Wing Commander P.D. Bali vs State Of U.P. &Others;
2013 Latest Caselaw 7450 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 

 
Court No.32
 

 
Judgment reserved on 22.11.2013
 
Judgment delivered on 13.12.2013
 

 
First Appeal No.423 of 2008
 
Wing Commander P.D. Bali (since deceased) 
 
through his legal heir Shardendu Bali
 
v.
 
State of U.P. & Ors.
 

 
Hon. Sunil Ambwani, J.

Hon. Bharat Bhushan, J.

1. We have heard Shri K.K. Arora, learned counsel appearing for the appellant. Shri Ashwani Kumar Mishra assisted by Shri Vrindavan Misra appears for the Ghaziabad Development Authority-respondent no.3. Learned Standing Counsel appears for the State respondents.

2. This appeal under Section 54 of the Land Acquisition Act arises out of judgment and award dated 16.1.2001 passed by the 14th Addl. District Judge, Ghaziabad in Land Acquisition Reference Case No.624 of 1997, Wing Commander P.D. Bali v. State & Ors., whereby the claim of claimant appellant was allowed in part only in the reference made by him against the award of Special Land Acquisition Officer, Ghaziabad.

3. The land in Khasra No.437 area 3 bigha 4 biswa (9680 sq. mtrs.) in Village Dasana Distt. Ghaziabad was acquired by the State Government under the Land Acquisition Act, 1895 (the Act) included in the total acquired area of 146 bigha 17 biswa and 19 biswansis vide notification under Section 4/17 of the Act dated 18.8.1988 for which the notification under Section 6/17 was published on 3.10.1988. The possession of the land was taken on 14.12.1988. The award under Section 23 of the Land Acquisition Act was declared on 7.12.1990. A supplementary award for plot no.437 area 3 bigha 4 biswa, which is subject matter of this appeal was declared on 10.8.1997 for the structures and trees standing on the plot for which no assessment was made and compensation thereof was not paid.

4. In the award dated 7.12.1990 the Special Land Acquisition Officer determined the compensation for Village Dasana at Rs.71.43 per sq. yard.

5. Late Wing Commander P.D. Wali applied for reference under Section 18 of the Act, which was registered as Land Acquisition Reference No.624 of 1997. The reference court by its judgment and decree dated 16.1.2001 enhanced the compensation for an amount to Rs.163 per sq. yard along with other statutory benefits namely 12% interest with effect from the date of notification under Section 4 (1) of the Act dated 16.8.1988 upto the date of delivery of possession on 14.12.1988; 30% solatium under section 23 (2) of the Act; 9% interest with effect from the date of delivery of possession on 14.12.1988 and thereafter at the rate of 15% per annum until the amount is deposited. The reference court also allowed compensation of Rs.6,54,921.71 for the construction namely two rooms, two hand pumps, one Samadhi and the price of the trees, on the land along with 15% interest with directions that any amount paid shall be adjusted from the amount awarded.

6. The Ghaziabad Development Authority has preferred this appeal on the grounds namely that the compensation on square yard basis by reference court of the agricultural land is contrary to the law laid down by Hon'ble Supreme Court as well as by this Court; the reliance of sale exemplars of very small area to justify enhancement was not legal. In respect of very large area such exemplars should have been ignored; the land was admittedly used for agricultural by growing fruits, trees and plants and therefore the determination of compensation on square yard basis was erroneous; the land is situate far away from the abadi area. The findings of the reference court that petrol pump was situate near the land would not justify the compensation on the rates higher than the agricultural land; the market value should have been determined on the basis of the use of the land. The Ghaziabad Development Authority has also questioned the award in respect of construction and trees on the ground that they have been valued on higher side. The land was not developed and that age of the trees in awarding compensation was not considered.

7. The land owner has also filed First Appeal No.423 of 2008 against the judgment and award dated 16.1.2001 passed in reference under Section 18 of the Act, which is connected with this appeal filed by the Ghaziabad Development Authority. So far as the issue relating to determination of the rate of compensation in respect of the land is concerned, the matter came up for consideration in respect of same notification in First Appeal No.395 of 2000 and other connected appeals in Ghaziabad Development Authority v. Chandra Bhan & Ors. A Division Bench of this Court deciding the appeal on 1st April, 2008 by a judgment reported in 2008 (6) ADJ 42 (DB) considered all the grounds taken by the Ghaziabad Development Authority. Allowing all the appeals the High Court held that the judgments/ awards of the Court of reference impugned in this appeal are not sustainable and are liable to be set aside. All the appeals and cross-objections filed by the claimants were dismissed. The Division Bench held that single notification was issued for three villages namely Village Harsaon for which the compensation was determined by the Special Land Acquisition Officer in its award dated 7.12.1990 at the rate of Rs.100/- per sq. yard; for Village Sadarpur at the rate of Rs.63.77 per sq. yard and for Village Dasana at the rate of Rs.71.43 per sq. yard, apart from solatium, additional compensation and interest. In determining the market value of the land the price paid in sale or purchase of the land acquired within reasonable time from the date of acquisition of the land in question is the best piece of evidence. A notification or several notifications could not be made the guiding factor for fixation of uniform rate of compensation for three different villages. The authority could have applied the comparative sales method for valuation of land, if there was evidence of sales or awards of land, in preference to the other recognised methods of valuation of land such as 'capitalisation of net income method' or 'expert opinion method'; but if any of the factors such as location, shape, size, potentiality or tenure of one plot of acquired land widely differs from the other plot(s) of acquired land(s), then the market-value of each plot of land acquired has to be determined independently of the other(s) even if the entire land had been acquired pursuant to the same preliminary notification. If the notifications are different but the lands are uniform in nature, uniform price can be fixed. If the lands are not similar but brought under same notification, there can not be any embargo to fix different rates. The S.L.A.O. in the present case has correctly drawn the inference which the claimants have accepted without protest. The reference court, however, failed to appreciate such part and came to a wrong conclusion.

8. The Division Bench in Ghaziabad Development Authority v. Chandra Bhan & Ors. (Supra) further held that even independently foundation of the judgment of the Court of reference is baseless. Whereas S.L.A.O. fixed compensation of Rs. 100/- per square yard in respect of village Harsaon, the Court of reference relying upon two sale-deeds of small pieces of lands of such village, executed and/or registered after notification, enhanced compensation and after making deduction, and thereafter arrived at a uniform rate for all the three villages namely Harsaon, Sadar pur and Dasana. Relying upon Kummari Veeraiah v. State of Andhra Pradesh, (1995) 4 SCC 136 it was held that it is common knowledge and experience that the proposal for acquisition takes long time for arriving at a decision. In the meantime, it would be an open card and known to everyone, and thus it is not uncommon to have sale deeds executed and registered in the interregnum so as to boost the value of the acquired lands. The compensation in the exemplars of Shri Ram Das at Rs.112/- per sq. yard for which evidence was led in appeal also did not support the entitlement of Rs.163 per sq. yard. The Division Bench further relied on Ashwani Kumar Dhingra v. State of Punjab, AIR 1992 SC 974; Land Acquisition Officer v. Shivabai & Ors., AIR 1997 SC 2642 and held that person cannot approbate and reprobate in the same proceedings. A claimant receiving compensation under protest and who makes application under Section 18 (1) alone is entitled to seek reference. The offer made by SLAO was accepted by most of the claimants without protest. Taking into consideration the words used in Section 18 the Division Bench found that the persons, who has accepted the award without protest were bound by the compensation offerred by SLAO. The compensation was thus pegged for all the three villages for agricultural land at the rate of which award was made by SLAO. In respect of Village Dasana the Division Bench finalised the compensation at Rs.71.43 per sq. yard.

9. It is submitted by Shri K.K. Arora that the land of the claimant appellant, which was subject matter of acquisition was highly potential and was situate within the territorial limit of Nagar Nigam, Ghaziabad. It was highly developed, when it was acquired. The land adjoins is residential colony of Ghaziabad Development Authority and hence the computation of the market value of the land at Rs.163/- per sq. yard is not correct. The award has been given on much lower side than the amount claimed by the appellant in reference. All the villages Harsaon, Dasna and Sadarpur are adjacent to each other and are on the main road at the distance of 1 km. from the Ghaziabad. The land was acquired for residential purposes. Even on the date of acquisition it had high potential. Consequently the compensation should have been awarded after considering the relevant material.

10. Shri K.K. Arora submits that the market value of the land in dispute is Rs.3000/- per sq. yard and even circle rate of the area was higher than the rate of compensation awarded. The claimant appellant had raised certain constructions and was also running dispensary. He had grown 7500 eucalyptus trees thereon. Considering the nature of constructions, the running dispensary and number of trees, the compensation is highly inadequate. The appellant had filed certified copies of the land records as well as sale deeds dated 22.2.1988 and 23.7.1988 to establish that the rate of compensation was much higher than what was awarded by the reference court at Rs.163/- per sq. yard. The reference court ignored the exemplars of the same period.

11. On the question of award of compensation on construction and trees, it is submitted by Shri K.K. Arora that the appellant had installed water pumps with the boring, as many as 7500 eucalyptus trees, which the Court has ignored. The statement of Wing Commander P.D. Bali as PW-1 and statement of Shri Rich Pal son of Shri Harbans Singh as PW-2 as witness to the extent of construction and number of trees was ignored. Wing Commander P.D. Bali, PW-1 was not cross-examined on statement of the number of trees. There was no other independent evidence with regard to number of trees and thus the judgment and decree of reference is bad in law. He further submits that all the benefits of law as contemplated under Section 23 (1-A), 23 (2) and 28 of the Land Acquisition Act has not been given in view of Jainul Islam's case, (1998) 2 SCC 467. The award consequently needs to be modified fixing market value of the land at Rs.300/- per sq. yard and the number of trees to be counted at 7500 for valuation.

12. We have gone through the original record and statement of Shri P.D. Bali and Shri Rich Pal as PW-1 and PW-2 respectively. In respect of constructions Shri P.D. Bali did not give any details, which could have controverted the extent of constructions given in the joint inspection report. He has further stated in his statement that the valuation of trees has been wrongly calculated in as much as there were 7500 trees of eucalyptus and 5 fruit bearing trees at the time of acquisition. The values of these trees were not less than Rs.23-24 lacs and the value of two rooms and warranda was at Rs.1.5 lacs. The tube well was valued at Rs.45,000/-, boundary wall at Rs.80,000/-and two hand pumps and one tube well boring at Rs.1,10,000/-.

13. Shri P.D. Bali was cross-examined. In his cross-examination he stated that he had filed objections before the Special Land Acquisition Officer on 11.12.1988. He had filed objections personally. In his objection he has stated that his land should not be acquired. He had given entire property in donation to Manav Mangal Dharmarth Ashram Trust in the year 1982, which had filed its annual returns including this property. The entire income from disposing trees was deposited in the trust. In the year 1993 he filed writ petition against the acquisition in the High Court. He does not remember whether he had stated anything about filing objections before the Collector in respect of compensation in the writ petition. He proved the objections paper no.7/22, 7/26 dated 12.4.1993, which bears his signatures.

14. Shri Rick Pal, PW-2 stated that he had his land behind the subject land. There were about 7500 trees of eucalyptus and 5 fruit bearing trees; two taps, one tube well, a boundary wall, a room for tube well, two rooms and warandah and one Samadhi. The value of the trees was more than Rs.20-25 lacs and the value of two rooms and tube well and haus was about Rs.2 lacs. The valuation of boring and hand pump was about Rs.1.25 lacs and boundary wall at Rs.1 lac. The Collector had not awarded entire compensation based on the valuation. He had also filed Reference No.358 of 1992 in which value of his land was determined at Rs.163 per sq. yard. His land is 1/2 km. from the road, whereas the plaintiff's land was adjacent to the road. The plaintiff's land was much better land and was more useful with better capacity and was more than Rs.2000/- per sq. yard.

15. In the cross-examination Shri Rich Pal stated that as soon as the award was made, they had filed their objections. All the villagers must have known to the award. He knows Shri Bali for 15 to 16 years. He had given his land to Shri Bali, who lives in Ghaziabad on 18 to 19 years ago. Shri Bali lives in Ghaziabad. He visited his land and at the time of proceedings of award he used to visit his land. The boundary enclosed the entire agricultural land. He cannot give length of the boundary. The agricultural field of Shri Bali was in the shape of square. There were two course and the boundary wall was about 5-6 feet in height, which was raised 15 to 16 years ago. Eucalyptus trees in the land of Shri Bali were not planted by him. Shri Bali had planted these trees after he had purchased them. The kotharies were occupied by person. The temple was constructed by Shri P.D. Bali, which was not trust property. He does not know whether there was any stay order given in the reference in his favour.

16. We do not find substance in the contention of Shri K.K. Arora about the number of trees. The SLAO and the Reference Court relied upon joint inspection report dated 16.3.1993 of the Naib Tehsildar and the Amin of Ghaziabad Development Authority, who had found 200 trees of eucalyptus aged 12 years with circumference of 3' 6", 100 trees of eucalyptus aged 8 years with circumference of 7 inches and 1600 trees aged 7 years. Apart from this there were two trees of Adu, one tree of Neem, one tree of Amrud and one tree of Kattha. In the supplementary award also only 1900 trees were mentioned.

17. We do not find any error in the findings recorded by the Reference Court that in the absence of date of purchase of plants, the number of trees, which survived after plantation and any independent witness, who could have proved the number of trees and controvert the joint inspection report, the ground that number of trees were 7500 could not be believed.

18. The argument raised by Shri K.K. Arora that in the absence of cross-examination on the question of number of trees, the statement of Shri P.D. Bali supported by the statement of Rich Pal should have been believed is not acceptable. Shri P.D. Bali did not give details of the purchase of plants, the plants and plantation, the number of trees, which survived, the number of trees, which he may have cut and sold or any other report of any revenue officer or inspection report to contradict the joint inspection report dated 16.3.1993 of Naib Tehsildar, Amin of Ghaziabad Development Authority, in the absence of any positive and admissible and relevant evidence, the finding on the number of trees cannot be assailed. Even otherwise we find that it is difficult to believe that there were 7500 trees on the land measuring 9680 sq. mtrs., which was surrounded by boundary wall, two rooms, warandah, tube well, small temples etc. We, therefore, do not find any good ground to interfere and confirm the findings of the Reference Court regarding number of trees.

19. Shri K.K. Arora then submitted that in the operative portion of the judgment and decree the Reference Court has failed to award solatium on the compensation for constructions, structures and trees. He submits that under Section 23 (2) solatium is to be awarded on the compensation for land, which includes within its definition all structures and trees.

20. Shri K.K. Arora has relied on para 8 of the judgment of Supreme Court in Chaturbhuj Pande & Ors. v. Collector, Raigarh, AIR 1969 SC 255, which reads as follows:-

"The High Court in our opinion was wrong in disallowing the statutory allowance permitted by s. 23(2) over the value of the trees. The High Court erred in thinking that the value of the trees falls under the secondly clause of s. 23 (1). The first clause of s. 23 provides for determining the market value of the land acquired. Section 3(a) prescribes that "the expression 'land' includes benefits to arise out of land, and things attached to the earth or permanently fastened to anything attached to the earth"' Therefore the trees that were standing in the land were a component part of the land acquired. The High Court failed to notice that what was acquired are not the trees but the land as such. The value of the trees was ascertained only for the purpose of fixing the market value of the land. On the value of the land as determined, the court was bound to allow the 15% allowance provided by s. 23(2) of the Act."

21. Shri K.K. Arora has also relied on the judgment of Supreme Court in Sunder v. Union of India, JT 2001 (8) SC 130 in support of his submission that solatium under Section 23 (2) of the Act is also payable on the compensation for building, structures and trees.

22. Shri Ashwani Kumar Misra has not been able to substantiate objections to the award on solatium on the compensation of constructions, structure and trees.

23. By a separate judgment delivered today we have allowed the appeal filed by Ghaziabad Development Authority in respect of valuation of land following the judgment in Ghaziabad Development Authority v. Chandra Bhan & Ors., 2008 (6) ADJ 42 (DB) in which this Court while allowing the first appeal filed by Ghaziabad Development Authority in respect of land in same villages namely Harsaon, Sadarpur and Dasana set aside the award in reference and restore the award of the Special Land Acquisition Officer awarding Rs.71.43 per sq. yard for the land in Village Dasana. In the same judgment we have also observed that for the reasons given in this judgment the claimant will be entitled to solatium on the compensation for land, building, structures and trees.

24. The appeal is partly allowed to the effect that the judgment and decree in reference allowing solatium only on the compensation award for land is modified to the effect that solatium will be awarded including the compensation for land determined at Rs.71.46 per sq. mtr. and entire compensation worked out in the order of reference of the building, structure and trees. Any amount paid to the claimant will be adjusted from the amount to be paid for the value of the land at Rs.71.46 per sq. mtr. and the compensation at Rs.6,54,921.71 for constructions, structures and trees on which solatium as well as interest will be payable in accordance with the order in reference dated 16.1.2001. The decree will be drawn up accordingly. There will be no order as to costs.

Dt.13.12.2013

SP/