Matter is taken in revised cause list.
Heard Sri N.K. Pandey, learned counsel for the appellant, Mohd. Quaseem, learned Standing Counsel for opposite party no.1 and perused the record.
None appeared on behalf of the opposite party no.2/ Lucknow Development Authority, Lucknow .
Facts , in brief , of the present case are that in order to acquire certain land for a scheme known as 'Sharada Sahayak Pariyojana', a notification under Sections 4 and 6 of the Land Acquisition Act, 1984 (hereinafter referred as 'Act') have been published on 19.1.1983 and 28.1.1983 respectively. Thereafter the possession of the acquired land consisting of Kahsra No. 1044 on 16.6.1983 and remaining Khatas number taken on 20.4.1983.
In the instant matter, the dispute relates to Khasra No.187 area 4 bigha and 13 biswa equivalent to 1,26,596.25 sq ft approx. It is not disputed between the parties that the Special Land Accusation Officer has granted compensation to the appellant/ Mohd. Rafique alias Achchan ( now deceased) at the rate of Rs. 1.41 per sq. ft.
Aggrieved by the said fact, Mohd. Rafique raised his grievance by filing Reference under Section 18 of the Act. , registered as Misc. Case No. 311 of 1989( Mohd Rafique alias Achchan Vs. State of U.P. and another) before the Presiding Officer, Nagar Mahapalika Tribunal Lucknow. The said matter alongwith other similar matters arising out of the same acquisition clubbed and heard together. In order to decide the controversy involved, the Tribunal has framed six issues/ point of determination , the first issue/ point of determination reads as under:-
"Whether the compensation awarded is insufficient and inadequate? If so what should be actual rate of compensation?"
By impugned judgment and award dated 17.10.1997 the Tribunal awarded Rs.4.10 per sq. ft. as compensation to the appellant. In addition to above said compensation other relief as mentioned in the award, have also been given. Aggrieved by the said judgment and award, present appeal has been filed under Section 54 of the Act, 1894.
During the pendency of present appeal Mohd Rafique alias Achchan has died , substituted by his legal heirs, namely,Mohd. Taufeeq, Mohd Tauseef, Mohd Tauheed and Naisha Faizan .
Sri N.K. Pandey, learned counsel for the appellant submits that in order to get compensation of the acquired land, an application by way of exemplar cited before the Tribunal that the land which situates in the same area has been sold out by way of registered sale-deed at the rate of Rs. 5.13 per sq. ft. on record as paper no. Ga-56. However, the Tribunal after taking into consideration the said fact without any basis or reason, awarded Rs. 4.10 per sq. ft. in respect to the acquired land of the appellant after making 20% deduction from the rate by which the land situated in the same area has been sold out by way of registered sale-deed at the rate of Rs.5.13 per sq. ft on the ground that the said land is small in area whereas the acquired land of the appellant is big in area . The said action on the part of Tribunal is contrary to law as laid down by Hon'ble the Apex Court in the case of Thakarsibhai Devjibhai Vs. Executive Engineer, Gujarat and other , 2001 (43) ALR 17 , hence he requests that that the judgment and award dated 17.10.1997 passed by the Tribunal in Misc Case No. 311 of1989 under Section 18 of the Act may be modified to the extent by awarding Rs. 5.13 per sq. ft in respect to acquired land by the official respondents.
Mohd. Quaseem , learned Standing Counsel for opposite party no.1 on the basis of material on record submits that the Tribunal in order to decide the controversy in the present case whether the compensation is awarded by Special Land Accusation Officer in respect to land so acquired is sufficient or not , has framed issue no.1 and on the basis of the material on record, the Tribunal came to the conclusion that appellant is entitled to get Rs. 4.10 per sq ft., so there is neither any illegality nor infirmity in the impugned judgment and award which is under challenge in the present case, liable to be dismissed.
As stated above, nobody appeared on behalf of the opposite party no.2/ Lucknow Development Authority in spite of the fact that the matter is taken in revised cause list.
In the instant matter it is undisputed between the parties that appellant's land Khasra no.187 having area 4 bigha 13 biswa situate in village Ujariyaon Pargana and Tehsil and District Lucknow acquired by the official respondents, possession taken on 20.4.1983. Thereafter by judgment and award dated 17.10.1997 passed by the Presiding Officer, Nagar Mahapalika Tribunal, Lucknow has awarded Rs.4.10 per sq. ft as compensation to the appellant in respect to the land acquired , so the point to be decided in the present case is as follows:-
"Whether the action on the part of the Tribunal thereby awarding compensation Rs. 4.10 to the appellant in respect to the land which has been acquired , is sufficient or not ?"
In order to decide the said controversy , it will be appropriate to go through the provisions as provided under Section 23 of the Land Acquisition Act which reads as under :-
"23. Matters to be considered in determining compensation- (1) in determining the amount of compensation to be awarded for land acquired under this Act, the Court shall take into consideration-
firstly, the market-value of the land at the date of the publication of the [notification under Section 4 , sub-section (1) ];
Secondly, the damage sustained by the person interested , by reason of the taking of any standing crops or trees which may be on the land at the time of the Collector's taking possession thereof;
thirdly, the damage( if any) sustained by the person interested at the time of the Collector's taking possession of the land , by reason of severing such land from his other land;
fourthly, the damage ( if any) sustained by the person interested , at the time of the Collector's taking possession of the land, by reason of the acquisition injuriously effecting his other property, movable or immovable, in any other manner, or his earnings;
fifthly, if , in consequence of the acquisition of the land by the Collector, the person interested is compelled to change his residence or place of business, the reasonable expenses( if any) incidental to such change; and sixthly, the damage( if any) bona fide resulting from diminution of the profits of the land between the time of the publication of the declaration under Section 6 and the time of the Collector's taking possession of the land."
Section 23 of the Act, 1894 provides the provisions in order to determine the compensation to award a person whose land has been acquired and the scope of the said section is that a Court must ensure that public funds are judiciously and correctly applied even in matters of the grant of compensation, that the Court has to also take into account the fact that where an agriculturist is permanently losing his lands as long as the quantum of compensation appears to be fair and reasonable having regard to the accepted principles and norms, that it is inadvisable and improper that the State challenges those decisions because the claimants are hardly in a position to contest litigations before the High Court but more importantly because the compensation given to them gets unnecessarily, abnormally delayed. (See The Spl. Land Acquisition Officer v. Tukkaredely, AIR 1996 Kant. 26 at 33).
An assessment to the compensation payable for land acquired must take into court several factors, including the nature of the land, its present use and its capacity for a higher potential, its precise location in relation to adjoining land, the use to which neighbouring land has been put and the impact of such use on the land acquired, and so on. It seems that having regard to all those factors the rate of compensation, which has suggested itself to us is what should be decreed. (See Adusumilli Gopal Krishna v. Special Deputy Collecotor, AIR 1980 SC 1870 at 1871).
The method adopted by the Land Acquisition Officer for determining compensation payable for extinction of the interest of the holder of the land and of the building separately was unwarranted. In determining compensation payable in respect of land with buildings compensation cannot be determined by ascertaining the value of the land and the break-up value of the building separately. The land and the building constitute one unit, and the value of the entire must be determined with all its advantages and its potentialities.
Under Section 23 of the Land Acquisition Act compensation has to be determined by taking into consideration the market value of the land at the date of the publication of the notification under Section 4(1) and the damage, if any, sustained by the persons interested under any of the heads second to six in Section 23(1) of the Land Acquisition Act.
In the case of Hindustan Oil Co. Ltd. v. Special Duty Collector (Land Acquisition), (1990) 1 SCR 59 Hon'ble Apex Court held that cumulative effect of all the facts and circumstances should be taken into consideration in arriving at a reasonable and fair market value. (See Periyar and Pareekanni Rubbers Ltd. V. State of Kerala, AIR 1990 SC 2192 ).
It is true that compensation for compulsory acquisition, as governed by Section 23 of the Act gives high priority to the market value of the land at the date of the publication of the notification under Section 4, sub-section (1).
But what is market value ? It is a common place of this branch of jurisprudence that the main criterion is what a willing purchaser would pay a willing vendor. Ordinarily a party will be entitled to get the amount that he actually and willingly paid for a particular property, provided the transaction be bona fide and entered into with due regard to the prevalent market conditions and is proximate in time to the relevant date under Section 23 of the Act.
Once it is held as it inevitably must be that the solatium provided for under Section 23(2) of the Act forms an integral and statutory part of the compensation awarded to a landowner, then from the plain terms of Section 28 of the Act, it would be evident that the interest is payable on the compensation awarded and not merely on the market value of the land. Indeed the language of Section 28 does not even remotely refer to market value along and in terms talks of compensation or the sum equivalent thereto. The interest awardable under Section 28 therefore would include within its ambit both the market value and the statutory solatium. It would be thus evident that the provisions of Section 28 in terms warrant and authorize the grant of interest on solatium as well. (See Sunder v. Union of India, AIR 2001 SC 3515 at 3524 and State of Haryana v. Smt. Kailashwati, AIR 1980 P & H 117 and Union of India v. Bal Ram, AIR 2004 SC 3981).
Now reverting to the facts of the present case , from the perusal of the material on record and on the basis of arguments advanced by learned counsel for the parties , the position which emerge out that land situates on the same vicinity/ area has been sold out by way of registered sale-deed recorded as paper no. Ga-56 at the rate of Rs. 5.13 per sq. ft. having area of one bigha and one biswa cited as exemplar by the appellant and after taking into consideration the said documents , the Tribunal had awarded Rs. 4.10 per sq. ft as compensation to the appellant after making 20% deduction on the ground that the land which situate in the same vicinity/ area sold at the rate of Rs. 5.13 per sq ft. by way of registered sale deed is the small area whereas the acquired land of the appellant is large in area. The said action on the part of the Tribunal is contrary to law as laid down by Hon'ble the Apex Court in the case of Thakarsibhai Devjibhai (supra) , the relevant portion of the judgment is quoted as under:-
" After accepting this award Ex. 16 as the foundation, while fixing the compensation, it fell into error when it reduced the compensation by 25%. The reason for this doing so by the High Court is reproduced below :
'Therefore, if award Exh. 16 is to be taken as basis for the purpose of determination of the market value of the acquired lands in the present case, some deduction will have to be made. At the same time, because of distance between the village site and the acquired lands, which was more than the distance between the village site and acquired lands of award Exh. 16, some deduction shall also have to be made. In our opinion, if the deduction of large area and small area coupled with further deduction for distance is made in the present case, then it would be reasonable to deduct 25% from the market price arrived at in respect of the acquired lands of award Exh. 16."
As we have said above the High Court fell into error by reducing the quantum of compensation on this basis. The reduction has been made for two reasons, one that the present acquisition is of larger area and the second the distance between the land under acquisition and Ex. 16 is about 5 kms. With reference to question of acquisition being of a larger area, the error is, when we scan we find for the acquisition of each land owner, It could not be said that the acquisition is of a large area. Largeness is merely when each land holders land is clubbed together then the area becomes large. Each landowners holdings are of small area. Even otherwise visioning in the line with submission for the State we find Ex. 16 is about two hectares of land which cannot be said to be of small piece of land. So far the other question of distance between the two classes of lands, that by itself cannot derogate the claim of the claimant unless there are some such other materials to show that quality and potentiality of such land is inferior. However, distance between the land under Ex. 16 and the present land even if they are 5 kms. apart would not be relevant, the relevancy could be, their distances from the Viramgam town. We find, as per map produced by the State the present acquired land is about 3 kms. away from it, while the land under Ex. 16 is about two kilometers away from it. This difference is not such to lead to reduce the rate of compensation, specially on the facts of this case. In the present case, as we have recorded above, it has been found that the quality including potentiality of land between Exh. 16 and the present one are similar. No evidence has been led on behalf of the State to find difference between the two. In view of this, the inference drawn by the High Court for reducing the compensation by Rs. 10/- per sq. mtr. cannot be sustained."
For the foregoing reasons, the impugned judgment and award passed by the Tribunal thereby awarding Rs. 4.10 instead of Rs. 5.13 is contrary to law , liable to be set aside.
No other point has been pressed or argued by learned counsel for the appellant in the matter in question.
Accordingly , the judgment and award dated 17.10.1997 passed in Misc Case No. 311 of 1989 [ Mohd. Rafique alias Achchan ( now deceased) substituted by his legal heirs Vs. State of U.P. and another] in reference under Section 18 of the Act is modified to the extent that instead of Rs.4.10 per sq. ft, the respondents shall give compensation to the appellant at the rate of Rs. 5.13 per sq ft. in respect to the land recorded as Khasra No. 187 in the revenue record having area 4 bigha and 13 bishwa situate in village Ujariyaon Pargana Tehsil and District Lucknow acquired under the Scheme known as Sharda Sahayak Pariyojna.
With the above observation, the appeal is party allowed.
Order Date :- 26.2.2014 dk/