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2012 DIGILAW 557 (ALL)

Collector, Mirzapur v. Dayal Das

2012-03-01

SANJAY MISRA

body2012
Sanjay Misra, J.;- These are two connected First Appeals. The First Appeal No.1076 of 1990 has been filed by the Collector, Mirzapur, under Section 54 of the Land Acquisition Act against the judgment dated 17.07.1990 passed in Land Acquisition Reference No.11 of 1985 (Dayal Das Vs. Collector, Mirzapur) arising out of the award dated 10.02.1982 given by the Special Land Acquisition Officer, Varanasi. The relief sought is that the judgment dated 17.07.1990 be set aside and the award dated 10.02.1982 be restored. The First Appeal No.305 of 2001 has been filed by Dayal Das (substituted by L/R's) under Section 54 read with Section 35(3) of the Land Acquisition Act against the judgment dated 17.07.1990 passed in Land Acquisition Reference No.11 of 1985 (Dayal Das Vs. Collector, Mirzapur) arising out of proceedings of temporary occupation of land under Section 35 of the Land Acquisition Act. The relief sought is that the judgment dated 17.07.1990 be set aside in so far as it has disallowed the claim of the appellant and the appellant be awarded compensation at the rate of Rs.5000/- per bigha for temporary occupation of his land and damages of Rs.10,000/- per bigha for filling the land wherefrom earth was dug out by the respondent. Sri Sirish Chandra, learned Standing Counsel appearing for the Collector, Mirzapur has submitted that an order dated 25.10.1974 under Section 35 of the Act was passed for temporary acquisition of 62 bigha 1 biswa 4 dhur land in village Baroga, Pargana Kantit, Tehsil and District Mirzapur for construction of approach road to the Railway over bridge. Notices were issued on 11.11.1974 inviting objections. Upon considering the objections the Special Land Acquisition Officer by the award dated 10.02.1982 awarded Rs.360/- per year per bigha i.e. Rs.1080 per bigha for three years as compensation for temporary acquisition and also provided that in case there is permanent damage to the land then separate compensation will be given at the time the land is being returned. Dayal Das was found recorded in column 9 hence the compensation for such plots was made payable to him totalling Rs.67,024.80p. Dayal Das was found recorded in column 9 hence the compensation for such plots was made payable to him totalling Rs.67,024.80p. According to learned Standing Counsel the Special Land Acquisition Officer sent a reference under Section 35(3) of the Act whereupon the L.A.R. No.11 of 1985 has been decided awarding compensation of Rs.2,32,300/- for 28 bigha 8 biswa 10 dhur which is in addition to the compensation already paid by the order dated 10.02.1982. A further interest at the rate of 12% per annum. On the excess amount w.e.f. 2.10.1974 and 12% per annum on Rs.23,525.10p w.e.f. 25.10.1974 to 09.02.1982 and interest at the rate of 12% per annum on the principal excess sum of Rs.1,70,550/- w.e.f. 25.10.1977 upto date of deposit in Court. The submission of learned Standing Counsel is confined to the award of interest. He argues that in cases where solatium under Section 23 of the Act is not payable then interest on the compensation cannot be paid. In the present case the compensation is paid under Section 35 of the Act hence no solatium under Section 23 of the Act is payable nor demanded hence the award of interest is illegal and liable to be set aside. He has placed reliance on a decision of the Supreme Court in the case of Brij Behari Sahai Vs. State of U.P. reported in 1986 ALJ 1067. While contesting the Appeal filed by Dayal Das (since deceased through LR's) he states that the land in question had earlier been temporarily acquired for the same purpose and in L.A.R. No.77 of 1975 it was held that there was no brick kiln on the land, there was no stock of bricks lying on the land nor any apparatus of a brick kiln was in existence on the land hence no compensation was awarded then and since the present acquisition has taken place even before the land was returned hence the claim for compensation on those counts made now cannot be granted. Sri H.N. Singh, learned counsel for the claimant has argued on the quantum of compensation and claims enhancement for the reason that the land has been rendered incapable for agricultural use due to removal of earth upto 20-25 feet in depth. He also presses his claim for loss and damages that occurred to his brick kiln, its apparatus and profits. Sri H.N. Singh, learned counsel for the claimant has argued on the quantum of compensation and claims enhancement for the reason that the land has been rendered incapable for agricultural use due to removal of earth upto 20-25 feet in depth. He also presses his claim for loss and damages that occurred to his brick kiln, its apparatus and profits. It has been brought to the notice of the court that in the earlier temporary acquisition LAR No.77 No.1975 (Dayal Das Vs. Collector, Mirzapur) of the very same land a First Appeal No.562 of 1980 (Dayal Das Vs. State of U.P.) was filed which has since been decided on 10.04.2008 by the High Court. A copy of the judgment dated 10.04.2008 has been produced. A perusal whereof indicates that the High Court had modified the damages awarded and had awarded it for full seven years instead of three years. The same is quoted hereunder:- "Accordingly finding of the court below in respect of rate of damages and cost of filling earth and depth upto which earth was dug by P.W.D. are confirmed. However, the impugned judgment is modified to the extent that the damages awarded by the court below for three years should be awarded for full seven years, the period for which land in dispute was retained by the P.W.D. Area of the land multiplied by 200 and then by 7 (34.5 x 200 x 7) comes to Rs.48300/-. Accordingly appellant is entitled to an additional amount of Rs.27600/- which is the figure arrived at by multiplying 34.5 by 200 and then by 4 (4 is the figure of years for which no damages were awarded by the court below). Accordingly, First Appeal is allowed in part and it is held that appellant is entitled to additional amount of Rs.27600/- alongwith interest at the rate awarded by the court below." Clearly, under the order dated 10.04.2008 the claimant has been awarded damages for a period of seven years against the State for retaining the land i.e. from the date of the earlier acquisition. On the issue of amount payable for filling earth the court affirmed the award of the Reference Court and held that an average of 3 feet deep earth was dug from the plot. On the issue of amount payable for filling earth the court affirmed the award of the Reference Court and held that an average of 3 feet deep earth was dug from the plot. The relevant paragraphs of the judgment are quoted hereunder:- "Before the court below as well as this court strong reliance was placed by the learned counsel for the appellant to a letter written by Prithviraj, Land Acquisition Officer to Executive Engineer P.W.D. Mirzapur, dated 8.12.1972. In the said letter it was stated that on the request of the appellant he visited the acquired land and found that on one spot earth had been dug upto the depth of 8 feet. The learned District Judge rightly held that the said letter referred only to one spot. It is quite possible that at some place earth may have been dug to a deeper level and at other places to a lessor level. However learned District Judge had awarded the uniform rate for 3 feet for the entire land. Accordingly I do no find least error either factual or legal in the finding that 3 feet deep earth from the entire acquired plot was dug. As far as cost of filing the earth is concerned, appellant had stated that Rs.27,000/- per bigha was acquired for the said purpose. In the objections appellant claimed only Rs.3000/- per bigha as cost of filling up the earth upto the depth of two feet. Before the court below an amendment was sought claiming damages at the rate of Rs.13,250/- per bigha for filling up the earth to the death of two feet. Learned District Judge rightly held that claimant could not claim more than what he claimed before S.L.O. The learned District Judge determined the rates for filling up the earth on the basis of rates fixed for the said purpose by Public Works Department at the relevant time i.e. 1973. According to the said rates for filling up earth upto the depth of two feet in one bigha cost of Rs.1000/- was required. Engineers of Public Works Department also deposed to that effect. However, learned District Judge granted higher amount for filling up the earth for two reasons. According to the said rates for filling up earth upto the depth of two feet in one bigha cost of Rs.1000/- was required. Engineers of Public Works Department also deposed to that effect. However, learned District Judge granted higher amount for filling up the earth for two reasons. Firstly in the rates of P.W.D. cost of earth was not included and secondly in the said rates it was presumed that earth would be brought from a distance of 30 feet while in respect of land in dispute, learned District Judge held that earth would have to be brought from a distance of at least one kilometre. Accordingly learned District Judge held that Rs.1500/- per bigha would be required for filling up earth upto two feet and accordingly for three feet depth Rs.2250/- pre bigha was awarded. I fully agree with the finding of the learned District Judge in this regard." On the pleadings of the parties the Reference Court framed the following issues:- 1. Whether claim of the claimant for compensation with respect to closure of the brick kiln and Chimani is barred by the principle of resjudicata in view of the decision of Land Acquisition Case No.77/75. If so its effect? 2. Whether in LA Case No.77/75, the claimant had claimed compensation for expanses incurred in shifting from the land his brick? If so its effect? 3. Whether the claim of the claimant with respect to the item stated in para 3 of the application for reference is barred by resjudicata? 4. What is the amount of compensation, if any to which claimant is entitled? 5. Whether the Opposite Party have delivered the possession of land in suit to the claimant as alleged? If yes, its date? At the time the Reference Court decided the reference the First Appeal N.562 of 1980 arising out of the earlier L.A.R. No.77 of 1975 was pending before the High Court. That First Appeal has now been decided by the High Court vide judgment dated 10.04.2008. The finding on the issue regarding compensation for closure of the brick kiln due to the earlier temporary acquisition given in L.A.R. No.77 of 1995 was confirmed by the High Court in that First Appeal. In the present proceedings the Issue No.1 is also for compensation for closure of the brick kiln due to the present temporary acquisition. The finding on the issue regarding compensation for closure of the brick kiln due to the earlier temporary acquisition given in L.A.R. No.77 of 1995 was confirmed by the High Court in that First Appeal. In the present proceedings the Issue No.1 is also for compensation for closure of the brick kiln due to the present temporary acquisition. The Court below considered the evidence lead by the claimant and held that there was no evidence of running of a brick kiln over the land in question. The evidence lead by the acquiring body also proved that there was no brick kiln on the land. The issue was decided against the claimant. In this First Appeal there is no other evidence on record to hold that a brick kiln was existing or running on the land at the time of notification under Section 35 of the Act. On Issue No.2 it has been held that there was no stock of bricks or apparatus of a brick kiln lying on the land on the relevant date hence there can be no expenses incurred by the claimant for alleged shifting of the bricks and apparatus. There is no evidence on record so as to find the claim of the claimant genuine. When there was no stock or apparatus on the land which was already under temporarily acquisition from much before the present notification under Section 35 of the Act then the claim of compensation on account of shifting was false and could not be allowed. The Issue No.2 has been property decided and requires no interference. There is no evidence of expenses incurred on shifting and there is no evidence that stock and apparatus was lying on the land. In view of the findings recorded on Issues No.1 & 2, the Issue No.3 has also been decided against the claimant. Since there existed nothing on the land then the claim that the materials lying thereupon rotted was quite untenable. The claimant has not brought any evidence in support of this issue therefore in this First Appeal no other view can be taken and it is held that the finding of the Court below is in accordance with facts and law. Since there existed nothing on the land then the claim that the materials lying thereupon rotted was quite untenable. The claimant has not brought any evidence in support of this issue therefore in this First Appeal no other view can be taken and it is held that the finding of the Court below is in accordance with facts and law. The Court below decided Issue No.5 in the following terms:- Issue No.5:- The land was acquired only for three years under the provisions of Section 35 to 37 temporarily acquisition of the land can be made for a maximum period of three years and not beyond that, on expiration of three years, the acquisition will come to an end and no formal delivery of possession is required. It is true that the claimant has given number of letters and reminders to authorities concerned for delivery of possession and formal delivery was not given to the claimant. But delivery of formal possession was also not required. Even if it is found that the O.P. was in possession of the land acquired after the expiry of three years also, then the possession of O.P. after the expiry of three years of acquisition becomes illegal and the claimant can claim compensation for illegal possession through a competent Court. Compensation for wrongful possession cannot be given by this Court which has only to enquire whether the compensation given for temporary acquisition for a period of three years is just and reasonable or not. Issue is decided accordingly. The above view of the Court below on Issue No.5 is in accordance with law and no serious challenge has been given to it. Even otherwise the Reference Court cannot go into the issue of wrongful possession beyond three years since these are proceedings under Section 35 of the Act. The Issue No.4 framed by the Court was as what is the entitlement of the claimant to amount of compensation, if any. While deciding the issue the Court below found that there are two kinds of compensation available which are under Section 35(3) of the Act for use and occupation of the land and for loss of profit for the period of three years during which the land was temporarily acquired by the State. While deciding the issue the Court below found that there are two kinds of compensation available which are under Section 35(3) of the Act for use and occupation of the land and for loss of profit for the period of three years during which the land was temporarily acquired by the State. The second compensation is payable under Section 36(2) of the Act for damage done to the land and it is payable on expiration of the temporary acquisition period. The Court below considered the report of the Tehsildar on the loss suffered due to temporary acquisition and the Tehsildar had reported it to be Rs.600/- per bigha but the Special Land Acquisition Officer had awarded compensation for loss @ Rs.1080/- per bigha. The oral evidence of the P.W.-1 stated that the income from the land used for agricultural purpose would be Rs.10,000/- per bigha whereas P.W.-2 stated that it would be Rs.11,000/- per bigha. However, none of the witnesses could give any detail of the income that could arise from the land in question. The Reference Court awarded Rs.1000/- per bigha per year as compensation. It found that 5 bigha 12 biswa of the land of the claimant was never temporarily acquired and there remained only an area of 28 bigha 8 biswa 10 dhoor which was the subject matter of the temporary acquisition. The claimant was found to be purchaser of the land in question and was recorded in the revenue records and therefore entitled to compensation for 28 bigha 8 biswa and 10 dhoor. While calculating the compensation as Rs.1000/- per bigha per year the Court found that it would be Rs.3000/- per bigha for three years and for 28 bigha 8 biswa 10 dhoor the compensation would be Rs.85275/-. The Court held that the compensation became due on 25.10.1974 when the possession was taken from the claimant and he would therefore also be entitled to interest on the same analogy as under Section 28 & 34 of the Act. The Reference Court therefore awarded @ 12% per annum as interest to be paid on the amount. It calculated the interest by recording that 23525.10p was paid on 10.02.1982 hence he would be entitled to get an additional amount of Rs.6174.90p and interest @ 12% per annum w.e.f 25.10.1974 till its payment. The Reference Court therefore awarded @ 12% per annum as interest to be paid on the amount. It calculated the interest by recording that 23525.10p was paid on 10.02.1982 hence he would be entitled to get an additional amount of Rs.6174.90p and interest @ 12% per annum w.e.f 25.10.1974 till its payment. It also held that the amount of Rs.23525.10p had became due on 25.10.1974 and no interest was paid, therefore, on this amount 12% interest is liable to be paid w.e.f 25.10.1974 to 09.02.1982. On the question of damage done to the land the Reference Court found that compensation is to be paid under Section 36(2) of the Act. No compensation for damage done to the land was paid and the Reference Court on the basis of earth taken out from the land held that the claimant would be entitled to be compensated @ Rs.6000/- per bigha for 28 bigha 8 biswa 10 dhoor totalling Rs.170550. It also held the claimant to be entitled to 12% interest per annum on the said amount. The acquisition has been made under Section 35 of the Act and this fact is not disputed by either of the parties. In the case of Brij Behari Sahai (supra) the Hon'ble Supreme Court held in paragraph 4 & 5 is as under:- "4. It is a fact that the High Court referred to S.23(2) of the Act while fixing the quantum of compensation. We are of the view that Part VI of the Land Acquisition Act contains a complete Code by itself so far as temporary occupation is concerned and provisions of S.23 are not attracted. Parts III, IV and V of the Act are connected with acquisition covered by Part II. Part VI on the other hand deals with temporary occupation of the land. In acquisition in exercise of the right of eminent domain title of the owner is extinguished and the property vests in the State. On the other hand, when temporary occupation is taken under Part VI of the Act the title remains untouched. It is the possession of the property which alone is taken over. In acquisition in exercise of the right of eminent domain title of the owner is extinguished and the property vests in the State. On the other hand, when temporary occupation is taken under Part VI of the Act the title remains untouched. It is the possession of the property which alone is taken over. Reference may be made to the proviso in S. 36(2) of the Act which contemplates that in a case where possession alone has been taken under S.35 but the land becomes permanently unfit to be used for the purposes for which it was used immediately before possession was taken, it is open to the owner of the property to require the appropriate Government to take steps for acquisition of the land. This itself is indicative of the position that when possession had been taken under S.35 of the Act it was not a case of acquisition under Part II thereof. 5. We agree with the view indicated in Tan Bug Taim v. Collector of Bombay, AIR 1946 Bom 216, that temporary occupation of land provided in part VI is distinct from, and is not included in acquisition of land. We have already pointed out that clause 'secondly' in S.23(1) of the Act is not applicable to temporary occupation covered by S.35 of the Act. Statutory solatium as provided in S.23(2) of the Act does not apply to a case of damage covered by clause 'secondly' in S.23(1) itself. 'Market value' occurs in the first clause of S.23(1) of the Act and sub-s.(2) of S.23 refers to market value. Solatium has reference to market value and the mandate to pay solatium is only in respect of market value. Compensation under S.35 of the Act has no reference to market value and the actual loss sustained by the persons interested in the land is intended to be compensated. In that view of the matter, to a case of compensation under S.35 of the Act the provisions of S.23(2) of the Act cannot be applied. The claimant is thus not entitled to any solatium on the compensation determined by the High Court in this case." In view of the aforesaid decision for the purpose of compensation under Section 35 of the Act the provisions of Section 23(2) of the Act cannot be applied and therefore the claimant will not be entitled to any solatium on the compensation. It also indicates that temporary occupation of the land is covered under Part-VI of the Act, where the title of the claimant remains untouched and only the possession has been taken over and in case the land becomes unfit for use for the purpose it was used before the possession was taken, it will be open for the owner of the property to require the Government to take steps for acquisition of the land and therefore when the land has been taken under Section 35 of the Act it is not a case of acquisition under Part-II of the Act. Under such circumstances, when admittedly the solatium is not payable then the interest which is otherwise payable alongwith solatium could not be paid when there is temporary acquisition of land where the title of the claimant remains untouched. In view of the aforesaid law, the submission of learned Standing Counsel in the appeal of the State with respect to illegal grant of interest by the Court below appears to be correct and to that extent the impugned award where it has made the claimant entitled to interest on compensation amount is liable to be set aside. Insofar as the submission of the claimant in his appeal for enhancement of compensation is concerned, there appears to be no further evidence led by the claimant on that point apart from that which has already been considered under the impugned judgment. The evidence was in the form of oral statement of P.W.-1 & P.W.-2. When these witnesses were cross examined they admitted that they are doing agricultural work in another State and not within the State of U.P. The agricultural income from the land in another State cannot be made the basis for determining the agricultural income within the State of U.P. and in the district of Mirzapur. Moreover, apart from the oral statement no documentary evidence was brought on record by the claimants to prove that the land was capable of giving Rs.10,000/- per bigha per year as profits of the land. In the absence of any evidence it could not be held that the loss suffered by the claimant was to the extent of Rs.10,000/- per bigha per year. The Special Land Acquisition Officer had considered the report of the Tehsildar on this issue, however, the Reference court enhanced the compensation @ Rs.1000/- per bigha per year. In the absence of any evidence it could not be held that the loss suffered by the claimant was to the extent of Rs.10,000/- per bigha per year. The Special Land Acquisition Officer had considered the report of the Tehsildar on this issue, however, the Reference court enhanced the compensation @ Rs.1000/- per bigha per year. No error can be found in the decision taken by the Reference Court inasmuch as there was no evidence whatsoever on behalf of the claimants which could establish that the land could yield profit of Rs.10,000/- per bigha per year. Therefore, the report of the Tehsildar that the loss would be @ Rs.600/- per bigha per year was not accepted by the Special Land Acquisition Officer and it was increased to Rs.1080/- per bigha. The Reference Court has considered the increase made the Special Land Acquisition Officer which was without any further evidence and has reduced it to Rs.1000/- per bigha per year which is more than Rs.600/- per bigha per year as reported by the Tehsildar. Under such circumstances, no case for enhancement of compensation has been made out by the claimant. There is no cogent evidence available on record to enable this Court to enhance the compensation in this First Appeal under Section 54 of the Land Acquisition Act. For the aforesaid reasons, the appeal for enhancement of compensation filed by the claimant requires to be dismissed. In view of the aforesaid circumstances, the First Appeal No.1076 of 1990 (Collector, Mirzapur Vs. Dayal Das) is partly allowed and the impugned judgment insofar as it has awarded 12% interest on the various amounts of compensation stands set aside. The award of compensation granted for temporary acquisition by the Reference Court, however, is upheld. The First Appeal No.305 of 2001 (Dayal Das Vs. Collector, Mirzapur) for enhancement of compensation is dismissed. Parties to bear their own costs.