State of U. P. v. Lala Dalip Singh Vaish — 1987 DIGILAW 185 (ALL)

JUDGMENT V.P. Mathur, J. - This appeal purporting to be under Section 381 of the 11. P. Nagar Mahapalika Act is directed against the judgment and decree passed on 30-5-1975 by Mr. P.N. Dubey, the then Presiding Officer, Nagar Mahapalika Tribunal II, Kanpur and is in respect of Reference No. 359 of 1971 under S. 18 of the Land Acquisition Act. 2. Briefly stated, the facts of the case were as follows : "229.10 Acres of land in village Kheora Banger was acquired through Award No. 31 dated 7-3-1968 in execution of Scheme No. XXXVIII known as "Brick Field-cum- Dairy and Poultry Farm and Orchard Green Belt Town Expansion Scheme"." The first notification under S. 53 of the Kanpur Urban Area Development Act, 1945 was published on3-9-1946. It was followed by a final notification issued under S. 60 of the Act on 26-3-1949. Petitioner L. Dalip Singh Vaish, who is now the respondent has his land in two khatas namely Khata No. 14 and Khata No. 17. In khata No. 14, his land was 2 bighas 12 biswas and in khata No. 17, there was one bigha ten biswas' land. Both these lands were acquired Subsequently, one bigha 2 biswas of khata No. 14 became subject matter of a writ petition and, therefore, the acquiring authorities ignored it, while determining the compensation for the same. 3. L. Dalip Singh claimed compensation before the Special Land Acquisition Officer at the rate of Rs. 4/- per sq. yard. The Special Land Acquisition Officer negatived his claim and found that this land fell in belt 'B' as it was a furlong away from the main. Grand Trunk Road. He determined the rate of Belt 'B' land at Rs. 1000/- per bigha. He also took note of the fact that the land of the petitioner was lying in a dug out condition, as there existed a brick kiln on it. Therefore, he reduced the compensation by ?rd of the value and determined a sum of Rs. 1973.73 payable to the petitioner in respect of the land of the two khatas for which compensation was being considered. It may again be made clear that in respect of 1 bigha 2 biswas land of khata No. 14 which is the subject matter of writ, no reference has been made. The solatium at the rate of 15 per cent was also refused. It may again be made clear that in respect of 1 bigha 2 biswas land of khata No. 14 which is the subject matter of writ, no reference has been made. The solatium at the rate of 15 per cent was also refused. Feeling aggrieved, the claimant Dalip Singh approached the Special Land Acquisition Officer to make a reference to the Tribunal and the matter therefore came up before the Tribunal. 4. On the pleadings of the parties, the Tribunal struck five issues for determination, as follows : 1. What was the fair market value of the acquired land on the relevant date? 2. Whether the compensation awarded by Special Land Acquisition Officer is excessive? If so, whether the same is liable to be reduced and to what extent? 3. Whether the claimant is entitled to solatium at the rate of 15% of the market value? 4. To what amount, if any, is the claimant entitled on account of delay in acquisition? 5. To what amount, if any, is the claimant entitled? The Tribunal decided issues Nos. 1, 2 and 4 together. It may be mentioned here that although according to S. 23 of the Land Acquisition Act, the relevant date for considering market value of the land is the date of publication of the notification under S. 4, but in view of the fact that there had been a long delay of about 22 years between the publication of notification under S. 4 and actual taking over of the land and payment of compensation, hence the Special Land Acquisition Officer as well as the learned Tribunal considered the exemplars of 1964- 65 for determination of the compensation. It was held after considering all the evidence on the record that compensation for 3 bighas 2 bis was land owned by the petitioner should be worked out at the rate of Rs. 1200/- per bigha. The total was assessed at Rs. 3720/-. 5. It was further held while disposing of Issue No. 3 that the claimant was entitled to solatium at the rate of 15% at the market value and the amount was calculated at Rs. 558/-. In this manner a total amount of Rs. 4278/- was found due to him. Out of this, a sum of Rs. 1973.37 had already been allowed to him, and therefore, he was further found entitled to Rs. 2304-63 P. by way of additional amount. 558/-. In this manner a total amount of Rs. 4278/- was found due to him. Out of this, a sum of Rs. 1973.37 had already been allowed to him, and therefore, he was further found entitled to Rs. 2304-63 P. by way of additional amount. Six per cent per annum interest from 27-5-1968 which is the date of possession till the date of payment of the amount by the Nagar Mahapalika, Kanpur was also granted. 6. The State contends that there was no justification for the Special Land Acquisition Officer and the Tribunal to deviate from the specific sub-section of S. 23(1) first and to consider the market value of the land, not on the date of publication of the notification under S. 4, but in the year 1964-65 and therefore, both the Authorities have proceeded on wrong premise. It is further contended that the delay that had happened, could at best have entitled the claimant to damages under S. 48 of the Land Acquisition Act and by accepting exemplar Ext. 6 as the basis for determination of the compensation, the Tribunal was not justified in accepting a part of it and rejecting the other part and thus indulging in double standards. Lastly it is contended that the reduction in the market rate on account of the fact that the land was laying in form of pits and had been dug out, should not have been reduced to th of the amount and should have been maintained at ?rd as was done by the Special Land Acquisition Officer. 7. It may be mentioned here that the learned counsel for the respondent-claimant has further raised a plea that his client was entitled to solatium at the enhanced rate of 30% on value and also to interest at the rate of 9%. Of course, in this respect no cross- objection has been filed and, therefore, we will have to consider whether in spite of this, the Court will be justified in carrying out the mandate of the law as is laid down by sub-sec. (2) of S. 23 of the Land Acquisition Act. 8. I will take this last point for decision first. Sub-section (2) of S. 23 says that in addition to the market value of the land, the Court shall in every case award a sum of 30% on such market value, inconsideration of the compulsory nature of the acquisition. (2) of S. 23 of the Land Acquisition Act. 8. I will take this last point for decision first. Sub-section (2) of S. 23 says that in addition to the market value of the land, the Court shall in every case award a sum of 30% on such market value, inconsideration of the compulsory nature of the acquisition. In the case of Rameshwar Dayal v. State of U.P., AIR 1986 All 81 , a Division Bench of this Court has come to the conclusion that in cases in which appeals are being heard by the High Court after the reinsertion of S. 23(2) by U.P. Act 23 of 1972 not only solatium will have to be awarded notwithstanding the fact that the notification under S. 4 of the Act was issued on 20-7-65, that is between the deletion and reinsertion of S. 23(2) in Uttar Pradesh in 1954 and 1972 respectively, it will have to be awarded at the rate of 30% in place of 15%. Likewise interest will have to be awarded at the rate of 9% in place of 6%. This decision follows the case of Kamalajammanniavaru v. Special Land Acquisition Officer, AIR 1985 SC 576 . 9. The argument advanced on behalf of the State that since this point was not raised by way of cross-objection and no court-fee has beer) paid, hence it cannot be considered in this Court, stands completely answered, by two Division Bench cases of this Court. In Collector, Varanasi v. Baba Niranjan Das, 1986 All WC 54 : 1986 All LJ 1155, it has been specifically held that in view of the provision of O. 41, R. 33, C.P.C. enhancement of amount of solatium and pendente lite and future interest, can be permitted even if no cross-objection is filed by the claimant in appeal filed by the State. The decision of the Supreme Court in the case of Bhag Singh v. Union Territory of Chandigarh, 1985 All WC 861 : AIR 1985 SC 1576 was the basis of this decision. The decision of the Supreme Court in the case of Bhag Singh v. Union Territory of Chandigarh, 1985 All WC 861 : AIR 1985 SC 1576 was the basis of this decision. Again another Division Bench of this Court in the matter of State of U.P. v. Raj Narain Singh, AIR 1986 All 321 took the .same view and held that relief under O. 41, R. 33, C.P.C. can be granted even in those cases where a cross-objection could have been filed, but has not been filed, if the circumstances justify granting relief under the said provision. In both the above cases the Court was sitting in matters connected with the Land Acquisition Act and in both the cases the original solatium granted at the rate of 15% was enhanced to 30% and the original interest pendente lite and future granted at 6% was raised to 9%. 10. So far as the matter of court-fees is concerned, the amount of increased compensation solatium and interest is really an amount of statutory compensation and. hence no court-fee on the same will be payable. Similar has been the view of the High Court of Bombay (Panaji Bench (Goa)) in the matter of Union of India v. Smt. Maria Olivia Carvalho, AIR 1986 Bom 1 . 11. Under these circumstances, even though cross-objection has not been filed in this appeal for one reason or the other, but since an oral plea has been taken that the amount of compensation should be made payable in accordance with the provisions of S. 23(2) of the Land Acquisition Act, it can be considered and the solatium as well as the interest can be enhanced. 12. This now brings us to the question whether it was legally open to the Special Land Acquisition Officer as well as to the Tribunal to take the position available in 1964-65 as the basis for determination of the compensation, when the first notification had been made on 3-9-1956. So far as the letter of the law is concerned, under S. 23(1) ,first the Court shall take into consideration the market value of the land on the date of the publication of the notification under S. 4. This cannot however, be universally applicable and there may be circumstances in which other consideration may weigh. So far as the letter of the law is concerned, under S. 23(1) ,first the Court shall take into consideration the market value of the land on the date of the publication of the notification under S. 4. This cannot however, be universally applicable and there may be circumstances in which other consideration may weigh. In view of sub-section (2) of S. 23, the Court has r. to award a sum of 30% on the market value, in consideration of the compulsory nature of the acquisition. Similarly, in view of sub- clause (1-A) an amount to be calculated at 12% per annum on the market value for the period commencing on and from the date of the publication of the notification under S. 4, up to the date of the award or the date of taking possession of the land has also to be given. In this case, undoubtedly almost 22 years passed between the date of the first notification and of the award. Section 48-A of the Nagar Mahapalika Adhiniyam clearly provides for damages on account of delayed acquisition. Considering all these facts and circumstances of the case together, in view of the long and inordinate delay, the petitioners did deserve a higher compensation than could be available, if the delay had not taken place. The learned Tribunal has rightly held that there were two ways out to assess the compensation. The first way was to proceed with the determination of the market rate of the land in 1945, to add to it additional amounts under S. 48-A of the Nagar Mahapalika Adhiniyam and S. 23(1- A) and come to a figure or to outright take into consideration the fact that the delay had been caused for no mistake of the claimant and he was entitled to consideration of the value of the land as it was available in the year 1964-65. The second option has been rightly exercised. It may also be mentioned here that the Special Land Acquisition Officer also took the same stand and the State did not move him for any reference to the Tribunal. It will not be open to the State to raise that plea when they had no grievance against it and did not take any steps to have the matter referred to the Tribunal. The reference has been made at the instance of the claimant. It will not be open to the State to raise that plea when they had no grievance against it and did not take any steps to have the matter referred to the Tribunal. The reference has been made at the instance of the claimant. Considering all the facts and circumstances of the case, I think that in special circumstances of the case, the basis for determination of the compensation was justified. 13. It is then contended that the exemplar which has been relied upon namely the Tribunal's judgment in the case of Mohan Lal v. State, Case No. 188 of 1971 (Ext. 6) was rightly considered but according to it, the value of the land should have been fixed at Rs. 1500/- and after deducting ?rd of the value Le. Rs. 500/- on account of the land being in the form of depression and pits. the fixation should have been at Rs. 1000/- per bigha. It is contended that no reason for differing with this assessment has been given and there is that acceptance of Ext. 6 and a part of it has been rejected. This is, not the position. According to Ext. 6, the land pertains to village Bisayakpur. It was 'B' belt land and Rs. 1500/- per bigha was fixed as the price. The learned Tribunal has, however, come to the conclusion that in the present case there should be an addition to the price, because while Bisyakpur was farther away from Grand Trunk Road the land presently in controversy is near at G.T. Road and although both belonged to 'B' category, the potentiality of the land in dispute for a building site is greater. For that reason, over. and above Rs. 1500/- which was fixed as per bigha price of the land at Bisyakpur, the land in dispute was found worth Rs. 1600/- per bigha. There is no application of double standard. 14. I am also not convinced of the argument of the learned counsel for the State that the depreciation should have been at the rate of ?rd and not th. In may opinion, the market value has been rightly fixed at Rs. 1200/- per bigha. The amount due will come to Rs. 3720/- and this has been rightly fixed as market value of the acquired land. 15. The claimant will now be entitled to solatium at the rate of 30% on this amount of Rs. In may opinion, the market value has been rightly fixed at Rs. 1200/- per bigha. The amount due will come to Rs. 3720/- and this has been rightly fixed as market value of the acquired land. 15. The claimant will now be entitled to solatium at the rate of 30% on this amount of Rs. 3720/-, in addition to interest at the rate of 9% per annum. The result will be that the appeal shall stand dismissed and on the amount due to the petitioner by way of market price of his land i.e. 3720/- he shall further get solatium at the rate of 30% instead of 15% awarded by the Tribunal and the claimant shall also be entitled to interest at the rate of 9% per annum from the date of acquisition till the date of deposit or payment of the money instead of 6%, which has been decreed by the Tribunal. If any payment has been made it shall be adjusted while determining the amount now payable to the respondent who will also be entitled to his costs. It is accordingly directed.