Mool Chandra & Another vs Nagar Mahapalika, Agra & Others
2018 Latest Caselaw 1509 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


 
AFR                                                                  Reserved on 5.7.2018
 
Court No. - 34                                               Delivered on 13.7.2018
 
                                                                       
 
Case :- FIRST APPEAL No. - 50 of 1973
 

 
Appellant :- Mool Chandra & Another
 
Respondent :- Nagar Mahapalika, Agra & Others
 
Counsel for Appellant :- SN Dubey,Lal Chandra Srivastava,Neeraj Srivastava,Satya Prakash
 
Counsel for Respondent :- P.K.Jain,Suresh Chandra Srivastava
 

 
Hon'ble Sudhir Agarwal,J.

1. This appeal under Section 381 of U.P. Nagar Mahapalika Adhiniyam, 1959 (hereinafter referred to as 'Act, 1959') has arisen from judgment and award dated 02.04.1971 passed by Sri Hira Lal Kapoor, District Judge/Chairman, Nagar Mahapalika Tribunal, Agra (hereinafter referred to as ''Tribunal') in Land Acquisition Case (hereinafter referred to as 'LAR') No. 95 of 1961 whereby it has allowed a total compensation against acquired land, to respondents 3, 4 and 5 at Rs. 65,891.25/- and to appellants who were tenants, at Rs. 22,572.88/-. The aforesaid amount comes after deduction of amount already awarded by Land Acquisition Officer (hereinafter referred to as 'LAO').

2. Dispute relates to acquisition of 12 bigha 3 biswa land situated in Village Surajpur which include plot no. 378 area 15 biswa; 399 area 5 biswa and 384, 385, 386, 387, 388, 394, 396, 397, 398, total area 6 bigha 15 biswa (20418.75 square yards).

3. In 1953, there was Town Improvement Trust at Agra governed by U.P. Town Improvement Act, 1919 (hereinafter referred to as "Act, 1919"). For acquisition of land as aforesaid, a notification under Section 36 of Act, 1919, (pari materia to Section 4 of Land Acquisition Act, 1894) (hereinafter referred to as "Act, 1894") was issued and published on 13/20/27.06.1953. Declaration under Section 42 of Act, 1919 (pari materia to Section 6 of Act, 1894) was published on 13th September, 1955. Most land was agricultural but some part of plots No. 378 and 399 was lying barren (Banjar). The aforesaid land was sought to be acquired for development of Raja Mandi Railway Station at Agra.

4. Claimants-Appellants are concerned with Plots no. 384 to 388, 394 and 396 to 398, area 20418.75 square yards (6 bigha 15 biswa). They are tenants in possession of said land and claimed compensation at the rate of Rs. 8/- per square yard. Appellants pleaded that only a very small area of 2756.25 square yards of plots no. 378 and 399 was in exclusive possession of respondents 3 to 5 and rest is with them. Appellants also pleaded that there existed some fruits bearing trees etc for which also compensation was to be determined.

5. LAO awarded compensation at the rate of Rs. 1/- per square yard, Rs. 262/- towards cost of trees and in respect of house existed over some part of land, Rs. 1500/- was awarded as compensation. Dissatisfied with award of LAO, appellants moved application under Section 18 of Act, 1894 seeking a reference to Tribunal to determine market value of acquired land for the purpose of compensation. Tribunal formulated following six issues :-

"(i) Is the compensation awarded to the claimant inadequate? If so, to what compensation are the claimants entitled?

(ii) Whether there were 200 Papita trees on the land in question? If so, what compensation are the claimants entitled for the Papita plants ?

(iii) What was the valuation of the house which was standing on the land at the time of notification?

(iv) Were the claimants wrongly dispossessed from the land? If so, are they entitled to any compensation on that account?

(v) Whether opposite parties 2 to 4 are entitled to any apportionment? If so, in what proportion?

(vi) To what relief, if any, are the claimants entitled?

6. Appellants relied on the following documentary evidence :-

(i) Sale deed dated 28.06.1948 executed by Sri Pyare Lal in favour of Sri Chet Ram and others transferring 132 square yards land situated at Alamganj, Agra at the rate of Rs. 10/- per square yard (Paper no. 44-C).

(ii) Sale deed dated 20.09.1951 executed by Sri Hari Singh and another in favour of Sri Vidya Ram and another transferring 55 square yard land situated at Ghera Safdar Khan, Jatpura, Lohamandi, Agra at the rate of Rs. 6.50/- per square yard (Paper no. 45-C).

(iii) Sale deed dated 31.07.1948 executed by Sri Basant Lal & others in favour of Sri Kunwar Sukhbir Singh transferring land measuring 6414 square yards situated at Mauza, Surjepur at the rate of Rs. 5.50/- per square yard (Paper no. 57-Ka).

7. Respondents 3 to 5 who were Owners/Zamindar of land, also cited following documents as exemplars :-

(i) Sale deed dated 14.09.1955 executed by Capt. K.P. Bagchi in favour of Sri Onkar Nath Sharma and others transferring land measuring 2016 square yards situated at Mauza, Surjepur at the rate of Rs. 11/- per square yard (Paper No. 58-Ka).

(ii) Sale deed dated 29.12.1955 executed by Sri Dwarika Prasad Upadhiya in favour of Pt. Om Prakash Sharma, Vakil transferring land measuring 1112 square yards situated at Mauza, Surjepur at the rate of Rs. 7/- per square yard (Paper No. 59-Ka).

8. Tribunal has answered issue 1 holding that market value of acquired land, for the purpose of compensation, would be Rs. 3/- per square yards. With respect to compensation towards trees and houses, Tribunal has awarded Rs. 630/- for trees and Rs. 800/- towards house. Answering issue 4, it has held that for wrongful dispossession, no compensation is payable and answering issue 5, it has apportioned compensation in the ratio of 10:6 Aana between Zamindar and Tenants.

9. Sri Lal Chand Srivastava, learned counsel for Appellants has pressed only three points before this Court i.e.

(i) Compensation at Rs. 3/- per square yard is inadequate.

(ii) Even if compensation is determined at the rate of Rs. 3/- per square yard in 1953, since ultimate determination has been made in 1971 by Tribunal, therefore, an appreciation of 10% per annum ought to have been allowed by Tribunal.

(iii) Apportionment of compensation between Zamindar and Tenants is wholly illegal, inasmuch as, appellants being 'Occupier' of land in question became Bhumidhar and respondents 3, 4 and 5 lost their rights and interest over property in dispute, therefore, entire compensation is payable to appellants. In the alternative apportionment should be 25% to Zamindar and 75% to Tenants i.e. Appellants.

10. First and second issues can be considered together, I find that relevant date for determining compensation is the date on which notification under Section 36 of Act, 1919, which is pari materia of Section 4 of Act, 1894, was published i.e. 27th June, 1953. As per own admission of appellants, no exemplar was placed before Tribunal which is near the crucial date or even within one year thereof. Exemplars relied by appellants are of 1948 and 1951. The date of first exemplar is 28th June, 1948, second is 31st July, 1948 and third one is 20th September, 1951. Two relates to a very small piece of land. Sale deed dated 20th September, 1951 relates to 55 square yards land situated in Ghera Safdar Khan, Jatpura, Lohamandi, Agra and sale deed dated 28th June, 1948 relates to 132 square yards land in Alamganj, Agra. Area of acquired land of appellants, disputed in the appeal, is more than 20,000 square yards. Tribunal has clearly recorded that only sale deeds and exemplars were relied. Oral evidence virtually is of no use. All the plots except plots no. 378 and 399, were under occupation of Tenants. Looking to these facts and circumstances, Trial Court determined compensation at the rate of Rs. 3/- per square yards. Even if this Court relies on two exemplars relied by appellants before Tribunal whereby one exemplar demonstrated rate of Rs. 10/- per square yard and in the sale deed of 28th June, 1948 and another Rs. 6.50/- per square yard in September, 1951, and adopts sale deed providing highest rate i.e. Rs. 10/- per square yard and gives, 10% appreciation as claimed for 5 years, the rate would come to around Rs. 16/- per square yard. Now looking to the fact that disputed land is more than 20,000 square yards and exemplar relates to transfer of land measuring 132 square yards, deduction on account of largeness of area which will have to be applied in the case in hand, would be at the highest level i.e. 75% and if the same is applied, it will come to around Rs. 4/- per square yard. Applying further deduction towards development, looking to the fact that land was wholly undeveloped, in the entirety of the facts and circumstances, it cannot be said that the rate of Rs. 3/- per square yard determined by Tribunal is so inadequate, unjust or insufficient that it requires interference by this Court. I, therefore, answer questions 1 and 2 against appellants and hold that market rate for the purpose of compensation determined by the court below at the rate of Rs. 3/- per square yard is just and valid and the issues 1 and 2 are answered against appellants.

11. Now, third question relates to apportionment of compensation between Zamindars and Tenants. When a land is acquired, compensation is in respect of entire rights and interest, held by the person, whose land is acquired. If the land is of a lessor and under a lease, the right and interest of lessee are also acquired and, therefore, he is also entitled to compensation which has to be apportioned vis-a-vis the compensation payable to landlord. Looking to the extent of right and interest of the parties vis-a-vis the land acquired, compensation becomes payable for the lease hold right or interest held by lessee or grantee when a land which is leased out to someone, is acquired. When land is granted on lease in favour of a person, power to resume land is subject to non-fulfilment of terms and conditions of lease by lessee. So long as lessee acts and complies with the covenants contained in the lease or the grant, right to resumption in terms of lease or grant would not arise. It is for this reason, lessee is also entitled to apportion compensation in respect of lease land when it is acquired by Government under the provisions of Act, 1894 (in this case Act, 1919).

12. The question of apportionment came up for consideration before Bombay High Court In Re: Pestanji Jahangir Hormasji, (1912) 14 BOM LR 507 and Court held that for apportionment of a sum awarded amongst the persons interested in proportion to the value of their interest, no general rule can be laid down. When a Tenant has permanent lease or a perpetual lease for the purpose of apportionment, Landlord should get capitalized value of land plus something more on account of the right of reversion vested in him and balance must go to Tenant having permanent lease or perpetual lease in respect of the land.

13. Gujarat High Court in Baj Saraswati Jeshankar and another vs. Agent, Bhartkhand Textiles Manufacturing Co. Ltd. and others AIR 1967 Guj 36 observed, while apportionment is to be done, Landlord and Tenant, both should be compensated for the value of interest that is lost by acquisition. The amount of compensation is determined with reference to the market value of land as prevailing on the date of notification and question is what is the portion of that market value which is attributable to one or the other party and which that party has lost. If interest of Landlord and Tenant can be valued in terms of money with a reasonable precision and exactness that would be the best method of computing the compensation. In that case, proportion of 25 to tenant and 75 to landlord was held reasonable.

14. In Dossibai Nanabhoy Jeejeebhoy v. P.M. Bharucha, (1958) 60 BOM LR 1208, a Division Bench of Bombay High Court in the matter of apportionment of compensation between lessor or lessee observed that Court has to give to each claimant, the value of interest which he has lost by compulsory acquisition. The compensation awarded for compulsory acquisition is the value of all the interest which are extinguished and that compensation has to be distributed equitably amongst persons having interest therein. Court must proceed to apportion compensation so that the aggregate value of all interests is equal to the amount of compensation awarded. In disputes between Landlords and Tenants about apportionment, different methods of apportionment have been adopted. The methods which are generally adopted fall into three broad divisions. Under the first method, value of lessor's and lessee's interest may be separately ascertained in terms of money and then out of total amount awarded the value of interest of one may be taken out and the remainder awarded to other. The second method is to value the interest of the lessor and the lessee separately, and if the aggregate of these two values does not reasonably correspond to the amount of compensation available for distribution, the amount may be distributed in the proportion of the two amounts. If reasonably precise valuation of the competing interests is not possible, Court may proceed to evaluate interests of claimants in terms of fractions of total amount of compensation regarded as a single unit and i.e. the third method.

15. Allahabad High Court also held an occasion to consider this aspect in Shiam Lal and others v. Collector of Agra, AIR 1934 All 239 wherein a Full Bench evaluated the interest of Claimants in terms of fraction of total amount of compensation regarded as single unit and held that having regard to the fact that land in question was agricultural, given on a long lease of 99 years with the option to Tenant to renew it for another 99 years at enhanced rate, apportionment of compensation should be 6 Aana and 10 Aana between Landlords and Tenants.

16. In a subsequent judgement of Division Bench of Gujarat High Court in Sharadchandra Chimanlal and others Vs. State of Gujarat and others, AIR 1987 Guj 55, apportionment of 75:25 was allowed where 75% was given to Lessee and 25% was given to Owner i.e. Lessor.

17. In the matter of Nazul land which was under lease, Supreme Court in Inder Parshad Vs. Union of India (UOI) and others (1994) 5 SCC 239, allowed apportionment of compensation by first determination of total compensation for acquisition of land and then allowing 75% to Lessee and 25% to Lessor for the reason that lease was perpetual and the super structure was raised by Lessee, thereon.

18. In the present case, we find that Tribunal while deciding the issue of apportionment has not given details and there is no discussion. Straight away it has provided apportionment of 10:6 aana, probably, in view of Full Bench Judgement of this Court but without considering relevant factors.

19. This Court however finds that in respect of Agra itself, in a similar matter which came up before this Court in First Appeal No. 103 of 1974 (Life Insurance Corporation Vs. Nagar Mahapalika, Agra) decided vide judgement dated 12.02.2016, this Court has apportioned amount of compensation between Tenants and Zamindar in the ratio of 50%. Therein also Tribunal had allowed apportionment in the ratio of 10:6. The relevant extract given in para 23 of said judgement reads as under:-

"23. In the facts and circumstances, I partly allow the appeal, modify the impugned judgment and order of Tribunal dated 19.12.1973, to the extent that apportionment of compensation towards land (9 bigha 13 biswa) between appellant and respondents 2, 3 and 4 would be half each instead of 10:6 ratio as awarded by Tribunal. To this extent, impugned order is modified."

20. Question no. 2, therefore, is answered in favour of appellants in the manner that amount of compensation awarded by Court below in respect of land would be apportioned between Zamindar and Tenants in the ratio of 50% each.

21. I further clarify that in respect of compensation determined towards houses and trees, no argument has been advanced before me, therefore, I have not touched and looked into that aspect.

22. No other point has been argued.

23. In view of above, appeal is partly allowed. The judgement/award and decree dated 02.04.1971 passed by Tribunal in Land Acquisition Case No. 95 of 1976 is modified to the extent that apportionment of compensation towards acquired land between Zamindar and Tenants would be in the ratio of half each i.e. 50% each, instead of 10:6 Aana.

Order Date :- 13.7.2018

Siddhant Sahu