Sharafat Ali v. State of Uttar Pradesh — 1986 DIGILAW 634 (ALL)

ORDER 1.This group of petitions under Art. 226 of the Constitution is directed against the award of the Arbitrator appointed under section 8(1) (b) of the Requisitioning and Acquisition of Immovable Property Act, 1952 (for short 'the Act, 1952'). 2. Land measuring 32 bighas 10 Biswas constituting a compact area situate in villages chak Maida Patti, Gayasuddinpur and Harwara district Allahabad, was requisitioned on the move of the Commandant, Provincial Armed Constabulary, 1st Battalion, for the construction of staff quarters and other buildings connected with their maintenance. The requisition sought was under section 29 of the Defence of India Act, 1962. In exercise of the delegated authority conferred by the notification of the State Government dated Jan. 14, 1963, the District Magistrate, Allahabad, made the order for requisition on Jan. 13, 1964, under the said provision. Later under the order dated May 3, 1968, the District Magistrate acquired the said land permanently under section 36 of the Defence of India Act, 1962. Notices were issued and also duly published in the Gazette dated June 15, 1968. Certain claims were filed by interested persons. The Competent Authority made determination under his order dated Dec. 11, 1972, of the amount payable as compensation to the persons interested. Being not satisfied with the determination thus made, some of the persons interested sought a reference to arbitration. The reference was made accordingly under R. 9(1) of the Defence of India (Requisitioning and Acquisition of Immovable Property) Rules, 1963, read with section 37(2), Defence of India Act, 1962. The Arbitrator gave the award wherein the amount determined by the Competent Authority, as compensation for the land acquired, has been enhanced, but the Arbitrator has declined to award solatium or interest being of opinion that the provisions contained in Sections 37 and 43 of the Defence of India Act were exhaustive in this respect and hence Sections 23(2)/28 of the Land Acquisition Act could be of no avail to the claimants. 3. Aggrieved against the award dated April 1, 1982, Sharafat Ali has filed the Civil Miscellaneous Writ Petition No. 12249 of 1982. Writ Petition No. 12495 of 1982 has been filed by the State and is directed also against the same award. Writ Petition No. 7710 of 1983 is filed by Prem Chand and others against the award dated March 8, 1983. The other writ petitions mentioned above, are those filed by the State. Writ Petition No. 12495 of 1982 has been filed by the State and is directed also against the same award. Writ Petition No. 7710 of 1983 is filed by Prem Chand and others against the award dated March 8, 1983. The other writ petitions mentioned above, are those filed by the State. For the State the contention is that the compensation awarded by the Arbitrator is excessive in all these cases; the claimants maintained, on the other hand, that the Arbitrator has erred in not awarding solatium and interest and also that the compensation assessed is inadequate. With the consent of counsel for the parties these have been heard together. 4. The chief issue raised in these connected petitions is in regard to the Arbitrator declining to award solatium and interest to the claimants. This is the claim raised in the main in Writ Petitions Nos. 12249 of 1982 and 7710 of 1983. Section 8 of the Act, 1952, lays down the principle and method of determining the compensation in such cases. According to these provisions, where the amount of compensation can be fixed by agreement, it shall be paid in accordance with such agreement. No such agreement is pleaded or shown in the present. In case no such agreement is reached the Central Government is enjoined by cl. (b) of sub-section (1) of section 8 to appoint an Arbitrator a person who is or has been or is qualified for appointment as a Judge of a High Court. The Arbitrator is required, under cl. (e), to hear the dispute and make an award-determining the amount of compensation which appears to him to be just'. The Arbitrator shall have regard to the circumstances of each case and the provisions of sub-secs. (2) and (3) of section 8 so far as applicable. He is thus to take into account the price, which the property would have fetched in the open market but for the acquisition; the pecuniary loss ensued to the owner thereby. Under the scheme of section 23 Land Acquisition Act, it will be noticed, solatium is a component of compensation. Sub-section (1) of section 23 lays down that in determining the amount of compensation the Court shall take into consideration the market value of the land at the relevant date. Under the scheme of section 23 Land Acquisition Act, it will be noticed, solatium is a component of compensation. Sub-section (1) of section 23 lays down that in determining the amount of compensation the Court shall take into consideration the market value of the land at the relevant date. Sub-section (2) provides that in addition to the market value of the land, the Court shall, in every case, award solatium at the prescribed rate. Solatium, has, thus, been treated as distinct from the market value of the property acquired and constitutes a component of the compensation awarded (Union of India v. Ram Mehar (1973) 1 SCC 109 at P. 114). In dealing with a case of acquisition under Assam Land (Requisition & Acquisition) Act, 1948 (vide P. C. Goswami v. Collector, Darrang (1982) 1 SCC 439 at p. 441 ) the Supreme Court reiterated that there is no justification for discriminating between an acquisition under one Act and an acquisition made under another Act in so far as payment of solatium is concerned. Reference was made thereunder, with approval, to the earlier decision reported in State of Kerala v. T. N. Peter (1980) 3 SCC 554 (See also Nagpur Improvement Trust case (1973) 1 SCC 500 ; Om Prakash v. State of U.P. (1974) 1 SCC 628 ( AIR 1974 SC 1202 ). 5. In AIR 1984 Andh Pra 217 (Mawahedduddin v. The Collector, Hyderabad) the Division Bench was concerned with an award given under section 8(1) of the Act 1952. It was held that the Arbitrator while exercising his power to determine just compensation is entitled to follow the principles laid down in section 23(1) of the Land Acquisition Act and that there is no embargo to take those principles into account. The award of solatium makes the compensation allowed just, fair and reasonable. After considering the authorities, including the Union of India v. Ram Mehar (supra) the Bench, thus, expressed the conclusion : "A review of the above position of law would clearly indicate that when the property of a private citizen is acquired or requisitioned in exercise of the power of eminent domain, then the owner thereof shall amend or recompense the loss which he has suffered by reason of compulsory acquisition of his property. It is necessary to note at this stage that the Parliament is aware of the distinction between the words "Market value of the land" and "Compensation". In the Act, the Legislature has chosen to use the word "Compensation" instead of "Market value of the land". No doubt, a statutory duty has been cast under section 23(2) of the Land Acquisition Act 1894 to award solatium at the rate of 15% to the market value, but in the Act, there is no express provision to award solatium. But the question is whether solatium is expressly or by necessary implication excluded for being paid to the claimants or owners of the lands when the immovable property is sought to be acquired in exercise of the power under the Act. Before embarking upon that enquiry, it is necessary to state that it is well settled that payment of solatium is part of compensation under the provisions of the Land Acquisition Act as held by their Lordships of the Supreme Court in Union of India v. Ram Mehar, AIR 1973 SC 305 (supra). There, their Lordships pointed out the distinction between 'compensation' and the 'market value' and held that these two are distinct concepts. Their Lordships have held that solatium is part of compensation. A Full Bench of this Court in K.A. Swamy v. Land Acquisition Officer, AIR 1970 Andh Pra 139 at p. 143 laid down the same principle." 6. I am in respectful agreement with this view. In this connection my attention has been invited also to an unreported decision of the Supreme Court in Civil Appeal No. 3058 of 1983 (Goverdhan v. Union of India) decided on 31st January, 1983, in which it was held : "In this appeal, it is urged before us that the High Court should have awarded solatium and should also have awarded interest from the date of the original award to the date of payment. We are satisfied that the appellants are entitled to relief on both counts. The payment of solatium at 15% is obligatory under the Land Acquisition Act and for the same reason it should be regarded as obligatory under the Defence of India Act. The circumstance that the appellants did not specifically pray for solatium in their petition does not disentitle them to an order directing payment of solatium. The payment of solatium at 15% is obligatory under the Land Acquisition Act and for the same reason it should be regarded as obligatory under the Defence of India Act. The circumstance that the appellants did not specifically pray for solatium in their petition does not disentitle them to an order directing payment of solatium. As regards the claim of interest we think that it is only right that interest should be awarded to the appellants for the entire period up to the date of payment, the rate of interest being that at which interest has already been awarded by the High Court for the period ending May 8, 1967." 7. This is to be found relied upon by the learned single Judge in Smt. Chandravati Devi v. State of U.P. (Writ Petn. No. 12829 of 1981 and others decided on 3rd March, 1986 reported in 1986 All LJ 1203). Those petitions, it may be pointed, arose out of this very requisition followed by acquisition which has given rise to the petitions before me. Learned Judge therein has awarded solatium as also interest to the claimants placing reliance on the aforementioned decision of the Supreme Court, which evidently holds good equally for purposes of these petitions, which arise in the same process. 8. The issue whether the claimants are entitled to solatium is of mixed facts and law. The Arbitrator has given his reasons for taking the view that solatium is not payable. The reason assigned is that in the view of the Arbitrator, Sections 37 and 43 of the Defence of India Act are complete and exhaustive. The acquisition proceedings being under Sections 29/37., Defence of India Act, 1962, it was observed, the claimants are not entitled to solatium or interest relying on Sections 23(2)/28 of the Land Acquisition Act. This, it would appear, suffers from error apparent on the record. The Defence of India Act, 1962, expired on July 10, 1968. Requisition of land at large scale had taken place under that Act and construction had also been raised at various places. It was felt necessary to provide statutory cover even subsequent to the expiry of the Defence of India Act. The Act, 1952, was with this object, amended by introducing Central Act XXXI of 1968. Requisition of land at large scale had taken place under that Act and construction had also been raised at various places. It was felt necessary to provide statutory cover even subsequent to the expiry of the Defence of India Act. The Act, 1952, was with this object, amended by introducing Central Act XXXI of 1968. The Statement of Objects and Reasons of the Bill leading to the Amending Act XXXI of 1968 read as under : Amending Act 31 of 1968. The Defence of India Act 1962, will expire on the 10th July, 1968, that is, six months from the date of revocation of the Proclamation of Emergency. A large number of immovable properties have been requisitioned under the Defence of India Act, 1962. The cost of acquisition of these properties will be prohibitive. On many of these requisitioned land valuable structures have been put up. In the majority of the cases it has not been possible to vacate the lands and hand them over to the owners. It is, therefore, considered necessary that the properties requisitioned under the Act should continue to be subject to requisition even after the expiry of the Act. For this purpose it is proposed to amend the Requisitioning and Acquisition of Immovable Property Act. 1952 by adding a provision somewhat on the lines of Section 24(2) of that Act to provide that all property requisitioned under the Defence of India Act, 1962, shall from the date of revocation of the Proclamation of Emergency be deemed to be property requisitioned under the 1952 Act. In other words, though in fact the requisitioning of these properties was made under the Defence of India Act, it shall be deemed to have been made under section 3, of the Requisitioning and Acquisition of movable Property Act, f952 and all the provisions of the latter -Act shall apply accordingly. 9. Section 25 introduced in the Act, 1952, which contains special provisions as to certain requisitions which took place under the. Defence of India Act, 1962. Section 25, being, material, may here' be reproduced as under : "25. 9. Section 25 introduced in the Act, 1952, which contains special provisions as to certain requisitions which took place under the. Defence of India Act, 1962. Section 25, being, material, may here' be reproduced as under : "25. Special provision as to Certain.1 requisitions under Act, 51 of 1962 : (1) Notwithstanding anything contained in this Act, any immovable property requisitioned by the Central Government or by any officer or authority to whom powers in this behalf have been delegated by that Government, under the Defence of India Act, 1962, and the rules made thereunder (including any property deemed to have been requisitioned under the said Act) which has not been released from such requisition before the 10th January, 1968, shall, as from that date, be deemed to have been requisitioned by the competent authority under the provisions of this Act for the purpose for which such property was held immediately before the said date and all the provisions. of this Act shall apply accordingly : Provided that- (a) all determinations, agreements and awards for the payment of compensation in respect of any such property for any period of requisition before the said date and in force immediately before the said date : shall continue to be in force and shall apply to the payment of compensation in respect of that property for any period of requisition as from the said date; (b) anything done or any action taken (including any orders, notifications or rules made or issued) by the Central Government or by any officer or authority to whom powers conferred by or under Chapter VI of the Defence of India Act, 1962, shall, in so far as it is not inconsistent with the provisions of this Act, be deemed to have been done or taken in the exercise of the powers conferred by or under this Act as if this section was in force on the date on which such thing was done or action was taken. (2) Save as otherwise provided in sub- section (1), the provisions of the Defence of India Act, 1962, and the rules made thereunder, in so far as those provisions relate to the requisitioning of any such immovable property as is referred to in sub-section (1), shall from the 10th January, 1968, cease to operate except as respects things done or omitted to be done before such cesser and section 6 of the General Clauses Act, 1897, shall apply upon such cesser of operation as if such cesser were a repeal of an enactment by a Central Act." 10. Section 7 of the 1952 Act confers powers upon Government to acquire requisitioned property. Principles and method of determining compensation are laid in section 8. If the amount of compensation cannot be agreed upon, as mentioned above, the Central Government is to appoint an Arbitrator vide section 8(1)(b) read with R. (10)(1) of the Defence of India (Requisitioning and Acquisition of Immovable Property) Rules, 1962. As per section 8(1)(e) the Arbitrator shall, after hearing the dispute, make an award determining the amount of compensation, which appears to him to be just and (fair) and in making the award he shall have regard to the circumstances of each case and the provisions of sub-secs. (2) and (3) as far as applicable. Sub-section (2) relates to compensation concerning requisition while sub-section (3) lays down that the compensation payable for the acquisition of any property under section 7 shall be the price which the requisitioned property would have fetched in open market, if it had remained in the same condition as it was at the time of requisitioning and been sold on the date of acquisition. Read along with section 25, extracted above, these are the provisions relevant in respect of the determination of compensation in such a case. The requisition in the case before us had been made prior to Jan. 10, 1968, when the revocation of the Proclamation of Emergency issued under the Defence of India Act, 1962, took place. The property had not been released from the requisition before the said date that is, Jan 10, 1968. In contrast to section 37, Defence of India Act, 1962 section 8(1)(e) contemplates just compensation to be awarded and this would, therefore, include within its fold what has otherwise been regarded as just, fair or reasonable in the matter of compensation. The property had not been released from the requisition before the said date that is, Jan 10, 1968. In contrast to section 37, Defence of India Act, 1962 section 8(1)(e) contemplates just compensation to be awarded and this would, therefore, include within its fold what has otherwise been regarded as just, fair or reasonable in the matter of compensation. It is true that section 23(2) or 28, Land Acquisition Act for that matter do not apply in terms to acquisition, which has taken place under the Defence of Indiff Act or the Act, 1952. But it is the principle underlying the same, which has been made applicable as was held directly by the Supreme Court in the case of Goverdhan referred to above. My attention has been drawn also in this connection to the decision of a Division Bench of this Court in Union of India v. I Addl. Dist. Judge, Meerut (Writ Petition No. 4289 of 1981) dated Feb. 14, 1983 (reported in AIR 1983 All 258 ), wherein the case of an acquisition made under the Defence of India Act, 1962, interest has been awarded, but the solatium was declined. In that case the decision of the Supreme Court in Goverdhan dated Jan. 31, 1983, which is directly in point, could not be brought to the notice of the Bench. Since the law laid down by the Supreme Court squarely covers the point at issue concerning the solatium and interest both, the same is binding and has to be given effect to. 11. In so far as the value assessed of the land acquired is concerned, the award has also been the subject-matter of Writ Petn. No. 12829 of 1981 decided on 3rd March, 1986 (reported in 1986 All LJ 1203), as mentioned above. The material relied on both sides in support of their respective contentions concerning the assessment is the same. The award in that respect has been affirmed in that decision, which constitutes the best exemplar on the subject. Under Art. 226 of the Constitution, moreover, the Court does not exercise appellate jurisdiction. The jurisdiction is only supervisory in nature, which does not admit an reappraisal of the evidence. The assessment made by the Arbitrator proceeds on relevant material. 12. The award in that respect has been affirmed in that decision, which constitutes the best exemplar on the subject. Under Art. 226 of the Constitution, moreover, the Court does not exercise appellate jurisdiction. The jurisdiction is only supervisory in nature, which does not admit an reappraisal of the evidence. The assessment made by the Arbitrator proceeds on relevant material. 12. For the petitioners in Writ Petition No. 7710 of 1983 it was further contended, however, that they are entitled to the benefit of enhanced rate of solatium and interest on the principles of retrospectiveity given to the relevant provisions under section 30(2) of the Land Acquisition (Amendment) Act, 1984 (Act 68 of 1984). That the claimants are entitled to solatium and interest has already been dealt with, the question now is as to the rate thereof. For that too it does not appear that there is rational basis for departure from the rate admissible ordinarily keeping in view the provisions of the Land Acquisition Act. In so 'far as the Writ Petition No. 7710 of 1983 ,is concerned, the award of the Arbitrator under section 8(1) of the Act 1952, was given on March 8, 1983, that is to say after April 30, 1982 the date of introduction of the Land Acquisition (Amendment) Bill, 1982, and before September 24, 1984 the date of the commencement of that Act. It is true that there is no appeal pending before this Court against that award, but since this award came to be given after 30th April, 1982, and before September 24, 1984, the claimants would be entitled to the enhanced Irate of solatium and interest as has been held by the Supreme Court in Bhag Singh v. Union Territory (1985) 3 SCC 737 at p. 745 . In Smt. Chandrawati Devi (supra) the position in this respect was different because therein the award was given on August 10, 1981, that is before April 30, 1982, and of course, there was no appeal pending. The right to compensation, it has been held, arises when the land vests in the State while its quantification may be concluded much later. 'The owner of the land is entitled to be paid the true value of the land on the date of taking over of possession. (vide Joginder Singh v. State of Punjab and another (1985) 1 SCC 231 ). 'The owner of the land is entitled to be paid the true value of the land on the date of taking over of possession. (vide Joginder Singh v. State of Punjab and another (1985) 1 SCC 231 ). In conformity with the decision in Bhag Singh's case (supra), therefore, the petitioners in Writ Petition No. 7710 of 1983 are entitled to solatium at the rate of 30% on the amount of enhanced compensation as also interest at the rate of 9% per annum on the enhanced amount of compensation from the date on which possession of their land was taken up to the date of payment of such enhanced compensation. 13. As regards the petitioners in Writ Petition No. 12249 of 1982, the award was given on April 1, 1982, that is to say before April 30, 1982, and in that case too there is no appeal pending. Consequently, section 30(2) of the Central Act 68 of 1984 does not avail the petitioner therein and the petitioner cannot claim the benefit of enhanced solatium or enhanced rate of interest. 14. For the discussion made in the above, the Writ Petitions Nos. 12249 of 1982 and 7710 of 1983 succeed in part and are allowed accordingly. In Writ Petition No. 12249 of 1982 the petitioner shall be entitled, in addition to solatium at the rate of 15% and interest at the rate of 6% per annum simple from the date on which possession of the land was taken till the payment is made. In Writ Petition No. 7710 of 1983 the petitioners concerned shall be entitled in addition to solatium at the rate of 30% on the enhanced compensation and interest at the rate of 9% per annum on the enhanced amount of compensation calculated from the date on which possession was taken till the date of payment. For the rest these petitions are dismissed. 15. Writ Petitions Nos. 4014 to 4019 of 1984 and 12495 of 1982 are dismissed also. 16. In the circumstances there will be no order as to the costs.