Allahabad High Court
Krishi Utpadan Mandi Samiti vs Smt.Kailashwati & Others on 21 December, 2016
Bench: Surya Prakash Kesarwani
HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
(Judgment reserved on 09.12.2016)
(Judgment delivered on 21.12.2016)
Court No. - 25
1-Case :- FIRST APPEAL No. - 341 of 1996
Appellant :- Krishi Utpadan Mandi Samiti
Respondent :- Smt.Kailashwati & Others
Counsel for Appellant :- B.D.Mandhyan,Satish Mandhyan
Counsel for Respondent :- M.D.Singh,N.K. Sharma,N.S. Chaudhary,V.K.S. Chaudhary,V.K.Singh,V.S. Chaudhary
2-Case :- FIRST APPEAL No. - 365 of 1996
Appellant :- Krishi Utpadan Mandi Samiti
Respondent :- Shyam Singh & Another
Counsel for Appellant :- B.D.Mandhyan,Satish Mandhayan
Counsel for Respondent :- S.C.,M.D.Singh,S.K.Singh,V.K.S.Chaudhary,V.K.Singh,V.S. Chaudhary
3-Case :- FIRST APPEAL No. - 366 of 1996
Appellant :- Krishi Utpadan Mandi Samiti
Respondent :- Shyam Singh & Others
Counsel for Appellant :- B.D.Mandhyan,Satish Mandhayan
Counsel for Respondent :- S.C.,M.D.Singh,S.K.Singh,V.K.S.Chaudhary,V.K.Singh,V.S. Chaudhary
4-Case :- FIRST APPEAL No. - 367 of 1996
Appellant :- Krishi Utpadan Mandi Samiti
Respondent :- Shyam Singh & Another
Counsel for Appellant :- B.D.Mandhyan,Satish Mandhayan
Counsel for Respondent :- S.C.,M.D.Singh,S.K.Singh,V.K.S.Chaudhary,V.K.Singh,V.S. Chaudhary
5-Case :- FIRST APPEAL No. - 368 of 1996
Appellant :- Krishi Utpadan Mandi Samiti Muzaffarnagar
Respondent :- Om Prakash
Counsel for Appellant :- B.D.Mandhyan,Satish Mandhayan
Counsel for Respondent :- S.C.,M.D.Singh,S.K.Singh,V.K.S.Chaudhary,V.K.Singh
6-Case :- FIRST APPEAL No. - 369 of 1996
Appellant :- Krishi Utpadan Mandi Samiti Muzaffarnagar
Respondent :- Rajendra Kumar & Others
Counsel for Appellant :- B.D.Mandhyan,Satish Mandhayan
Counsel for Respondent :- S.C.,M.D.Singh,S.K.Singh,V.K.S.Chaudhary,V.K.Singh,V.S. Chaudhary
7-Case :- FIRST APPEAL No. - 372 of 1996
Appellant :- Krishi Utpadan Mandi Samiti Muzaffarnagar
Respondent :- Mithan Lal
Counsel for Appellant :- B.D.Mandhyan,S.Mandhayan
Counsel for Respondent :- S.C.,M.D.Singh,S.K.Singh,V.K.S.Chaudhary,V.K.Singh
8-Case :- FIRST APPEAL No. - 371 of 1996
Appellant :- Krishi Utpadan Mandi Samiti Muzaffarnagar
Respondent :- Karan Singh & Another
Counsel for Appellant :- B.D.Mandhyan,S.Mandhayan
Counsel for Respondent :- S.C.,M.D.Singh,S.K.Singh,V.K.S.Chaudhary,V.K.Singh,V.S. Chaudhary
Hon'ble Surya Prakash Kesarwani,J.
1. This bunch of First Appeals was heard at length on 8.12.2016 and 9.12.2016. Arguments of the learned counsel for the appellants were noted in the order dated 9.12.2016 as under:-
"Heard Sri M.C. Chaturvedi, learned senior advocate assisted by Sri Madhav Tripathi, learned counsel for the appellant.
No one appears on behalf of the claimant-respondent even in the revised call.
Learned senior advocate refers to various paragraphs of the impugned judgment as well as the award of the S.L.A.O. and submits as under:-
(i) Reference court also found the sale-deed instance at serial no.9 before the S.L.A.O. to be the correct exemplar for determination of market value of the acquired land of village Kukra by the notification in question and yet enhanced the compensation to Rs.27,000/- per bigha without pointing out any discrepancy in the determination of market value by the S.L.A.O..
(ii) Reference court has committed a manifest error of law and facts to enhance the compensation more than twice without there being any relevant evidence before it for determining the market value of acquired land at Rs.27,000/- per bigha.
(iii) The reference court has erred in relying upon the statement of P.W. 2, namely, Sri Indrajeet Singh, who was merely a power of attorney holder of one of the claimants.
(iv) The reference court awarded additional compensation under Section 23(1-A) of the Land Acquisition Act, 1894 despite the fact that the acquisition was made by notification under Section 4 of the Act, published on 29.11.1975 and the award was made by the S.L.A.O. on 25.2.1977, which dates are much prior to the amendment by Act 68 of 1984. He relied upon the decision of Constitution Bench of Hon'ble Supreme Court in the case of Union of India and another vs. Raghubir Singh (dead) by LRs. etc., (1989) 2 SCC 754 and Major Pakhar Singh Atwal and others Vs. State of Punjab and others, AIR (1995) SC 2185 (para 9).
(v) The reference court has committed a manifest error of law in awarding solatium @ 30% instead of 15%, despite the fact that the acquisition was made and the award was declared by the S.L.A.O. much prior to the amending Act 68 of 1984 and as such the provisions were not applicable to award solatium at the enhanced rate of 30%.
(vi) While determining the compensation on the basis of various sale-deed instances, the reference court has not considered the smallness of the area sold under the sale-deeds and the largeness of area under the acquisition and as such determination of the market value of the acquired land @ Rs.27,000/- per bigha is wholly erroneous and most excessive.
Judgment reserved."
2. I have carefully considered the submissions of the learned counsel for the appellants. No one is present on behalf of the claimants-respondents.
3. Perusal of the facts of the case and the submissions made by learned counsel for the appellants give rise to the following questions:-
(i) Whether under the facts and circumstances of the case, the market value determined by the reference court @ Rs.27,000/- per bigha with respect to the acquired land of village Kukra, is excessive?
(ii) Whether under the facts and circumstances of the case, the reference court is justified to award additional compensation under Section 23(1-A) of the Act?
(iii) Whether under the facts and circumstances of the case, the reference court has committed error of law in awarding solatium @ 30% instead of 15%?
Facts:-
4. Briefly stated, facts of the present case are that a notification under Section 4(1) of the Act was published on 29.11.1975 to acquire 102 bighas 12 biswas equivalent to 52 acres land of village Kukra, Pargana and Tehsil and District Muzaffarnagar. However, finally, only 44.684 acres were acquired. Notification under Section 6 of the Act was published on 29.11.1975. The S.L.A.O. made the award on 25.2.1977 offering compensation @ Rs.11,671.05 per bigha for ''Tod' quality land and Rs.7565.79 per bigha for ''Khaki' quality land. At the instances of tenure holders, several references were made under Section 18 of the Act, which were decided by the impugned judgments awarding compensation @ Rs.27,000 per bigha with 30% solatium, interest and 12% additional amount on the amount of compensation from the date of notification under Section 4 of the Act till the date of possession for the acquired land measuring 32-18-15 bighas. Aggrieved with the aforesaid judgment of the reference court dated 12.8.1996, the Krishi Utapadan Mandi Samiti has filed the present First Appeals. It is important to note that from the cases listed today in the cause list, connected with the leading First Appeal No.341 of 1996, it appears that the First Appeals filed by the tenure holders were dismissed for non-prosecution on different dates and the only undecided First Appeal of a tenure holder connected with this leading First Appeal has also been dismissed on 09.12.2016 for non-prosecution.
Discussion and Findings:-
Question No.(i)- Whether under the facts and circumstances of the case, the market value determined by the reference court @ Rs.27,000/- per bigha with respect to the acquired land of village Kukra, is excessive?
5. Alongwith the paper book filed in leading First Appeal No.341 of 1996, the appellant, Krishi Utapadan Mandi Samiti has filed several documents including the award of the S.L.A.O. dated 25.2.1977. Perusal of the award of the S.L.A.O. shows that before him, some of the tenure holders have claimed compensation from Rs.30/- to Rs.40/- per square yard, while some tenure-holders claimed compensation @ Rs.60,000/- to Rs.70,000/- per bigha. The S.L.A.O. in the award observed that there were 29 sale-deeds relating to sale of lands of village in question, but he picked up a sale-deed at Sl.No.9 of the list for sale of land of plot nos.390 and 391 dated 3.5.1975 measuring 1 bigha and 1 biswa for Rs.10,000/- and on that basis, offered compensation at the aforesaid rates to the tenure holders.
6. Before the reference court, the tenure holders filed number of documentary evidences and also laid oral evidences. The appellant, Krishi Utapadan Mandi Samiti had not laid any documentary evidence before the reference court.
7. In paragraph 8 of the impugned judgment, the reference court considered paper no.582/C-1, which is the spot inspection report dated 26.2.1976 made by the S.L.O. in presence of the occupants of the land of village Kukra and Yusufpur and his own staffs Ahalmad and Amin. Reference court quoted the spot inspection report of the S.L.O and made observations in paragraph 8 and 9 of the impugned judgment as under:-
"8. All these issues are inter-related to each other. On all these issues documentary and oral evidence have been adduced by both the parties in L.A. No.35/77. It is not disputed that the State of U.P. Had acquired the disputed land in an area of 161-10-0 Bighas Pukhta lying in villages Kukra, Yusufpur and Sarwat for the purpose of constructing of building, godowns, shops, offices, roads, open sheds for auction purposes for Krishi Utpadan Mandi Samiti, Muzaffarnagar. First Notification No.568-388/VIII M.Nagar 74-75 u/s 4 of L.A. Act was issued on 14.3.75 and was published in the U.P. Gazette dated 29.2.1975 at page 1883. Paper No.582/C-1 is the spot inspection report dated 26.02.1976 made by S.L.O. in presence of the occupants of the land of village Kukra and Yusufpur and his own staffs Ahalmad and Amin. In the spot in inspection report, the S.L.O. has written back, "The land being acquired is located within the limits of Muzaffarnagar Municipality. It has capacity of residential and other (business and Industrial) complexes, though it is being cultivated so far. At this place and in east of Rajwaha is only that land of village Yusufpur, which is being acquired. In west of Rajwaha there is Abadi in entire area of village Yusufpur. Other land of village Kukra being acquired is in east and adjacent to land of village Yusufpur which is being acquired. Land of both the villages are of the same kind and their circle rate are similar." It had also be written in the spot inspection report by the S.L.O. Himself that, "Though land of Yusufpur and Kukra are being cultivated but the land is situated within Municipal limit of Muzaffarnagar and in its west and south, abadi had been constructed and in north across the road, there are godowns of F.C.I. This land though under cultivation, have capacity of residential and (business and industrial) complexes. Vide paper no.573 and page no.145, steps to bring this land within the Municipal limits, had started much before 1946 and finally on 17-8-46 when this land and the land towards south and north were included in Municipal limit and continuing as such since then. Ext.80 is the Notification of July 23, 1947 thereby the earlier notification no.2913/XI-441-46 was confirmed by the then Government of U.P. That an area no.3 which was in between the south east and eastern boundary of the New Mandi area and the Kachcha circular road starting from Sandhawli Railway Level crossing to its junction at the Bhopa Road was included. Since then, the entire disputed land is within the Municipal limits Road of Muzaffarnagar.
9. In the above statement, it has been further written that towards south the circular road after passing through the abadi of village Kukra and village Ilmaspur, meets M.Nagar-Jansath-Miranpur-Bijnor highway after crossing it again meets G.T. Road. This highway reached towards west after passing through the abadi of village Ilmaspur and Muzaffarnagar city and by passing this southern side there is civil courts campus and towards other side there is a Shiv Chowk, which is highly connected and main marked of city M.Nagar."
8. The situation of the acquired land, as found by the reference court; is within municipal limit of Muzaffarnagar, on its west and south abadi have been constructed and in north across the road, there are go-downs of F.C.I. The reference court referred to several developments in the area prior to acquisition, including some important roads, situation of Civil Court campus on the southern side and Shiv Chowk, which is highly connected with main market of city Muzaffarnagar. The afore-noted findings of the fact recorded by reference court with regard to the location of the acquired land so as to judge its potentiality, has not been disputed by the appellants before this Court as also evident from the arguments noted above.
9. The reference court discussed at length the question of quantum of compensation in paragraphs 29 to 40 (in about 40 pages). It took into consideration the location of the acquired land, number of sale-deeds instances filed in evidences including the sale-deeds selected by the S.L.A.O. and oral evidences led by the parties. It also noted conduct of the appellants and the State Government to suppress the facts and evidences. It took into consideration the Anusuchi no.1, which consists of 10 sale-deeds filed by the tenure holders, Anusuchi No.2, which consist of 29 sale-deeds including the sale-deeds relied by the S.L.A.O. dated 3.5.1975 of plot no.390 and 391. It also took note of the fact that the S.L.A.O. has overlooked its own spot inspection report and relevant sale-deed instances of village Kukra. The reference court also noted that the S.L.A.O. has not considered the existence of educational institutions up to post-graduation, technical institutions imparting diploma in all branches of engineering, institutions of girls and boys education up to intermediate standard, existence of hospitals and maternity hospitals, Montessori schools, head post-office, telegraph office and telephone exchange, nearby highways both in North and South, railway stations hardly at a distance of one kilo-meter, availability of energy and water, residential colonies in East, namely, Gandhinagar and of village in question i.e. village Kukra abadi of Ilmaspur in South, existence of factories in South and North within a radius of 100 to 500 yards, existence of Central Government Warehousing, godowns and offices, residential colony adjacent to the acquired land, block office at a distance of about 100 yards, nursing training centre with its hostels by the side of block office, the roads connecting national highways and other highways. It allowed application paper no.605/C of the claimants in L.A.35/77 for summoning of the documents available on award no.1 of 75-76 of village Kukra and other documents available on award, after inviting objection from the State of U.P. and the Mandi Samiti, both of whom did not file any objection. It passed an order on the aforesaid application directing the State of U.P. and the Mandi Samiti to file copy of application with plan and papers submitted for acquisition, Inspection Report, objection, if any, filed by Mandi Samiti against the evidence by claimants, category-wise details of shops and godowns. The present appellant i.e. Mandi Samiti in its objection paper no.611/C shown its inability to file the summoned papers on the ground that it has no such papers. The reference court noted that the stand taken by the Mandi Samiti is belied by its own witness, D.W.1 Satyendra Pal Singh (paper no.628-A) etc. After discussing in depth, various evidences on record, the reference court observed in paras 32, 35, 36, 37 and 38 of the impugned judgment as under:-
"32.It is thus obvious than the S.L.A.O. has failed to consider the exemplars either filed by the claimants or summoned by him from Sub-Registry Office, Muzaffarnagar and it is strange that the S.L.A.O. has picked up only one sale-deed as an exemplars of village Kukra (Rural area), it is dated 05.12.74. This sale-deed is in respect of plot no.390/0-10-0 and 391/0-11-0 i.e. 1-2-0 and thereby the basis of assessment is quite against the principals and the law laid down by the Hon'ble Supreme Court and several other High Courts. Not only this the S.L.A.O. has however chosen only one exemplar which is a sale-deed with an area of one Bigha one Biswa. The land acquired was entirely irrigated from Rajwaha as admitted by S.L.A.O. in his own inspection report and also in the award while the only selected sale-deed in of two kinds of land 390 is irrigated and 391 is Khaki. Not only this the selected exemplar is of a land which lies at a distance of one K.M. from the acquired land while the exemplar of the acquired land itself and those of adjacent land were available but S.L.A.O. has failed to consider all these relevant facts and evidence related to that. The learned counsel on behalf of the claimants had rightly argued that the S.L.A.O. has committed an illegality and material irregularity in coming to the conclusion and giving reasoning in the award by overlooking the criteria and guidelines laid down by The Hon'ble Supreme Court and other several High Courts".
35.Learned counsel on behalf of U.P. State and Mandi Samiti has rightly argued that it is the bounding duty of the claimants to prove the adequate market price of the acquired land on the date of Notification U/s 4 of the L.A. Act. The learned counsel has also rightly argued that the tenure holder whose land has been acquired has a right to get compensation on the basis of market value on the date of notification u/s 4 of L.A. Act. It is the duty of the S.L.A.O. to ascertained the correct market value and it is also the duty of the parties to assists the court in ascertaining the correct market value and payment of compensation in accordance with law, but in spite of this State of U.P. And Mandi Samiti both have suppressed certain facts and has also with held material documentary evidence which was summoned by this court and in spite of the order of this court and further they have not adduced any evidence either documentary or oral except D.W.1 and the only exemplar which has been wrongly relied upon by the S.L.A.O. It was the duty of the State of U.P. And Mandi Samiti to rebut the overwhelming documentary and oral evidence adduced from the side of claimants before S.L.A.O. and particularly before this court. Now, I come to the law laid down by the Hon'ble Supreme Court and other Hon'ble High Courts about the criteria and guide lines for assessing the correct market value of the acquired land and further to assess the exemplars filed on record and oral evidence available on record. In the case of Tata Chemicals Bombay vs. Sadhu Singh son of Baljit and others, A.I.R. 1994 Allahabad P-66, it has been laid down that u/s 23 L.A. Act market value- potentiality of acquired land- proximity of Railway Station and high way- availability of water and energy for Industrial use, these facts shows that acquired land has potentiality for future development has to be taken into consideration in determining market value. It has also been held that, "prices mentioned in the exemplar sale-deeds- prevalent practice of under valuation for evading stamp duty etc.- court could not be justified in taking its judicial notice in absence of evidence, would not draw inference that actual price is more than mentioned in sale-deeds. The Hon'ble High Court at Allahabad has held in another case of State of U.P. vs. widow of Late L. Janki Dass, A.I.R. 1966 Allahabad P-273, agricultural land in Municipal area- acquisition of -its potential value as building site can be taken into account- compensation to be on its market value, where the land which was entered as agricultural land the revenue papers but was withing Municipal area of city of Meerut, in close proximity of the locality where residential houses and factories had been constructed was being acquired under the U.P. Land Acquisition (Rehabilitation of Refugee) Act (26 of 1948) it is true that the value of the land has to be calculated on the basis of its market value as on 01-9-39. Section 1 of the Act provides that the market value of the land acquired shall be either the market value on the date of the notification u/s 3 of the Act of the market value on 1st September, 1939 which ever might be less. Since the prices of land kept on rising after 1st September, 1939 the market value of the land acquired shall have to be fixed with reference to 1st September, 1939. It has also to be seen whether the land which was acquired could be treated as a potential building site on 1st September, 1939. Unless that was so, its value could not be calculated on that basis- held on facts that there could be no doubt that considering the situation of the land which was acquired and other relevant facts it could be regarded as a potential building site even on 1st September, 1939. The Hob'ble Delhi High Court also laid down the same proposition of law in the case of Mani Ram Sharma vs. Union of India, A.I.R. 1986 Delhi P-140 that L.A.Act Sec.23- assessing value for purposes of compensation that potentiality is the true element of value- it includes probabilities, possibility and prospects. The similar view has been laid down by the Hon'ble High Court of Rajasthan in the case of Kamla Devi vs. Border Security Force, Jodhpur and others, A.I.R. 1988 Rajasthan 205 that Sec.24 and 23 L.A. Act- acquisition of land- market value- potential value of land as building site has to be taken into consideration. The Hon'ble Kerala High Court has also laid down the similar law, in the case of T.J.Thankamany & others vs. Kerala State represented by District Collector, Alleppey, A.I.R. 1992 Kerala 80 that L.A. Act Sec.10, 23- acquisition- award- claim for enhanced compensation- acquired land situated in important locality and ideal for business as well as residential purposes- documents showing said land sold for consideration much higher than compensation awarded- commissioner's report and Mahazar also showing acquired land located in important area- claim for higher compensation is reasonable. The Hon'ble High Court of Gujrat in case of Lal Bhai Talsi Bhai Patel vs. Addl. Special L.A.O. in A.I.R. 1986 Gujrat P-24 has also similarly held that L.A.Act Sec.23- test for fixing market value of acquired land for payment of compensation- extent of area is not the real test- more important test is location of the land that holding similarly Hon'ble High Court of Punjab and Haryana in case of Bhagat Ram vs. State of Punjab and Haryana and others A.I.R. 1981 Punjab and Haryana P-163 that "where land acquired under the Act is within the Municipal limit of a particular town it is to be evaluated as urban property even if the property at the time of acquisition is used as agricultural property. In the instant case the Collector and the Tribunal had evaluated agricultural property acquired by the standards of agricultural property and not by the standard of Urban property. Thus, it was a patent error on the face of record and as such could be corrected in exercise on writ jurisdiction (In this case the Hon'ble High Court has followed A.I.R. 1964 S.C. P-477). Accordingly, the Hon'ble High Court at Allahabad in the case of U.P.State Industrial Development Corporation Ltd. vs. Umrao and others A.I.R. 1995 Allahabad P-379 has held that "L.A. Act Sect.23- compensation- land acquired though used for agriculture has potentiality of residential and commercial use- rate of compensation at Rs.40,000/- per acre increased to Rs.50,000/-. In the case of Administration General of West Bengal vs. Collector Varanasi, Hon'ble Supreme Court in A.I.R. 1988 S.C. P-943 has held that "L.A. Act Sec.23- Market value- determination- land with potentialities for urban use- prices fetched for lands similar to the acquired land with similar advantages and potentiality at or about time of preliminary notification constitute best evidence.
36. In the light of the above law laid down with regards to the guide lines for determining the market value of the acquired land, I now proceed to discuss the documentary evidence and sale deed exemplars filed on record of L.A. no.35/77. Ext. 108 is the sale deed dated 26.3.66 where in the land of V. Kukra was sold at Rs.29,687.49 per Bigha pucca at Gandhi Nagar which lies towards North east acrossing Nala in village Kukra itself which is at a distance of about 200 yards from the acquired land. Ext. 109 is another sale-deed dated 16.11.66 of village Kukra. The land was within the Municipal limit and the rate assessed in it was Rs.2240.98 per Bigha Pucca. Ext. 110 is another sale-deed dated 15.11.67 of the same village, lying within the Municipal limit and the land was sold at Rs.8,539.89 per Bigha Pucca. Ext. 111 is the sale-deed dated 27.7.67 of plot no.268 of the same village Kukra, whereby land was sold at the rate of Rs.2,727.89 per bigha pucca. Ext.112 the sale-deed dated 19.6.68 of the plot no.360 of the same village Kukra and the land was sold at Rs.12,000/- per Bigha Pucca. Ext.113 is another sale-deed dated 06.09.68 of plot no.307 of the same village Kukra and the land was sold @ Rs.13,333.33 per Bigha. Ext.115 and 116 are the sale-deeds dated 28.10.69 of plot no.420 (Rural) and 326 (Urban) purchased by warehousing corporation at the rate of Rs.16,499.99 per Bigha. Ext.120 is another sale-deed dated 19.11.70 of Urban area. This land lies towards south across the road of the acquired land. This land was sold at the rate of Rs.9,000/- per Bigha. Ext.121 is the sale-deed dated 08.01.71 whereby the land was sold at the rate of Rs.12,250/- per bigha. In the same day Ext.123 dated 06.10.71 where in the rate of land as shown is Rs.30,625/- per bigha. Ext.126 is a sale-deed dated 6-7-73 of the plot no. 383, where in the rate of land as shown is Rs. 18,000/- per bigha Ext.127 is a sale-deed dated 18-9-74 the rate of land as shown Rs. 19,600/- per bigha in the same way there are other sale-deeds Exts. 128 to 132 of V.Kukra.
37. The Claimants have also filed certified copies of sale-deeds of V.Yusuf Pur. They are Exts.133 to 150 on record. Ext.150 is a sale-deed dated 28-1-75 whereby the land lying within Municipal area of V.Yusufpur was sold @ Rs. 1,47,000/- per bigha. The claimants have also filed certified copies of sale-deeds of V.Kukra, Yusuf Pur and Muzaffarnagar and also of V. Ilmaspur and V. Sarwat. The certified copies of sale-deeds are Ext.153 to 217 on record of L.A. No.35/77 vide list of document Paper No.461-c out of these certified copies of sale-deeds I would like to consider and discuss the sale deeds executed within a period of 3 or 4 years of the date of acquisition as it has been held in the case of Gauri Shankar Misra & Others Vs. The Collector Varanasi A.I.R. 1964 Allahabad p-488, wherein it has been specifically laid down that sale-deeds within a period of 3 or 4 years of the date of acquisition should be treated as good, exemplars and the court cannot proceed on the assumption that the sale-deed produced in evidence are fictitious or collusive to provide the material to the appellants to have their claim to compensation. The court should however take into consideration the extent of land acquired and price of small pieces of land owned by the sale-deeds, in fixing compensation payable." Ext.155 in a certified copy of sale-deed 25-4-72 of plot no.345 of Village Kukra. Which later on has been acquired in this very acquisition in which sale-deed the rate of land as shown is Rs. 49,200/- per bigha. Ext. 165 is another copy of sale-deed dated 14-2-72 of V.Yusuf Pur Urban area, whereby the land was sold @ Rs. 20,718,81 Ext. 166 is another copy of sale-deed dated 22-7-74 of the same village, whereby the land was sold @ Rs. 1,15,150/-per bigha Ext.167 in another sale-deed dated 24-3-75 of the same village whereby the land was sold @ Rs. 2,30,999.99 per bigha. In order to assess the correct market price, I would like to consider the prevailing market rate of land of similar nature of other adjoining villages. Ext.177 is a copy of sale-deed dated 24-12-74 of village Muzaffarnagar. This land lies at a distance of about one K.M. on the Jansath road . This land was sold @ Rs. 96003.13 per bigha. Ext. 178 is another copy of sale-deed dated 29-5-75 whereby the land was sold at the rate of Rs. 1,17,000/- per bigha. Ext. 181 is another copy of sale-deed dated 11-11-75 of V. Muzaffarnagar of plot no. 1081 which is also near to the land acquired and this land was sold Rs. 22,500/- per bigha.Now I come to the other exemplars of village Ilmaspur Ext. 192 is the sale-deed dated 18-8-75 of village Ilmaspur whereby the land was sold @ Rs. 36,750/-per bigha. Ext. 193 is another copy of the sale-deed dated 16/10/75 of the same village whereby the land was purchased @ Rs. 49000/- per bigha. Now I come to another adjoining village Sarwat, Ext. 309 is a copy of sale dated 8-8-74 whereby the land of rural area was purchased @ Rs. 49000/- per bigha. Ext. 210,211 are also of the same rate, Ext. 212 is another sale-deed of the same year when the land was sold @ Rs. 61,250/- per bigha. The other exemplars certified copies of the sale-deed by Ext. 213, 214, and 217 are on record and the rate of land shown there in Rs. 49,000/- Ext. 215 is another copy of sale-deed dated 2-7-75 of the same village, wherein the land of rural area was purchased @ Rs. 1,10,250/-per bigha. Apart from the above overwhelming documentary evidence certified copies of sale-deeds of the same villages of the acquired land and that of adjoining villages the claimants have also filed certified copy of agreement of sale dated 14-5-75 for an area 16-7-0 bigha of V.Yusufpur adjacent to the land of Yusufpur acquired,it is for Rs. 5,72,000/-out of which Rs. 4,50,000/- had been paid the date of agreement and the rest was paid on the date of sale-deed executed on 20-4-77. The vendees in this agreement to sell the sale-deed were Voopar Karamchari Grah Nirman Sahkari Samiti Ltd. Muzaffarnagar and one of the parties to the agreement the secretary of samiti Shri Jado Parsad had been examined as P.W. 5 who had stated that the agreement was executed in his presence and the rate of the land was Rs. 34,984.60 per bigha. He stated further that he also had signed over the agreement to sell as a second party being secretary of the committee. This statement is at Paper No. 616 on the record of L.A. 35/77. The aforesaid exemplars, certified copies of sale-deeds and agreement deeds can be taken into consideration in order to assess the correct market value of the land even prior or post notification. As it has been held in the case of Chiman Lal Hargovind Das Vs. Vijay Singh Leela Dhar A.I.R. 1988 ...S.C.P. ..1652 whereby it has been laid down that "(5) even post notification instance can be taken into account(1) if they are very proximate, No.2 genuine and No.(3) the acquisition itself had not motivated the purchaser to pay higher price on Account of the resultant improvement in development prospects." The aforesaid certified copies of sale-deeds exemplars, the other land of the aforesaid same villages were purchased by Veopar Karamchari sang. Grain Chamber Vidya Sabha, Warehousing Corporation. Cooperative Housing society and Mujzaffarnagar cooperative Housing Society. These exemplars certified copies of sale deed are very proximate genuine and they cannot be said to that the purchaser was motivated to pay a high price because all these purchasers are of co-operate body of housing society or Veopar Karamchari, Housing Society. It is thus obvious that the claimants have filed several aforesaid certified copies of sale-deed exemplar. Which are in my opinion the most comparable instance of genuine instances on account of approximately of him. Situation for assessing the correct market value of the land acquired in this case. Apart from it S.L.A.O. has treated plot no.383 as khaki. Though the entire land acquired was irrigated one. The S.L.A.O. fixed Rs. 7.565.75 per Bigha rate of Khaki land (Unirrigated) and this plot was sold at Rs. 18,000/-per bigha. When calculated @ Irrigated area then its price comes to Rs. 33.740.48 per Bigha. This plot has also been acquired.
38. Ext.126 is the copy of sale-deed exemplar of plot no.383 this has been acquired by State of U.P. And this exemplar is more relevant for assessing the correct market value on the relevant date comes to Rs.33,740.48 per bigha of irrigated land and in the same way Ext.155 is another copy of sale deed exemplar whereby 345 was sold @ Rs. 49,200/- per bigha and this too has been acquired in this case. In the case of Manager Nursinga Rao Naidu Vs. The Revenue Divisional Officer, A.I.R. 1982 S.C.P.-63, whereby it has been laid down that , "there cannot be any doubt that the host evidence of the market value of the acquired land is afforded by transactions for sale in respect of the very acquired land, provided of course there is nothing to doubt the authenticity or the transactions." In the same way in the instant case the exemplar certified copy of sale deeds Ext. 126 and 155 are in respect of plot nos. 383 and 345 of V. Kukra. These plots are of the disputed lands. Which have been acquired by the State of U.P. For the purpose of construction of yard for auction sale shops, offices etc. for Mandi Samiti Muzaffarnagar. The market value shown in these transaction of sale are Rs. 49,200/- and Rs. 33,740.48 per bigha. All these exemplars certified copies of sale-deeds vide Exts. 108 to 217 on record and Paper No. 519 and 520 have been duly proved and are admitted in the evidence under orders of this court, in vide of sec. 51-A of the L.A. Act, which provides that in any proceeding under this Act. A certified copy of a document registered under the Registration Act. Including a copy given u/s 57 of that Act. May be accepted as evidence of the transaction recorded. In such documents." The case law on this point is of State Usman Khan Vs. State of Maharashtra A.I.R. 1994 Bombay p-271 whereby it has been held that." claimants filing certified copy of registered document, document can be read in evidence in view of provisions of Sec-51-A of the L.A. Act. The same view has been laid down by our own Hon'ble High Court Allahabad in case of Tata Chemicals Ltd. Bombay Vs. Sadhu Singh, A.I.R. 1994 Allahabad p-66, wherein it has been held that "certified copies of registered sale deeds are admissible in evidence without examining vendors or vendee as witnesses."
10. After considering in great detail, the relevant documentary evidences as briefly noted above, the reference court proceeded to discuss the oral evidences. After considering the entire evidences on record, the reference court held in para 40 as under:-
"40. In view of the aforesaid discussion of the entire documentary and oral evidence of the parties available on record and in view of the Law and the case law as discussed above. I have come to a definite conclusion that the compensation of the acquired land as awarded by the S.L.A.O. Is quite insufficient in view of the relevant exemplars of sale-deeds of the acquired land and the adjacent land village Yusufpur, wherein the market rate of the land has been assessed at Rs.33,740.48 and Rs.49,000/- and Rs.34,984.60. I hold that Rs.27,000/- per bigha pucca would be an adequate rate of compensation of the acquired plots, which is payable to claimants no.1 to 5 of L.A.35/77 and claimants of L.A.99/78 of 103/78, 108/78, 111/78. Issues are decided accordingly."
11. Perusal of the findings recorded by the reference court, clearly indicates that the reference court has well considered voluminous evidences on record, both documentary and oral and has not committed any error to select the sale-deed instances being exhibit nos.126 and 155, which were of plot nos. 383 and 345 respectively of village Kukra, lands of which were also acquired under the acquisition in question. These two sale-deeds show transaction of sale of land at Rs.49,200/- and Rs.33,740.48 respectively per bigha. These sale-deed exemplars and certified copies of sale-deeds vide exhibit Nos.108 and 217 and paper nos. 519 and 520, were also duly proved. Under the circumstances, I do not find any infirmity in the impugned judgment of the reference court in view of the relevant exemplars of sale-deeds of the acquired land and adjacent land. The market value of the land has been considered as Rs.33,740.48 and Rs.49,200/- and Rs.34,984.60 per bigha, still the reference court took a lenient view in favour of the State appellants and determined compensation @ Rs.27,000/- per pakka bigha, which can not be said to be excessive. Under the circumstances, I have no difficulty to hold that the market value of Rs.27,000/- per pakka bigha determined by the reference court is not excessive. The question no.1 as framed above is answered accordingly. The judgment of the reference court with respect to determination of market value of the acquired land @ Rs.27,000/- per pakka bigha is upheld.
Question no.(ii)- Whether under the facts and circumstances of the case, the reference court is justified to award additional compensation under Section 23(1-A) of the Act?
12. The submission of learned counsels for the Mandi Samiti on this question has substance. The acquisition was made by notification under Section 4(1) of the Act published on 29.11.1975, which was followed by notification of the same date under Section 6 of the Act. The S.L.A.O. made the award on 25.2.1977.
13. Section 30(1) of the Act No.68 of 1984 regarding its application to proceedings pending on or after 30.4.1982 provides as under:-
"Section 30 - Transitional provisions.
30(1) The provisions of sub-section (1-A) of section 23 of the principal Act, as inserted by Clause (a) of section 15 of this Act, shall apply, and shall be deemed to have applied, also to, and in relation to:
(a) every proceeding for the acquisition of any land under the principal Act pending on the 30th day of April, 1982 [the date of introduction of the Land Acquisition (Amendment) Bill, 1982 in the House of the People) in which no award has been made by the Collector before that date.
(b) every proceeding for the acquisition of any land under the principal Act commenced after that date, whether or not an award has been made by the Collector before the commencement of this Act."
14. The question as to applicability of the newly inserted provisions of Section 23(1-A) of the Principal Act came for consideration before the Hon'ble Supreme Court in the case of Union of India and others vs. Filip Tiago De Gama of Vedem Vasco De Gama (1990) 1 SCC 277 (para 21 and 22) and Hon'ble Supreme Court held as under:-
"21. Entitlement of additional amount provided under Section 23(1-A) depends upon pendency of acquisition proceedings as on April 30, 1982 or commencement of acquisition proceedings after that date. Section 30 sub-section (1)(a) provides that additional amount provided under Section 23(1-A) shall be applicable to acquisition proceedings pending before the Collector as on April 30, 1982 in which he has not made the award before that date. If the Collector has made the award before that date then, that additional amount cannot be awarded. Section 30 sub-section (1)(b) provides that section 23(1-A) shall be applicable to every acquisition proceedings commenced after April 30, 1982 irrespective of the fact whether the Collector has made an award or not before September 24, 1984. The final point to note is that Section 30 sub-section (1) does not refer to Court award and the Court award is used only in section 30 sub-section (2).
22. In the case before us, on October 26, 1967, the notification under section 4 was issued. On March 5, 1969 the Collector made the award. The result is that on April 30, 1982 there was no proceedings pending before the Collector. Therefore, section 30 sub-section (1)(a) is not attracted to the case. Since the proceedings for acquisition commenced before April 30, 1982, section 30 sub-section (1)(b) is also not applicable to the case. Here, the case is really gone by both ways. It cannot be saved from Scylla or Charybdis. The claimant is, therefore, not entitled to additional amount provided under Section 23( 1-A)." (Emphasis supplied by me)
15. The aforesaid judgment of Hon'ble Supreme Court was considered by the Consitution Bench of Hon'ble Supreme Court in the case of K.S. Paripoornan vs. State of Kerala and others (supra) (paras 75 and 80) and it it was held as under:-
"75............................. ................................. ....................... ...........................In our opinion, the provisions of Section 23(1-A) of the principal Act and Section 30(1) of the amending Act have been correctly construed in Filip Tiago (1990) 1 SCC 277 to mean that the obligation to pay additional amount in respect of proceedings initiated before the date of commencement of the amending Act is confined to the matters covered by clauses (a) and (b) of sub-section (1) of Section 30 of the amending Act and we endorse the said view.
80. For the reasons aforementioned it must be concluded that in respect of acquisition proceedings initiated prior to date of commencement of the amending Act the payment of the additional amount payable under Section 23(1-A) of the Act will be restricted to matters referred to in clauses (a) and (b) of sub-section (1) of Section 30 of the amending Act. Zora Singh, (1992) 1 SCC 673 insofar as it holds that the said amount is payable in all cases where the reference was pending before the reference Court on 24-9-1984, irrespective of the date on which the award was made by the Collector, does not lay down the correct law."
16. In view of the authoritative pronouncement by Hon'ble Supreme Court as aforenoted, I have no difficulty to hold that the provisions of Section 23(1-A) of the Act shall not be applicable to the cross-objector/ claimant inasmuch as the acquisition was made by notification under Section 4 of the Act on 11.01.1977, followed by notification under Section 6 issued on 12.01.1977 and the award was made by the S.L.A.O. on 6.2.1979. In the case of K.S. Paripoornan (supra), the Constitution Bench of Hon'ble Supreme Court has overruled the judgment in the case of Zora Singh (supra) in which it was held that the amount under Section 23(1-A) is payable in all cases where the reference was pending before the reference Court on 24-9-1984, irrespective of the date on which the award was made by the Collector. Under the circumstances, the cross objector shall not be entitled to the benefit as provided under Section 23(1-A) of the Act.
17. In view of the above discussion, I have no difficulty to hold that the provisions of Section 23(1-A) of the Act shall not be applicable to the tenure holders as acquisition was made and the award was passed by the S.L.A.O. much prior to coming into force the amending Act 68 of 1984. Consequently, the judgment of the reference court to the extent it granted benefit of Section 23(1-A) of the Act to the tenure holders, deserves to be set aside. Question no.(ii) is answered accordingly.
Question no.(iii)- Whether under the facts and circumstances of the case, the reference court has committed error of law in awarding solatium @ 30% instead of 15%?
18. Section 23(2) of the Act provides that additional sum of 30% of the market value shall be applicable to awards made and the order passed by the Court after 30.4.1982. In the present set of facts, the reference court passed the impugned judgment/award on 12.8.1996. Therefore, the reference court has not committed any error of law in granting benefit under Section 23(2) of the Act to the claimants.
19. The view taken by me is also supported by law laid down by Hon'ble Supreme Court in the case of Union of India vs. Raghubir Singh (1989) 2 SCC 754, in which Hon'ble Supreme Court held as under:
"30. We now come to the merits of the reference. The reference is limited to the interpretation of S. 30(2) of the Land Acquisition (Amendment) Act of 1984. Before the enactment of the Amendment Act, solatium was provided under S. 23(2) of the Land Acquisition Act (shortly, "the parent Act") at 15% on the market value of the Land computed in accordance with S. 23(1) of the Act, the solatium being provided in consideration of the compulsory nature of the acquisition. The Land Acquisition Amendment Bill, 1982 was introduced in the House of the People on 30 April, 1982 and upon enactment the Land Acquisition (Amendment) Act, 1984 commenced operation with effect from 24 September, 1984. S. 15 of the Amendment Act amended S. 23(2) of the parent Act and substituted the words '30 per centum' in place of the words '15 per centum'. Parliament intended that the benefit of the enhanced solatium should be made available, albeit to a limited degree, even in respect of acquisition proceedings taken before that date. It sought to effectuate that intention by enacting S. 30(2) in the Amendment Act, S. 30(2) of the Amendment Act provides:
"(2) the provisions of sub-s. (2) of s. 23 ......of the principal Act, as amended by clause (b) of S. 15 ........of this Act ....... shall apply and shall be deemed to have applied, also to, and in relation to, any award made by the Collector or Court or to any order passed by the High Court or Supreme Court in appeal against any such award under the provisions of the principal Act after the 30th day of April, 1982 [the date of introduction of the Land Acquisition (Amendment) Bill, 1982, in the House of the People] and before the commencement of this Act."
31. In construing S. 30(2), it is just as well to be clear that the award made by the Collector referred to here is the award made by the Collector under S. 11 of the parent Act, and the award made by the Court is the award made by the Principal Civil Court of Original Jurisdiction under S. 23 of the parent Act on a reference made to it by the Collector under S. 19 of the parent Act. There can be no doubt that the benefit of the enhanced solatium is intended by S. 30(2) in respect of an award made by the Collector between 30 April 1982 and 24 September, 1984. Likewise the benefit of the enhanced solatium is extended by S. 30(2) to the case of an award made by the Court between 30 April 1982 and .24 September 1984, even though it be upon reference from an award made before 30 April, 1982.
32. The question is: what is the meaning of the words "or to any order passed by the High Court or Supreme Court on appeal against any such award?" Are they limited, as contended by the appellants, to appeals against an award of the Collector or the Court made between 30 April 1982 and 24 September 1984, or do they include also, as contended by the respondents, appeals disposed of between 30 April, 1982 and 24 September 1984 even though arising out of awards of the Collector or the Court made before 30 April, 1982. We are of opinion that the interpretation placed by the appellants should be preferred over that suggested by the respondents. Parliament has identified the appeal before the High Court and the appeal before the Supreme Court by describing it as an appeal against 'any such award'. The submission on behalf of the respondents is that the words 'any such award' mean the award made by the Collector or Court, and carry no greater limiting sense; and that in this context, upon the language of S. 30(2), the order in appeal is an appellate order made between 30 April 1982 and 24-September 1984--in which case the related award of the Collector or of the Court may have been made before 30 April 1982. To our mind, the words 'any such award' cannot bear the broad meaning suggested by learned counsel for the respondents. No such words of description by way of identifying the appellate order of the High Court or of the Supreme Court were necessary. Plainly, having regard to the existing hierarchical structure of fora contemplated in the parent Act those appellate orders could only be orders arising in appeal against the award of the Collector or of the Court. The words 'any such award' are intended to have deeper significance, and in the context in which those words appear in S. 30(2) it is clear that they are intended to refer to awards made by the Collector or Court between 30 April, 1982 and 24 September, 1984. In other words S. 30(2) of the Amendment Act extends the benefit of the enhanced solatium to cases where the award by the Collector or by the Court is made between 30 April, 1982 and 24 September, 1984 or to appeals against such awards decided by the High Court and the Supreme Court whether the decisions of the High Court or the Supreme Court are rendered before 24 September, 1984 or after that date. All that is material is that the award by the Collector or by the Court should have been made between 30 April, 1982 and 24 September, 1984. We find ourselves in agreement with the conclusion reached by this Court in K. Kamalajammanniavaru (dead) by Lrs. v. Special Land Acquisition Officer, (supra), and find ourselves unable to agree with the view taken in Bhag Singh and Others v. Union Territory of Chandigarh, (supra). The expanded meaning given to S. 30(2) in the latter case does not, in our opinion, flow reasonably from the language of that sub-section. It seems to us that the learned judges in that case missed the significance of the word 'such' in the collocation 'any such award' in S. 30(2). Due significance must be attached to that word, and to our mind it must necessarily intend that the appeal to the High Court or the Supreme Court, in which the benefit of the enhanced solatium is to be given, must be confined to an appeal against an award of the Collector or of the Court rendered between 30 April, 1982 and 24 September, 1984.
33. We find substance in the contention of the learned Attorney General that if Parliament had intended that the benefit of enhanced solatium should be extended to all pending proceedings it would have said so in clear language. On the contrary, as he says, the terms in which S. 30(2) is couched indicate a limited extension of the benefit. The Amendment Act has not been made generally retrospective with effect from any particular date, and such retrospectivity as appears is restricted to certain areas covered by the parent Act and must be discovered from the specific terms of the provision concerned. Since it is necessary to spell out the degree of retrospectivity from the language of the relevant provision itself, close attention must be paid to the provisions of S. 30(2) for determining the scope of retrospective relief intended by Parliament in the matter of enhanced solatium. The learned Attorney General is also right when he points out that it was never intended to define the scope of the enhanced solatium on the mere accident of the disposal of a case in appeal on a certain date. Delays in the superior Courts extend now to limits which were never anticipated when the right to approach them for relief was granted by statute. If it was intended that S. 30(2) should refer to appeals pending before the High Court or the Supreme Court between 30 April, 1982 and 24 September, 1984, they could well refer to proceedings in which an award had been made by the Collector from anything between 10 to 20 years before. It could never have been intended that rates of compensation and solatium applicable to acquisition proceedings initiated so long ago should now enjoy the benefit of statutory enhancement. It must be remembered that the value of the land is taken under S. 11(1) and S. 23(1) with reference to the date of publication of the notification under-S.4(1), and it is that date which is usually material for the purpose of determining the quantum of compensation and solatium. Both S. 11(1) and S. 23(1) speak of compensation being determined on the basis, inter alia, of the market value of the land on that date, and solatium by s. 23(2), is computed as a percentage on such market value.
34. Our attention was drawn to the order made in State of Punjab v. Mohinder Singh, (supra), but in the absence of a statement of the reasons which persuaded the learned Judges to take the view they did we find it difficult to endorse that decision. It received the approval of the learned Judges who decided Bhag Singh (supra), but the judgment in Bhag Singh, (supra) as we have said earlier, has omitted to give due significance to all the material provisions of S. 30(2), and consequently we find ourselves at variance with it. The learned Judges proceeded to apply the principle that an appeal is a continuation of the proceeding initiated before the Court by way of reference under-s. 18 but, in our opinion, the application of a general principle must yield to the limiting terms of the statutory provision itself. Learned counsel for the respondents has strenuously relied on the general principle that the appeal is a re-hearing of the original matter, but we are not satisfied that he is on good ground in invoking that principle. Learned counsel for the respondents points out that the word 'or' has been used in S. 30(2), as a disjunctive between the reference to the award made by the Collector or the Court and an order passed by the High Court or the Supreme Court in appeal and, he says, properly understood it must mean that the period 30 April, 1982 to 24 September, 1984 is as much applicable to the appellate order of the High Court or of the Supreme Court as it is to the award made by the Collector or the Court. We think that what Parliament intends to say is that the benefit of S. 30(2) will be available to an award by the Collector or the Court made between the aforesaid two dates or to an appellate order of the High Court or of the Supreme Court which arises out of an award of the Collector or the Court made between the said two dates. The word 'or' is used with reference to the stage at which the proceeding rests at the time when the benefit under-S. 30(2) is sought to be extended. If the proceeding has terminated with the award of the Collector or of the Court made between the aforesaid two dates, the benefit of S. 30(2) will be applied to such award made between the aforesaid two dates. If the proceeding has passed to the stage of appeal before the High Court or the Supreme Court, it is at that stage when the benefit of S. 30(2) will be applied. But in every case, the award of the Collector or of the Court must have been made between 30 April, 1982 and 24 September, 1984.
In the result we overrule the statement of the law laid down in Mohinder Singh, (supra) and in Bhag Singh and Another, (supra) and prefer instead the interpretation of S. 30(2) of the Amendment Act rendered in K. Kamalajammanniavaru (dead) by Lrs. (supra).
The cases will now be listed before a Division Bench of three learned Judges for hearing on the merits of the other points raised in the cases." (Emphasis supplied by me)
20. In view of the aforesaid, I have no difficulty to hold that the reference court has correctly granted solatium @ 30% as per amended provisions of Section 23(2) of the Act. Question no.(iii) is answered accordingly.
21. For the reasons stated above, all the First Appeals of Mandi Samiti are partly allowed only on the question no.(ii) holding that the reference court has committed error of law in extending the benefits of Section 23(1-A) of the Act to the claimants. The rest of the judgment is upheld. The impugned judgments and decrees are accordingly modified. The appellants shall pay the entire balance amount of compensation, solatium and interest etc. under the Act to the tenure holders/claimants within three months from today after adjusting any amount already received by them.
22. All the appeals are partly allowed to the extent indicated above. There shall be no order as to costs.
Order Date:-21.12.2016
V Kumar
