State of U. P. v. Bechan — 1986 DIGILAW 831 (ALL)

Judgment B.L. Yadav, J. 1. THE present appeal by the State of U. P. is directed against the judgment and order dated 3-7-1978 passed by the District Judge, Mirzapur in a reference under section 18 of the Land Acquisition Act 1894 (for short the Act) for determination of the amount of compensation due to the respondents in respect of certain plots of land in an area of 14 bighas and 14 dhurs situate in Village Dumduma, Pargana Haveli, Tahsil Chunar, District Mirzapur. THE land was acquired by the U. P. Cement Corporation Ltd., Churk, Mirzapur for the construction of Railway Siding and other Allied Works for the grinding and packing plant, for blast furnace of slag cement at Chunar. 2. THE facts are few and simple. Notifications under sections 4 and 6 of the Act were published in the U. P. Gazette (Extra-Ordinary) on 22-11-1976 and 23-11-1976 respectively. THE possession was taken by the Collector on 11-1-1977. THE District Land Acquisition Officer, Mirzapur awarded a sum of Rs. 17,686.72 as compensation for the land, a sum of Rs. 152.46 for the price of the trees and Rs. 10,622.55 for the crops. THE award was challenged by a reference under section 18 of the Act. THE District Judge, Mirzapur decided (the Land Acquisition Case No. 63 of 1977) the reference by the impugned judgment and order. THE compensation was enhanced in reference at the rate of Rs. 8,000/- per bigha and a sum of Rs. 1,57,600.00 was determined as the compensation for the land. THE price of trees and crops remained the same as awarded by the District Land Acquisition Officer. A total sum of Rs. 1,68,375.01P was ordered to be paid as compensation of the land including price of trees and crops. Solatium at the rate of 15 per cent op the sum payable as compensation as also on the price of trees and crops was awarded. A total sum of Rs. 1,93,631.26 P. was awarded to the respondents including solatium. The learned Standing Counsel appearing for the appellant urged that the compensation must be awarded within the scope of section 23 of the Act. The exemplars have not correctly been relied upon. The solatium could be paid to the respondents in view of section 23 (2) of the Act only on the price of the land and not on the price of trees and the crops. 3. The exemplars have not correctly been relied upon. The solatium could be paid to the respondents in view of section 23 (2) of the Act only on the price of the land and not on the price of trees and the crops. 3. THE learned counsel for the respondents, on the other hand, urged that the learned District Judge has correctly awarded the compensation. 4. HAVING heard the learned counsel for the parties the points for our determination are (i) whether in view of Section 23 (1) of the Act the amount of compensation has correctly been fixed at the rate of Rs. 8,000/- per bigha, and (ii) whether under section 23 (2) of the Act the solatium could be awarded on the price of trees and crops also apart from the amount of compensation payable in respect of the land. As regards the first point about the amount of compensation to be awarded for the land acquired under the Act, the principles have been indicated under section 23 (1) of the Act. The market value of the land on the date of the publication of the notification under section 4 (1) of the Act should be ascertained in order to award the compensation. The damages sustained by the person for taking into possession of any standing crops and trees etc. have also to be considered. In other words, the compensation had to be assessed according to the market value of the land and the question to be considered was that the person from whom the land was taken was to lose by having it taken from him. In this case notification under section 4 of the Act was made on 22-11-1976 and notification under section 6 of the Act was also made on 23-11-1976. In order to ascertain the market value of the land three sale-deeds have been furnished. First sale-deed is dated 14-6-1974 for an area of 2 Bighas 9 Biswas and 18 dhurs of plot no. 217 for a sum of Rs. 2,500/- and the second sale-deed dated 4-7-1975 was for half of the area of plot no. 51 (area 5 biswas) for Rs. 2,000/-. The third sale-deed was dated 13-12-1976 for an area of 2 biswas of plot no. 139 for Rs. 2,000/-. 5. THE Land Acquisition Officer, however, relied upon the first exemplar, i. e. sale-deed dated 14-6-1974. 2,500/- and the second sale-deed dated 4-7-1975 was for half of the area of plot no. 51 (area 5 biswas) for Rs. 2,000/-. The third sale-deed was dated 13-12-1976 for an area of 2 biswas of plot no. 139 for Rs. 2,000/-. 5. THE Land Acquisition Officer, however, relied upon the first exemplar, i. e. sale-deed dated 14-6-1974. But this sale-deed is of more than two years prior to the date of notification issued under section 4 of the Act. This could not be a correct guide to ascertain the market value of the land on the date of notification under section 4 of the Act. THE second sale-deed dated 4-7-75 was also not of the same date when section 4 of notification was issued. This was about four and half months prior to the notification issued under section 4 of the Act. THE third sale-deed dated 13-12-1976 was of a date subsequent to the date of notification under section 4 (1) of the Act. This could not accordingly be a correct exemplar. Second sale-deed dated 4-7-75 appears, however, to be just about four and half months prior to the issuance of notification under section 4 can serve, approximately, as the proper exemplar. Even though one Bashir Khan, Amin appeared on behalf of the State and deposed that the first sale-deed dated 16-4-1974 was in respect of a land similar in nature than the land acquired. But as this was an exemplar of a date more than two years prior to the date of notification under section 4 of the Act, hence it cannot serve as a correct guide. Considering the entire evidence and circumstances of the case the second sale-deed dated 4-7-1975 is the approximately, best guide to ascertain the market value of the land on the date of notification under section 4 of the Act. 6. THERE is no denying the fact that strictly speaking the reference to the exemplar or the sale-deed very close to the date of notification under section 4 of the Act, in order to ascertain the market value of the land, is not an accurate guide. 6. THERE is no denying the fact that strictly speaking the reference to the exemplar or the sale-deed very close to the date of notification under section 4 of the Act, in order to ascertain the market value of the land, is not an accurate guide. THERE may be cases in which a sale-deed might have been executed by a person who was in ressing necessity for money, and no buyer was available, in that event he may sell for a lesser price than what may have been the actual market rate ; similarly a person for a particular piece of land might pay higher price than actually prevailing, on account of his special liking for a particular piece of land. In this situation we are of the opinion that an element of guess-work, in arriving at the market price of the land as envisaged by Section 23 (1) of the Act, is inevitable. The compensation in respect of the acquired land cannot be determined with mathematical accuracy or meticulous exactitude. But the amount of compensation has to be determined on the basis of material available on the record. The District Judge in reference has correctly relied upon the second sale-deed and the market value of the rate of Rs. 8 000/-per bigha has correctly been fixed. We are unable to accept the arguments of the learned Standing Counsel that the Land Acquisition Officer was correct in relying upon the first sale-deed. As regards the second point about solatium assessed by the District Judge at the rate of fifteen per centum on the price of trees and crops along with the market value of the land. Section 23 (1) of the Act deals with the determination of the amount of compensation to be awarded for the land acquired. Whereas section 23 (2) provides that in addition to the market-value of the land a sum of Rs. 15 per centum shall be awarded as a consideration of the compulsory nature of the acquisition. It is, therefore, clear that the solatium has to be determined only on the value of the land and not on the price of the trees and crops. The District Judge was not correct in awarding fifteen per cent solatium on the price of trees and crops. We, accordingly, find substance in this submission of the learned Standing Counsel. 7. It is, therefore, clear that the solatium has to be determined only on the value of the land and not on the price of the trees and crops. The District Judge was not correct in awarding fifteen per cent solatium on the price of trees and crops. We, accordingly, find substance in this submission of the learned Standing Counsel. 7. THERE appears to be yet another aspect of the matter. The respondents whose land has been acquired have not filed a cross appeal or cross-objection for the enhancement of the amount of twelve per centum per annum on such market value of the land from the date of issuance of notification under section 4 (1) of the Act till the date of award of the Collector or the date of taking over the possession whichever is earlier and the amount of solatium to be awarded on the market value of the land, in view of Section 23 (2) of the Act and the rate of interest under section 28 of the Act. Section 32 (2) of the Land Acquisition Amending Act (Act No. 68 of 1984) amended section 23 (1) of the Act and added Section 23 (1) (1-A) and section 23 (2) of the Act and enhanced the rate of solatium from fifteen per centum to thirty per centum and similarly section 28 providing six per centum interest on the amount of compensation has been enhanced to Nine per centum, Section 53 of the Act enacts that the provisions of the Code of Civil Procedure would apply to all the proceedings under the Act unless there is something inconsistent in the Act. THERE is nothing contrary in the Act to the provisions of Order 41 (Forty One) Rule 33 (Thirty three) of the Code of Civil Procedure which provides that the appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection. 8. 8. A bare reading of this provision makes it evident that if the appellate court considers proper in the ends of justice it can pass any decree or make any order in favour of a respondent who might not have preferred an appeal or cross-objection. In Smt. Saroj Rani v. Sudarshan Kumar Chandra, AIR 1985 SC 1562 Para 19 on page 1569 their Lordships of the Supreme Court, keeping in mind the provisions of Order XLI Rule 33 held that the appellate court can grant positive relief in favour of the respondent even though no cross-appeal or cross-objection was preferred by him. Similarly in Giani Ram v. Ramji Lal, AIR 1969 SC 1144 while interpreting Order XLI Rule 33 of the Code of Civil Procedure it was held in paragraph No. 8 as follows :- ".........The expression which ought to have been passed ' means ' which ought in law to have been passed. If the Appellate Court is of the view that any decree which ought in law to have been passed, but was in fact not passed by the Subordinate Court, it may pass or make such further or other decree or order as the justice of the case may require." In view of the aforesaid discussions about the scope of Order XLI (Forty One) Rule 33 CPC it becomes crystal clear that if some decree or order under the law could be passed in favour of the respondents even though they might not have preferred an appeal or cross-objection the Court has ample power to pass such a decree or make such order. 9. IN the present appeal Section 30 (2) of the Amending Act No. 68 of 1984 amended the provisions of Sections 23 (1) and added sub-section (1-A) to Section 23 of the Act and also amended Sections 23 (2) and 28 of the Act. Under section 23 (2) of the Act amount of solatium has been enhanced from fifteen per centum to thirty per centum. The rate of interest under section 28 of the Act has been enhanced from six per centum to nine per centum. The provisions of the Amending Act are restrospective. Under section 23 (2) of the Act amount of solatium has been enhanced from fifteen per centum to thirty per centum. The rate of interest under section 28 of the Act has been enhanced from six per centum to nine per centum. The provisions of the Amending Act are restrospective. This newly added sub-section 1-A) to Section 23 of the Act reads as follows :- "(1-A) IN addition to the market value of the land, the Court shall in every case award an amount calculated at the rate of twelve per centum per annum on such market value for the period commencing on and from the date of the publication of the notification under Sec. 4, sub-Section (1) in respect of .such land to the date of the award of the Collector or the date of taking possession of the land, whichever is earlier. Explanation :- IN computing the period referred to in this sub-section, any period or periods during which the proceedings for the acquisition of land were held up on account of any stay or injunction by the order of any Court shall be excluded." 10. IN Bagh Singh v. Union Territory of Chandigarh, AIR 1985 SC 1576 = 1985 AWC 861 it has been held by their Lordships of the Supreme Court that when the appeal was pending on the date when the Amendment Act came into force the claimants whose land had been acquired by notifications under section 4 (1) or section 6 of the Act, would be entitled to the enhanced rate of solatium under section 23 (2) of the Act and the enhanced rate of interest under Section 28 of the Act. It is better to refer to the actual observations as follows :- "It is, therefore, clear that under Sec. 30, sub-section (2) the provisions of the amended section 23, sub-section (2) and Section 28 are made applicable to all proceedings relating to compensation pending on 30th April 1982, or filed subsequent to that date, whether before the Collector or before the Court or the High Court or the Supreme Court, even if they have finally terminated before the enactment of the Amendment Act." In Smt. Shakuntalabai Krishna Bhoyer v. State of Maharashtra, AIR 1986 Bom. 308 a Division Bench of the Bombay High Court allowed the enhanced rate of twelve per centum, in view of Amendment Act of 1984, adding Sec. 23 (1-A) and to the enhanced rate of solatium an interest even in a Review application. 11. UNDER the circumstances of the case we feel that even though no appeal or cross-appeal or cross-objection has been preferred by the contesting respondents but they appear to be lawfully entitled, apart from the amount of compensation on the market rate, to a further amount calculated at the rate of twelve per centum per annum on such market value for the period commencing on and from the date of publication under section 4, sub-section (1) in respect of such land to the date of the award of the Collector or the date of taking possession of the land, whichever is earlier. Further, the respondents should be awarded enhanced solatium from fifteen per centum to thirty per centum under section 23 (2) and enhanced rate of interest from six per centum to nine per centum under section 28 of the Act on the amount awarded as compensation of the land acquired. See also State of U. P. v. Smt. Begam Saleha Hadi Hasan, 1986 AWC 301 at page 306 para 21 (DB) ; Collector Varanasi v. Baba Niranjan Das, 1986 AWC 54 paras 2, 3, 4 (DB). 12. IN view of the discussions made hereinbefore, the present appeal by the State of U. P. succeeds in part only. The judgment and order of the District Judge under appeal is partly set aside to the extent that no solatium should be awarded to the respondents on the price of trees and the crops. The respondents are, however, entitled for the additional sum of twelve per centum on the amount of compensation for land, calculated in view of the provisions of Section 23 (1-A) of the Act, and to an enhanced amount of solatium at the rate of thirty per centum in view of Amended provisions of Section 23 (2) of the Act, out of which fifteen per centum has already been awarded, hence only additional sum of solatium at the rate of fifteen per centum on the amount of compensation would be payable. The respondents are further entitled to an enhanced rate of nine per centum interest, whereas the interest at the rate of six per centum has already been awarded, hence only additional three per centum would be payable in view of Amendment under Section 28. We direct the District Judge to calculate it and pass suitable orders in view of the observations made above. IN view of the success and failure in part we refrain from making any order as to costs.