(Delivered by Hon. Arvind Kumar Tripathi (II), J) Heard learned counsels for the parties and perused the record.
These two land acquisition appeals have arisen out of the same judgement dated 18.01.2006 passed by Additional District Judge, Court No. 1, Jhansi. Hence, these two appeals are being taken and decide together.
Total 45.86 acre land in village Pichaur, Paragna Tehsil Jhansi, District Jhansi was acquired for construction of residential colony on proposal of Secretary, Jhansi Development Authority, Jhansi, under Section 4 (1) of Land Acquisition Act, Notification No. 1130/8 L.A.C.(85-86), which was published in Gazette U.P. Government dated 20.08.1986. Notification under section 6 (1) of Land Acquisition was published in U.P. Gazette vide notification No. 3245/11-5-87-70 L.A./87 dated 23.07.1987. The land of Chandra Prakash and Deepak Kumar measuring 0.87 1/2 acres (3200 sq. feet) was also acquired by the same notification and the Collector Jhansi vide award dated 20.06.1989 rejected the objections filed by Chandra Prakash and Deepak Kumar and fixed the rate of total acquired land as follows:-
Feeling aggrieved, objections were filed before Collector, Jhansi, who referred it to District Judge, Jhansi which was numbered as Reference Case No. 211 of 1992. The matter was transferred to the 1st Additional District Judge, Jhansi. After hearing the parties and going through the objections and evidence. The reference court decided the reference vide order dated 18.01.2006 and fixed the compensation of the land of Chandra Prakash and Deepak Kumar, area measuring 0.87 1/2 acre at the rate of Rs. 7.50 paise per Sq. feet after deduction of 40% from the rate of Rs. 12.50 per sq. feet as shown in sale deeds filed by objectors and for construction over the land Rs. 6,30,160/-, loss of earning Rs. 50,000/- and solatium and interest according to Section 23 and 28 L.A. Act.
Feeling aggrieved, Chandra Prakash, Deepak and Secretary, Jhansi Vikash Pradhikaran filed the above appeals.
It has been argued by the learned counsel of appellant in the First Appeal No. 224 of 2006 that condition precedent for maintaining a reference under section 18 of the Act is non-acceptance of the award by the claimants/respondents, however, having accepted the award and received the compensation without any protest, their reference application itself was not maintainable. Merely, because the Collector in a routine manner, has forwarded the reference application of the respondents/claimants for adjudication before the court will neither make it maintainable nor will take away the effect of the agreement and acceptance of the award. The learned court below has erred in law and facts both in holding the compensation amount awarded by the Collector as inadequate or insufficient and has also erred in enhancing the same in an arbitrary, excessive and exorbitant manner. Ordinarily 30% to 40% deductions towards development charges have been held as just and lawfully permissible by the Apex Court, but even 10% deductions allowed by the Collector for the development charges and levelling work have been held as impermissible by the learned court below, which is wholly illegal and arbitrary. Sale deed of a very small area of land cannot be made basis for determining the market value of land. The learned court below has erred in placing reliance on the sale deed dated 02.07.1985 relating to an area of only 3200 Sq. Feet. The valuation report of the Private Architect relied on by the claimants was not proved by the claimants or the Architect. The valuation report submitted by the appellants were of the approved and departmental Executive Engineer of Public Works Department and was based on relevant data and calculation. The rate and amount of interest awarded by the learned court below is highly excessive, arbitrary. The learned court below has erred in awarding the interest on the amount of solatium.
It has been argued by learned counsel for appellants in First Appeal No. 582 of 2006 that the award of Rs. 7.50 per Sq. feet is wrong in as much as the circle rate is more than Rs. 25 per Sq. feet and the award in the case of Prem Narain and others which is of the same land has been confirmed by the Supreme Court @ Rs. 12.50 per Sq. feet land area is not too big and only .87½ acres (about 3000 Sq. yards) has been acquired and being in residential commercial area can readily be purchased @ Rs. 25/- per Sq. feet hence land compensation should be at least be Rs. 12.50 per Sq. feet. The compensation for closure of the match factory is too low. Regard should have been taken for compensation payable to the workers under Industrial Disputes Act formula and the loss of business to the owner. Costs of the building should have been Rs. 10 lacs as per evidence. The finding on issue no. 5 is perverse. The land of Budha Devi in case No. 280 of 1990 was adjacent and the learned District Judge has gone wrong in saying that the parties are different whereas the land being acquired was in the same area covered by same notification, hence the rate applied should have been uniform.
From the argument of the parties it is clear that the following points are to be determined.
1. Whether the valuation of the land at the rate of Rs 7.50 after 40% deduction per Sq. Feet is inadequate and whether deduction of 40% is justified?
2. Whether the appellants in First appeal No. 224 of 2006 are not entitled to file reference case after their receiving the compensation without any objection.
3. Whether the compensation for factory, building etc is inadequate.
Determination of Point No. 1.
The reference court has fixed amount Rs. 12.50 per Sq. Feet valuation for the land acquired and has made 40% deduction from it.
It is admitted to both parties that in case of Prem Narain vs. State F..A. No. 348 of 1998 another Bench of this Court has fixed the valuation of the land acquired in the same notification to be Rs. 12.50 per Sq. Feet. An appeal was filed against decision in reference No. 210 of 1992 in F.A.No. 348 of 1998. The division Bench while deciding the F.A. No. 348 of 1998 has held that "this appeal has been filed against the impugned judgement of the court below dated 20.03.1998 passed in Land Acquisition Reference No. 210 of 1992.We have carefully perused the impugned judgement. It appears that the land of the respondents was acquired under the Land Acquisition Act and compensation was granted by the S.L.A.O. at the rate of Rs. 10/- per squire feet. By the impugned judgement the rate has been increased to Rs. 12.50/- per square feet. Thus the enhancement has been made for a small amount." It has again observed that "in the impugned judgement the court below has relied on two exemplars one of land measuring 2.85 acre and the other of area .36 acre. A perusal of the impugned award shows that 10% deduction has been granted. Hence there is no infirmity relying on the said exemplars. The court below has gone into the oral and documentary evidence in great detail and has only increased the compensation by small amount. There is no infirmity in the impugned judgement. The appeal is dismissed."
It was also pointed out that the State had moved review petition against that judgement, but the review application was dismissed in default on 04.05.2011. It is pertinent to mention that First Appeal No. 348 of 1998 which arose from the decision of Reference No. 210 of 1992 was regarding the same notification by which the Reference No 211 of 1992 has arisen. In view of this it is clear that this Court also has already fixed compensation of land acquired by the same notification to be Rs. 12.50 per Sq. feet. In Reference No. 211 of 1992 the Reference Court has fixed the amount of compensation to the rate of Rs. 12.50 per Sq. feet.
We have gone through the exemplars on which the reference court has relied and we are of the view that there is no illegality or infirmity in fixing the amount of compensation.
Another question has has been raised is regarding the amount of deduction from the fixed compensation amount. A close perusal of the judgement L.A. Referrence No. 211 of 1992 reveals that while deciding the issue no. 2 "whether the deduction of 10% is wrong on the ground that the land is not being plain, the court has held that since the land was already plain the 10% deduction is illegal."
While deciding issue no. 4 in the instant appeal "as to what compensation plaintiffs are entitled" the court has held that 40% deduction is to be made because exemplars of small units have been filed. From the paper book submitted by the Secretary Jhansi Vikash Pradhikaran, it is clear that the witnesses Jitendra Swaroop Srivastava and Amin have admitted in their cross-examination that in the disputed land there was match Factory, one go-down, residential quarters and workshop. He has also submitted that land was acquired for residential colony Jhansi. He has also admitted in his cross-examination that the land of Prem Chand is at a distance of 4 Jarib from the disputed land. A Survey Commissioner appointed by the court, has given its report in which he has specifically stated that the disputed land is plain. Hence there is no illegality in disallowing 10% deduction from fixed compensation, as the acquired land is plain. Now only question remains is as to whether 40 % deduction made is justified or not.
The 40% deduction has been made by the reference court on the ground of exemplars being of small piece of land.
Learned counsel for the appellant in F.A. No. 582 of 2006 relied upon the decision of Apex Court in case of Bhagwathula Samanna and others vs. Special Tahsildar and Land Acquisition Officer, Visakhapatnam Municipality, visakhapatnam (1991) 4 SCC 506. In which the Apex Court has held that :-
"The proposition that large area of land cannot possibly fetch a price at the same rate at which small plots are sold is not absolute proposition and in given circumstances it would be permissible to take into account the price fetched by the small plots of land. If the larger tract of land because of advantageous position is capable of being used for the purpose for which the smaller plots are used and is also situated in a developed area with little or no requirement of further development, the principle of deduction of the value for purpose of comparison is not warranted."
In case of Trishala Jain and another vs. State of Uttaranchal and another (2011) 6 SCC 47, it has been held that More often than not, it is not possible to fix the compensation with exactitude or arithmetic accuracy. Depending on the facts and circumstances of the case, the court may have to take recourse to some guesswork while determining the fair market value of the land and the consequential amount of compensation that is required to be paid to the persons interested in the acquired land.
Apex Court in the same judgement in para 11 & 12 has held that:-
"The principle of deduction in the land value covered by the comparable sale is thus adopted in order to arrive at the market value of the acquired land. In applying the principle it is necessary to consider all relevant facts. It is not the extent of the area covered under the acquisition which is the only relevant factor. Even in the vast area there may be land which is fully developed havig all amenities and situated in an advantageous position. If smaller area within the large tract is already developed and suitable for building purposes and have in its vicinity roads, drainage, electricity, communications, etc. then the principle of deduction simply for the reason that it is part of the large tract acquired, may not be justified.
The proposition that large area of land cannot possibly fetch a price at the same rate at which small plots are sold is not absolute proposition and in given circumstances it would be permissible to take in to account the price fetched by the small plots of land. If the larger tract of land because of advantageous position is capable of being used for the purpose for which the smaller plots are used and is also situated in a developed area with little or no requirement of further development, the principle of deduction of the value of purpose of comparison is not warranted."
Apex Court has also held in the same decision that "this Court depending on the facts and circumstances of each given case, has taken the view that that deduction on account of expenses of development of the sides could very from 10% to 86.33% depending on the nature of the land, its situation, the purpose and stage of development.
There is nothing on record to show that as to what amount was spent on developing this land. This land was already plain and being Match facory, residential area and Go-down developed as has come in the evidence so in view of observation made in the case of Trishala Jain and another (supra) no deductions is justified.
The principal laid down by Apex Court in case of Tirshala Jain and another vs. State of Uttaranchal and another (2011) 6 SCC 47 (supra) is fully applicable in this case.
It was argued from the side of State through learned Standing Counsel that in the judgment of First Appeal No. 348 of 1998, the earlier Division Bench has held that 10% deduction has been granted, hence there is no infirmity relying with said exemplar.
A perusal of decision of Division Bench of this Court in F.A. No. 358 of 1998, reveals that 10% deduction was made in the award. Considering this aspect the market value of acquired land has been fixed @ Rs. 12.50 per sq. feet. So it can safely be assumed that finally Rs. 12.50 per sq. feet has been fixed as market value.
It is settled principle of law that the judicial pronouncement can safely be relied upon by courts in fixing compensation payable to the claimants, but such instances again should be comparable in all respects.
In the case of Daisy vs. State of Kerala AIR 1971 SC 2272, Apex Court took the view that the value fixed in earlier case can be taken as a guide and fix the value in respect of contiguous law acquired subsequently or appealed subsequently after comparing the relative situation and importance of two plots.
In the case of K. Periasami vs. Land Acquisition Officer (1994) 4 SCC page 180 Apex Court in the matter of applying parity or quality took a view that the location of law shall be same and acquired under same notification with same advantage.
The Apex Court in the case of Union of India vs. Dhyan Singh 2000 AIR SCW 4936 said that :-
"In view of the decision of this Court in Civil Appeal No. 4405 of 1997 in which land value has been fixed Rs. 16,750/- per bigha for lands covered by the same notification there is no reason not to adopt the same value as for the land involved in this appeal also".
Since F.A. No.348 of 1998 arising out of Reference No. 210 of 1992 and reference Case No. 211 of 1992 have arisen out of same notification, hence on the basis of above decision of Apex Court, valuation fixed by reference court @ Rs. 7.50 per sq. feet is inadequate and the deduction made by reference court is not sustainable. The valuation is fixed at the rate of Rs. 12.50 per sq. feet.
Point No. 2.
It was argued from the side of appellant that while receiving the compensation the appellants in case No. 582 of 2006 has not mentioned their protest/ objections. In view of this they are not entitled to file the reference. For this they have relied upon the decision of Division Bench of This Court 2009 (7) ADJ 80 (DB), State of U.P. and another VS. Purshottam Das and others in which this Court has held that "if no protest has been raised by the claimant in accepting the compensation as fixed by the L.A.O. (Collector), the same cannot be challenged and this point has already been dealt with by this Division Bench in its judgement reported in 2008 (3) AWC 3060, Ghaziabad Development Authority vs. Chandra Bhan and others.
Learned counsel for Jhansi Development Authority has also relied upon a case of Land Acquisition Officer vs. Shivabai and others (1997) 9 SCC 710 that when the compensation was received without any protest, they are not entitled to seek any reference.
Learned counsel for Jhansi Development Authority also relied upon AIR 1984 ALLAHABAD 151 Surendra Mohan hans and another vs. State of U.P. and another in which it has been held that section 31 (2) second proviso creates a statutory bar to a person laying down that a person who has accepted the compensation without protest would be deemed to have waived this right to get higher compensation and his reference application in that event would not be maintainable.
On the above point learned counsel of Prem Chandra has relied upon a Full Bench Decision of AIR 2004 Andhra Pradesh, page 1, District Collector, Kakinada and others vs. P.Naghbhushan Rao and others in which it has been held that " in the absence of any manner of protest having been specified in the Act and the time when protest is to be lodged., act of filing of an application seeking reference to Civil Court when the period of limitation prescribed under section 18 of the Act will impliedly infer that the claimant/person interested had accepted the amount with protest. Not expressly lodging protest at the time of receiving amount in such circumstance would not amount to waiver of the right to seek reference under section 18 of the Act. Unless it is positively shown that a person interested were made aware of their right to have the compensation determination by a civil court and they accepted amount without any demur, only in such circumstances and inference can be drawn that they never intended to seek reference.
In case of Ajit Singh vs. State of Punjab (1994 AIR SCW 2459) Supreme Court has held that very fact of seeking reference by the person interested within the limitation will manifest their intention. Therefore, the protest against the award of the collector is implied, notwithstanding the acceptance of compensation.
In case of Orisa Industrial Infrastructure Development Corporation vs. Supai Munda AIR 2004 SC 390,it has been held by the Apex Court that when the amount of compensation has been accepted under duress, then proviso of section 31 (2) of the Act which provided that the reference under section 18 of the Act is incapable, unless a person has received the compensation amount under protest is not applicable.
A perusal of record, reveals that an oral objection dated 22.06.1989 was put up before the S.L.A.O. Jhansi regarding inadequacy of award. It is also mentioned in the rejoinder affidavit that S.L.A.O. Jhansi has stated that if he will write objection and will not sign the acceptance then he will not be paid compensation and will be harassed in giving the compensation. Thus being threatened he did not write that he is receiving compensation amount under protest but has within time, filed his objection before the L.A.O. Regarding the award and the S.L.A.O. finding it according to law referred to the civil court. In view of this, his objection is maintainable.
In the Case of Orisa Industrial Infrastructure Development Corporation vs. Supai Munda (supra) it has been specifically mentioned that the claimant has deposed that he received the compensation by putting his thumb impression on the relevant papers, the contents of which were not explained to him. It was further told to him that unless he put his thumb impression the compensation amount would not be paid. The office further told that the compensation amount would not be paid to him if he put objection. The Apex Court has held that State authority concerned concerned the claimant to accept the amount of compensation fixed by them is established by convincing evidence. It is also evidently apparent that the claimant made oral protest as to the sufficiency of the amount of compensation, which has been cowed down by resorting to coercive method.
In view of above discussion the argument advanced by the learned Standing Counsel that the appellant in First Appeal No. 582 of 2006 has not right to file objection is not tenable and the reference court has not committed any illegality in deciding the reference. Point No. 2 is decided accordingly.
Point No. 3.
Learned counsel for the appellants in First Appeal No. 582 of 2006 has also in their memo of First Appeal objected to the compensation for closure of match factory, loss of business and costs of building being too low, but no serious argument were placed.
On record also there is no evidence to show that what was the loss due to closure of the factory. It has also not been proved that at the time of acquiring the land the match factory was in running condition. In view of this there is nothing on record to assess the compensation for closure of match factory and loss of business. The reference court has assessed the costs of building to Rs. 6,30,160/- and Rs. 50,000/- as loss of business, which according to reference court has based on Architect report dated 10.05.1989.
In view of this, appellants in First Appeal No. 582 of 2006 are not entitled to any enhancement.
This point is also decided accordingly.
In view of the above discussion, the prayer in F.A. No. 224 of 2006 cannot be granted and the appeal is liable to be dismissed and is hereby dismissed.
First Appeal No. 582 of 2006 is partly allowed. The compensation for the land is declared to be Rs. 12.50 per sq. feet and the deduction of 40% made by the reference court is quashed. The appellant of First Appeal No. 582 of 2006 is also entitled to all other benefits which are accrueable with the enhancement amount.
Order Date :- 12.10.2012.
v.k.updh.