Mithlesh v. Collector Agra — 1990 DIGILAW 1272 (ALL)

JUDGMENT 1. These three appeals under section 54 of the Land Acquisition Act have been filed by the land owners whose land has been acquired by the U. P. Avas Evam Vikas Parishad for developing a housing accommodation cum street scheme popularly known as "trans Jamuna Grah 1sthan Evam Sarak Yojna, Agra" Necessary notices were issued under sections 28 and 32 of the U. P. Avas Evam Vikas Parishad Adhiniyam corresponding to sections 4 and 6 respectively of the Land Acquisition Act on 31-1-1970 and 21-8-1974. The award was made by the Special land acquisition Officer on 15-4-1978. He awarded compensation at the rate of Rs 7.50 for the land lying within 100 yards from the bye pass road, at the rate of Rs. 5/- in respect of next strip 100 yards wide and for the remaining land at the rate of Rs. 3.75 per sq. yard, possession over the land was delivered to the acquiring body on 27-4-1978. Aggrieved by the award given by the special land Acquisition Officer, the claimants filed applications before the collector for making reference to the Court under section 18 of the Land Acquisition Act and claimed that compensation should be awarded to them at the rate of Rs. 40/- per sq. yards. These references were decided by a common judgment by the Tribunal on 19-6-1985 and the compensation was awarded at a flat rate of Rs. 16.50 per sq. yard. 2. Before the Tribunal, the parties filed some documentary evidence and each of them examined one witness. The documentary evidence filed by the appellant consisted of three sale deeds and two awards in respect of land lying to the south of the bye pass road in respect of which compensation at the rate of Rs. 16.54 had been awarded. The three sale deeds are Exts. 6, 7 and 8 and were executed on 30-1-1970 and 19-1-70 respectively. The documentary evidence filed by the appellant consisted of three sale deeds and two awards in respect of land lying to the south of the bye pass road in respect of which compensation at the rate of Rs. 16.54 had been awarded. The three sale deeds are Exts. 6, 7 and 8 and were executed on 30-1-1970 and 19-1-70 respectively. The learned Tribunal first proceeded to consider the evidence regarding location of the land and having come to the conclusion that it was quite close to the Abadi of village Nariach and also quite near to the bye pass road and being situated within the limits of the Municipal Corporation where several residential localities and commercial areas have developed, it was held that the land was a potential building site and, therefore, compensation should be awarded not as an agricultural land but on the basis that it was a potential building site. This finding of the court below is not been seriously challenged by the respondents before us, while considering the evidence, in order to determine the market value of the land at the relevant time, the Tribunal took in not consideration the three sale deeds filed by the appellants and also the two awards given by the special land acquisition officer in respect of the land lying to the south of the bye pass road. By the sale deed ext. 6,100 sq. yards, land of plot no. 4385 was transferred at the rate of Rs. 25/- per sq. yard. The other sale deed Ext. 8 was also executed the same day by which only 24 sq. yards land was transferred at the rate of Rs. 41.67 per sq. yard. This sale deed Ext. 8 has rightly been rejected as it was in respect of a very small area and could not afford a proper exemplar for determining the market value of the land in the locality. The third sale deed Ext. 7 is again in respect of 200 sq. yards of land sold at the rate of Rs. 25/- per sq yard. Because of the smallness of the area sold under these sale deeds, the Tribunal did not accept any of these sale deeds as a proper examplar for determining the market value of the land. The Tribunal then relied upon the two awards which were in respect of the land which is situate on the bye pass road. Because of the smallness of the area sold under these sale deeds, the Tribunal did not accept any of these sale deeds as a proper examplar for determining the market value of the land. The Tribunal then relied upon the two awards which were in respect of the land which is situate on the bye pass road. Adopting the same rate which the special land acquisition officer had awarded under these awards i.e. Rs. 16.54 compensation for these land was also awarded at the rate of Rs 16.54 3. Sri B. D. Agarwal, learned counsel appearing for the appellant, has, however, vehemently attacked the decision of the Tribunal on the question of market value determined by it, His argument is that the sale deeds filed by the appellants have been totally rejected by the Tribunal without assigning any reason. According to him, the mere fact that the area sold under these sale deeds was very small did not necessarily lead to the conclusion that these sale deeds could not be taken as an exemplar at all. His submission was that the sale deeds should have been taken into consideration but the rate at which the land was sold could be reduced to some extent to afford an index of the market value of the land in the locality. His second grievance is that the Tribunal itself has found that the land lying to the south of the bye pass road was inferior in quality than the land to the north of the bye pass road as it was at a lower level and had pits therein, but it has wrongly held that this disadvantage is more than off set by the fact that the land covered by these awards abutted the main bye-pass road According to Sri Agarwal, the land covered by these awards (which incidentally has been marked by the learned counsel on the map by red colour and yellow colour and the copy of the Shajra map passed on to us for our convenience) would indicate that the land is of a irregular shape and only parts of it are abutting bye-pass road while a major portion of the land is far behind- The portion which is to the extreme south of the bye pass road, however appears to be quite close to the same Abadi. A perusal of the map will reveal that this land, although of a lower level, has certainly the advantage of being quite close to the bye-pass road, an advantage which the land under acquisition does not possess to the same degree. 4. It was also urged by Sri Agarwal that in respect of these awards references are already pending in the Court. There is, however, no material on the record to show this. The learned Standing counsel was also not in a position to make any categorical statement in this regard for want of information. It is, therefore, not possible for this Court to take the view that the matter is subjudice and the amount of compensation determined in these references has not become final. The burden lay on the appellants to show that these awards have not become final and had been challenged in references under section 18. The Tribunal, therefore, cannot be faulted for determining the market value of the land on the basis of these awards. As for the sale deed Ext. 7 it is in respect of a ridiculously small area of 27 sq yards and cannot afford a proper examplar. The other two sale deeds are for 100 sq. yards and 200 sq. yards and are in respect of portions of plots Nos. 4385 and 5074. Both these plots are situated to the south of the bye pass road and very close to the land involved in acquisition proceedings covered by the award Ext. 2. The land in question being on the other side of the bye pass road and comparatively away from the land which is subject in these two sale deeds, therefore, have rightly not being considered as proper exemplar by the Tribunal. On this point, we are in entire agreement with the reasonings adopted by the Tribunal. 5. The next point which has been urged by Sri Agarwal is regarding the award of interest. According to him, section 23 (1) (A) does not draw any power from transitional provisions contained in section 30 of the Amending Act. His submission was that on its own language, sub-section (1) (A) will apply in all cases where the court makes an award after the commencement of the Act It is not possible to agree with this submission particularly in the light of the two recent decisions of the Supreme Court. His submission was that on its own language, sub-section (1) (A) will apply in all cases where the court makes an award after the commencement of the Act It is not possible to agree with this submission particularly in the light of the two recent decisions of the Supreme Court. The earlier view taken by the Supreme Court in AIR 1985 SC 576 has now been superceded by another decision of the Supreme Court reported in AIR 1989 SC 1933 . In that case, the court was dealing with the question of solatium which according to sub section (2) of section 23 is also payable at an enhanced rate of 30% against the earlier rate of 15%. The question posed in that case was whether higher rate of solatium is payable in a case in which the award had been made before 30th April, 1982 or after 24th of January, 1984. The Supreme Court in that case took the view that the amending Act was not retrospective in operation, 30% solatium on the market value of the land is provided as a consideration for compulsory nature of acquisition for the purposes of determining the compensation for the loss. This is to be determined as on the date of the notification under section 4 (1) and cannot be related to any other date Since the amended section 23 (2) by itself is not retrospective in operation, it cannot ipso facto apply to awards in respect of acquisition proceedings commenced prior to 24th of September, 1984 It was on this reasoning that the provisions of section 23 (2) were held to be inapplicable to a case where the proceeding had been initiated prior to 24th September, 1984. 6. Precisely the same reasoning was adopted in Union of India v. Filip Tiago De Gama of Vadem Vasco De Gama, AIR 1990 SC 981 In that case, the notice under section 4 was published on 26th October, 1967 and the award was made on 5-3-1969 On a reference being made to the court under section 18 of the Land Acquisition Act, award by the Court was made on 28th May, 1985. Thus in that case the acquisition proceedings have been initiated prior to 30th April 1982 and the award of the Land Acquisition Officer had also been made prior to that. Thus in that case the acquisition proceedings have been initiated prior to 30th April 1982 and the award of the Land Acquisition Officer had also been made prior to that. The award of the Court only was made after the commencement of the Amending Act. In these circumstances, the Supreme Court held that the provisions of section 23 (1-A) shall not apply. The reasons which promoted the Supreme Court to take that view are couched in a language as narrated below : "Entitlement of additional amount provided under section 23 (1-A) depends upon the pendency of the acquisition proceedings as on 30th April, 1982 or commencement of acquisition proceedings after that date, section 30 sub-section (1) (a) (of the amending act) Added by this Court provides that the additional amount provided under section 23 (1-A) shall be applicable to acquisition proceedings pending before the Collector as on 30th of April 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 (1) (b) provides that section 23 (1-A) shall be applicable to every acquisition proceedings commenced after 30th of April 1982 irrespective of the fact whether the Collector has made an award or not before 24th September, 1984. The final point to note is that section 30 sub-section (1) does not refer to the court award and the court award is used only in section 30 sub-section (2)." In view of the decision of the Supreme Court, the position, therefore, is clear that since the present case does not fall within the provisions of section 23 (1-A) read with section 30 of the Amending Act 68 of 1984, the appellant are not entitled to any additional amount towards compensation based on certain percentage of interest on the market value determined by the Court. 7. Learned counsel for the appellant, however, submitted that a reference made to transitional provisions given in section 30 of the Amending Act is not at all called for as, on its own language, sub-section (1A) applies to every case in which an award is made by the Court. 7. Learned counsel for the appellant, however, submitted that a reference made to transitional provisions given in section 30 of the Amending Act is not at all called for as, on its own language, sub-section (1A) applies to every case in which an award is made by the Court. The submission of Sri Agarwal was that once the provisions has come on the Statute book on 24th September, 1984, it becomes the duty of every court while making the award to award 12% interest per annum on the market value determined by it for the period mentioned therein. According to him, this is not dependent on whether or not proceeding before the collector was pending at the relevant time He also drew our attention to the words "shall be deemed to have applied, also to, and in relation to" in section 30 of the Amending Act. According to the learned counsel these words only emphasise that apart from those cases where award is made after the amending Act was enforced which would be governed by section 23 (1A), the transitory provisions will also be attracted in certain other cases as mentioned in sub-clause (a) and (b) of section 30. This, according to him, is not in derogation of the power of the Court under section 23 (1A) but in addition and as an extension of that power Be that as it may, we are bound by the decision of the Supreme Court referred to above which is directly on the point and under Article 141 of the Constitution, we feel respectfully bound by it. In view of the present legal position, we find no merit in this submission of the counsel also. 8. Accordingly the appeal fails and is hereby dismissed but in the circumstances of the case the parties are directed to fend for their respective costs in this Court. Appeal dismissed.