includes solatium also and as such the interest is payable thereon. The controversy has been more directly answered by the Apex Court in Shree Vijai Cotton and Oil Mills Limited v. State of Gujrat . It is an interesting case. Significantly, in this case cross objection for grant of interest under Section 28 of the Land Acquisition Act filed before the High Court was dismissed as barred by time. The appeal before the High Court was at the instance of the State Government. The Apex Court held that the fact that cross objections were dismissed as time barred is wholly irrelevant so fat-as it relates to the question of entitlement of tenure holder to receive interest on the compensation amount tinder Sections 28 and 34 of the Act, is concerned. It has been held that so far as award of interest is concerned, it is never an issue between the parties. Once the conditions under Section 24 of the Act are satisfied, the award of interest is consequently and automatic. The payment of interest is not depending on any claim by the person whose land has been acquired. In view of Section 34 there can possibly be no lis between the parties regarding payment of interest. The relevant paragraphs i.e. paragraph 14 and 15 are reproduced below:
14. The High Court while appreciating the point in issue did not consider the mandatory provisions of Section 33 of the Act. The said section specifically provides that when die amount of compensation is not paid on or before taking possession of the land the Collector shall pay interest at 6% per annum front die date of taking over possession. The payment of interest is not dependent on any claim by the person whose land has been acquired. There can lie no controversy or any lis between the parties regarding payment of interest. When once the provision of Section 34 are attracted it is obligatory for the Collector to pay the interest. If he fails to do so the same can be claimed from the Court in proceedings under Section id of the Act or even from the appellate Court/Courts thereafter.
15. We have carefully examined, the reasoning of die High Court in reaching die conclusion which we have reproduced, in the earlier part of this judgment. We do not agree with the interpretation placed by the High Court on various provisions of the Act. Reading Section 23 with Section 26 of the Act it is clear that the award, which is deemed to be a decree, is the sum toted of conclusions reached by the Courts in determining compensation under Section 23(sic) the Act on appreciation of the evidence between the parties. The costs under Section 27 and the interest under Sections 28 and 34 are added to me compensation amount to make it a consolidated award. The costs and interest under the Act if not awarded by the lower Court can always be awarded, by lower Courts in any proceedings under the Act and to any party entitled to the same under die Act.
There is inherent evidence in the wording of Sections 28 and 34 to show that the framers of the Act intended to assure me payment of interest to the person whose land was acquired and it was not the intention to subject the said payment to procedural hazards. Section 34 lays down that "the Collector shall pay the 'amount, awarded with interest at 6% per annum'...." The legislative mandate is clear. It is a directive to the Collector to pay the interest in a given circumstance. Section '34 nowhere says that the interest amount is to be included in the award decree as prepared under Section 23(1) read with Section 26 of the Act. Similarly Section 38 provides "the award of die Court may direct that the Collector shall pay interest". Here also the award under Section 23(1) read with Section 26 has been kept distinct from the payment of interest under the section. The interest to be paid under Section 34 and also under Section 28 is of different character than the compensation amount under Section 23(1) of the Act. Whereas the interest, if payable under die Act, can be claimed at any stage of the proceedings under the Act, the amount of compensation under Section 23(1) which is an Award-Decree under Section 26, subject to the rules of procedure and limitation. The rules of procedure are hand maiden of justice. The procedural hassle cannot come. In the way of substantive rights of citizens under die Act.
16. The aforesaid observation will also be applicable with full force and vigour in the case of solatium also. The payment of solatium also is not dependani on any claim by the person whose land has been acquired, lis payment is consequential and automatic as in the case of 'interest'. In view of the Judgment of the Apex Court in the case of Shree Vijai Cotton and Oil Mills Limited (supra) there is sufficient force in the argument of tin1 learned Counsel for the respondents and it is held, though no cross objection has been tiled, the claimant respondents are entitled to get solatium at the rate of 15 per cent per annum as per unamended Section 23(2) of die Act. By way of abandon precaution, it is added here that the claimant respondents shall not be entitled to lay their claim of solatium at the enhanced rate.
17. In view of the above discussion, there is no force in the appeals preferred by the State of U.P. and these appeals are hereby dismissed with costs.
18. The first appeal No. 290 of 1981 filed by Jain Farms and Industries Limited is allowed in part and it is held that the appellant is entitled to get compensation at the rate of Rs. 6/- per sq. yard with all the consequential reliefs as per unamended sections.
19. The claimant respondents are also hereby declared to get solatium at the rate of Rs. 15 per cent per annum as contemplated under Section 23(2) of the Act.