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2014 DIGILAW 3363 (ALL)

KRISHI UTPADAN MANDI SAMITI, MORADABAD v. CHANGU

2014-11-12

DINESH GUPTA, RAJIV SHARMA

body2014
JUDGMENT By the Court.—The instant first appeal arises out of the judgment and order dated 29.4.1989 passed by Ist Additional District Judge, Moradabad in L.A. Reference No. 69 of 1983, whereby the Court below allowed the reference with the following directions : “it is ordered that the claimants shall get compensation for the land acquired @64/- per square metre. The claimants shall further get 30% as solatium on the amount of compensation awarded to them. The claimants will also get interest @9% per annum from 10.7.77 upto the date of payment on the excess amount of compensation awarded. Let the copy of this judgment placed on the record of L.A.R. 66/83, L.A.R. 62/83 and L.A.R. 24/87.” 2. Heard Mr. B.D. Madhyan, learned Senior Counsel, appearing on behalf of the appellant, learned Standing Counsel and Mr. Vinod Sinha, counsel for the respondent No. 1. 3. Shorn off unnecessary details the facts of the case are as under : 4. The land of the respondent No. 1-Changu, measuring 4-40 acres situated at Majhola, Tehsil Moradabad, district Moradabad was acquired by the State of U.P. for the purpose of constructing market yard in Kisan Utpadan Mandi Samiti, Moradabad. Notifications under Sections 4 and 6 of the Land Acquisition Act were issued on the same day i.e. on 14.5.1977. The possession of the land in question was taken on 10.7.1977. The District Land Acquisition Officer, vide award dated 9.8.1982, after taking into consideration the various sale-deeds and on accepting the sale-deed executed by one Udai in favour of Pritam dated 18.1.1977, awarded compensation @ 15.75 per square yard. 5. Not being satisfied with the amount of compensation awarded vide award dated 9.8.1982, a reference, bearing L.A. Reference No. 69 of 1983, under Section 18 of the Land Acquisition Act, was made on the grounds that though claimant’s plot No. 695 had an area of 1.61 acre and the entire plot was acquired but the compensation had been paid to him for 1.50 acres of the said land. The Reference Court, after taking into consideration the pleadings of the parties, framed four issues, which are as under : “(1) What is the class of the soil of the land of the objector which has been acquired by Krishi Utpadan Mandi Samiti ? (2) Whether the land of the objector is situate within the Municipal limits of the town of Moradabad ? (2) Whether the land of the objector is situate within the Municipal limits of the town of Moradabad ? If so has it any potential value ? (3) What should be market rate per square yard of the land of the objector? (4) What amount of compensation is objector entitled ? 6. Apart from the above issues, one additional issue was also framed after filing additional written statement, which is as under : “(5) Whether the claim petition is barred by time ? 7. It is not in dispute that on identical issues, two other references, bearing No. 62 of 1983 : Shera Singh v. Krishi Utpadan Mandi Samiti and others, and No. 24 of 1987 : Ram Autar and others v. Krishi Utpadan Mandi Samiti and another, were filed. The Reference Court, on the request of the parties, had consolidated the aforesaid references and made leading case i.e. L.A. Reference No. 69 of 1983 and decided all the references by a common impugned order, whereby the Reference Court allowed all the references and directed to pay compensation to the claimants @ Rs. 64/- per square meter together with 30% as solatium as well as interest @ 9% per annum from 10.7.1977 up to the date of payment on the excess amount of compensation awarded. 8. Feeling aggrieved by the impugned judgment and order dated 29.4.1989, the appellant has preferred the instant first appeal. 9. It is pertinent to mention here that as stated hereinabove, the instant first appeal arises only against the judgment and order dated 29.4.1989 passed in L.A. Reference No. 69 of 1983 but during the course of hearing, a specific query was put to the learned Counsel for the appellant as to whether against the judgment and order dated 29.4.1989 passed in connected references i.e. 62 of 1983 and 24 of 1987, any appeal is pending disposal before this Court, to which learned Counsel for the appellant submits that he has no knowledge about this fact. It seems that judgment and order dated 29.4.1989 passed in L.A. Reference Nos. 62 of 1983 and 24 of 1987, has attained finality. 10. Mr. It seems that judgment and order dated 29.4.1989 passed in L.A. Reference Nos. 62 of 1983 and 24 of 1987, has attained finality. 10. Mr. B.D. Madhyan, Senior Advocate, appearing on behalf of the appellant submits that though the reference so made was barred by time but the reference Court, while deciding issue No. 5, erred in holding that reference was not barred by time on the ground that the Collector has made the reference, therefore, it could not be treated as barred by time. His submission is that the aforesaid finding so given by the reference Court is erroneous for the reason that the law of limitation is not dependent upon the reference made by the Collector and further the reference could only be made within a period of six weeks and beyond six weeks, reference be dismissed on the ground of delay. He has further submitted that once the limitation starts, it cannot be ineffective by any act of the Collector as there is no such provision under the law of limitation that the delay in forwarding the reference would be excluded. 11. To strengthen his arguments, Mr. Madhyan has placed reliance upon the judgment of the Apex Court in The Officer on Special Duty (Land Acquisition) and another v. Shah Manilal Chandulal etc., JT 1996 (2) SC 278, Sakuru v. Tanaji, AIR 1985 SC 1279 , Popat Bahiru Govardhane and others v. Special Land Acquisition Officer and another, (2013) 10 SCC 765 and judgment of Full Bench of this Court in State of Uttar Pradesh through the Collector, Naini Tal v. Sri Abdul Karim, AIR 1963 All 556 . 12. The next submission of the learned Senior Counsel appearing on behalf of the appellant is that though the Land Acquisition Officer has correctly fixed the valuation at the rate of Rs. 15.75 per square yard after deducting the amount by 25%, whereas the Additional District Judge had enhanced the amount merely on the basis of earlier judgment rendered by the learned District Judge while he had to decide it independently on the basis of the evidence adduced before him. He submits that even for the sake of arguments, if it is assumed that the judgment of learned District Judge could be made as a basis even then, it was mandatory to reduce 1/3rd or 1/4th of the amount assessed. He submits that even for the sake of arguments, if it is assumed that the judgment of learned District Judge could be made as a basis even then, it was mandatory to reduce 1/3rd or 1/4th of the amount assessed. He submits that the exemplars filed on behalf of the claimants were in respect of very small piece of land and that too the sale-deeds were prior to the date of Notification under Section 4 of the Act, therefore, that could not be treated as correct exemplar. Thus, the conclusion arrived at by the learned District Judge in fixing the valuation at Rs. 64/- per square metre is based on no evidence. 13. It has been contended that the Land Acquisition Officer had considered various sale-deeds as exemplars while determining the compensation, whereas the learned Additional District Judge had considered only two sale-deeds filed by the claimants and he had not adverted to other exemplars which were before the Land Acquisition Officer. 14. Learned Senior Counsel for the appellants has contended that the Reference Court had wrongly held that it had got potential value of being abadi site, whereas it was recorded as agricultural holding and was being used for agricultural purposes. Therefore, the valuation should have been assessed on the basis of the character and nature of the soil and as such, the view taken by the reference Court in this regard is manifestly erroneous. 15. It has been contended that while assessing the compensation, learned Additional District Judge had not taken into consideration the plus and minus factors in the acquisition like the present one, wherein considerable land would be utilized for constructing public utilities like road, parks and sites and much of the land would be lost in development of the land and the development would also take considerable time. Therefore, while determining the compensation, these factors ought to have been taken into consideration by the Reference Court. 16. Therefore, while determining the compensation, these factors ought to have been taken into consideration by the Reference Court. 16. To strengthen his arguments, he relied upon the judgment of the Apex Court in The Land Acquisition Officer Kammarapally Village, Nizamabad District, Andhra Pradesh v. Nookala Rajamallu and others, JT 2003 (9) SC 433, Krishi Utpadan Mandi Samiti, Sahaswan, District Badaun v. Bipin Kumar and another, 2004 (2) SCC 283 , Union of India v. Kehar Singh, 2003 (1) AWC 717 (SC), State of Haryana v. Ram Singh, JT 2001 (6) SC 8, Land Acquisition Officer & Mandal Revenue Officer v. V. Narasaiah, JT 2001 (3) SC 157, Administrator Genl. of West Bengal v. Collector, Varanasi, AIR 1988 SC 943 , Chimanlal Hargovinddas v. Special Land Acquisition Officer, Poona and another, AIR 1988 SC 1652 and The Collector, Raigarh v. Dr. Harisingh Thakur and another, AIR 1979 SC 472 . 17. Per contra, Mr. Vinod Sinha, counsel for the claimants/respondents submits that reference was not made beyond time by the claimants insofar as the award was pronounced by the District Land Acquisition Officer on 9.8.1982 without fixing any date or giving any notice to the claimants. On an inspection being done, they came to know about the aforesaid award dated 9.8.1982 on 5.10.1982 and immediately thereafter, claimants moved an application before the Collector on 18.10.1982. On the said application, the Collector made a reference under Section 18 of the Act. Therefore, the Reference Court, while dealing with issue No. 5 i.e. whether the claim petition is barred by time, has rightly held that reference is not barred by time. 18. So far as the contentions of the counsel for the appellants that the acquired land had no potential value, Mr. Sinha submits that while considering the nature of soil, the Reference Court had placed reliance upon the findings recorded by the Land Acquisition Officer viz. The class of soil is “Kachyana Dumat I”, “Dumat-II” and “Dankar-I” and all the land is irrigated and as such, the class of soil is very good for irrigation; the whole area had been treated as potential value being situated in the populated wing of the concerned locality and within the limits of Moradabad Municipality; the land is situated within five Kms. from the Central point of Moradabad Municipality; and on one side of the land acquired is a power house and on the other side, adjoining to it is a spinning mill and it is in populated wing of Mordabad city. On considering these findings recorded by the Land Acquisition Officer, the Reference Court came to the conclusion that the land has also potential value. Therefore, the contentions of the appellants that the land has no potential value as recorded by the Land Acquisition Officer and Reference Court, are contrary to record and as such, the same is liable to be rejected. 19. So far as the contentions of the counsel for the appellants that the Reference Court had erred in granting higher market value while passing the award, Mr. Sinha submits that this contention is also contrary to record insofar as from the side of the claimants, apart from various sale-deeds and two lists of circle rates of the locality of the acquired land, judgments passed in L.A.R. No. 98/87 : Smt. Krishna Devi v. State, decided on 17.11.1988, in L.A. R. 131/83 : Pradip Kumar v. Mandi Samiti, and L.A.R. 67/83 : Pyare v. Krishi Mandi Samiti, decided on 24.3.1989, had been produced by the claimants. The Reference Court, on considering all these documents/evidences, came to the conclusion that since all these judgments related to the land acquired for the market yard of Krishi Mandi Samiti by the same notification, therefore, the claimants are also entitled to get compensation @ 64/- per square metre. His submission is that the aforesaid findings of the Reference Court was based on the judgment rendered earlier in L.A.R. Nos. 67/83 and 131/83 and the judgments passed in both the said cases had attained finality. Therefore, the Reference Court has rightly awarded just and proper compensation to the claimants and there is no illegality and infirmity in the impugned award. 20. Before proceeding on merit, it would be apt to mention here that during the entire course of arguments, much emphasis has been laid by the learned Senior Counsel appearing on behalf of the appellants about the fact that though the claim petition is barred by time, but even then, the Reference Court proceeded with the matter and decided the issue with this regards against the appellants. Therefore, we think it appropriate to deal first as to whether the claim petition was barred by time or not. In order to appreciate this controversy in the appeal, the dates which are material need to be noted. (i) The award was passed on 9.8.1982; (ii) No notice was sent to the respondent about the pronouncement of the award; (iii) On enquiry, the respondent came to know about the award dated 9.8.1982 on 5.10.1982; (iv) Reference application was filed on 18.10.1982.” 21. At this juncture, it is necessary to refer to the provisions of Section 18 (2) of the Land Acquisition Act, 1894, which read as under : “18. Reference to Court.—(1) .......................... (2) The application shall state the grounds on which objection to the award is taken : Provided that every such application shall be made, — (a) if the person making it was present or represented before the Collector at the time when he made his award, within six weeks from the date of the Collector’s award; (b) in other cases within six weeks of the receipt of the notice from the Collector under Section 12, sub-section (2), or within six months from the date of the Collector’s award, whichever period shall first expire. 22. Adverting to the question of determination of date of fixing the knowledge of the award to the respondents, it would be seen that the respondents are contending that the knowledge of the details of the award rendered by S.L.A.O. is the date of receiving certified copy by them. In this context, it is to be seen Section 12(2) of the Land Acquisition Act, which reads as under— “12. Award of Collector when to be final. — (1) .......... (2) The Collector shall give immediate notice of his award to such of the persons interested as are not present personally or by their representatives when the award is made.” 23. As already pointed out above, the period of limitation as required under Section 18(2) of the L.A. Act would be for six weeks starting from the date of receipt of the notice from the Collector under Section 12 sub-section (2) of the Act. Therefore, once the notice under Section 12(2) of the L.A. Act is received, the period of limitation would start from that date. Therefore, once the notice under Section 12(2) of the L.A. Act is received, the period of limitation would start from that date. In the instant case, there is a definite stand of the respondents in para-1 of the application preferred under Section 18 of the Act that on inspection of the file on 5.10.1982, respondents came to know about the award dated 9.8.1982, which was not delivered in open Court nor any notice to this effect was sent to the respondents/claimants. This assertion of the respondents/claimants was denied by the appellants in their written statement only by stating that the assertion made in para-1 of the application preferred under Section 18 of the Act is not correct and vague but in support of this assertion, appellants have not stated anything in the written statements rather before this Court about the fact that the notice for pronouncement of the award dated 9.8.1982 was served/sent to the respondents/claimants or the award dated 9.8.1982 was pronounced in an open Court. Learned Senior Counsel appearing on behalf of the appellants has also failed to establish or show any documentary evidence with regards to the fact that whether notice for pronouncement of the award dated 9.8.1982 was served/sent to the respondents. 24. In Raja Harish Chandra Raj Singh v. The Deputy Land Acquisition Officer and another, AIR 1961 SC 1500 ; the Apex Court examined the question regarding date of pronouncement of award and observed as under : “(6). There is yet another point which leads to the same conclusion. If the award is treated as an administrative decision taken by the Collector in the matter of the valuation of the property sought to be acquired it is clear that the said decision ultimately affects the rights of the owner of the property and in that sense, like all decisions which affect persons, it is essentially fair and just that the said decision should be communicated to the said party. The knowledge of the party affected by such a decision, either actual or constructive, is an essential element which must be satisfied before the decision can be brought into force. The knowledge of the party affected by such a decision, either actual or constructive, is an essential element which must be satisfied before the decision can be brought into force. Thus considered the making of the award cannot consist merely in the physical act of writing the award or signing it or even filing it in the office of the Collector; it must involve the communication of the said award to the party concerned either actually or constructively. If the award is pronounced in the presence of the party whose rights are affected by it, it can be said to be made when pronounced. If the date for the pronouncement of the award is communicated to the party and it is accordingly pronounced on the date previously announced, the award is said to be communicated to the said party even if the said party is not actually present on the date of its pronouncement. Similarly, if without notice of the date of its pronouncement an award is pronounced and a party is not present, the award can be said to be made when it is communicated to the party later. The knowledge of the party affected by the award, either actual or constructive, being an essential requirement of fair play and natural justice, the expression “the date of the award” used in the proviso must mean the date when the award is either communicated to the party or is known by him either actually or constructively. In our opinion, therefore, it would be unreasonable to construe the words “from the date of the Collector’s award” used in the proviso to Section 18 in a literal or mechanical way”. 25. In a subsequent decision i.e. State of Punjab v. Mst. Qaisar Jehan Begum and another, AIR 1963 SC 1604 ; the Apex Court propounded as under : “A liberal and mechanical construction of the words “six months from the date of the Collector’s award’ occurring in the second part of cl.(b) of the proviso would not be appropriate and the knowledge of the party affected by the award, either actual or constructive, being an essential requirement of fair play and natural justice, the expression used in the proviso must mean the date when the award is either communicated to the party or is know by him either actually or constructively. Where the award was never communicated to the party, the question is when did the party know the award either actually or constructively. Knowledge of the award does not mean a mere knowledge of the fact that an award has been made. The knowledge must relate to the essential contents of the award. These contents may be known either actually or constructively. If the award is communicated to a party under S. 12(2) of the Act, the party must be obviously fixed with knowledge of the contents of the award whether he reads it or not. Similarly when a party is present in the Court either personally or through his representative when the award is made by the Collector, it must be presumed that he knows the contents of the award. Having regard to the scheme of the Act knowledge of the award must mean knowledge of the essential contents of the award.” 26. In the absence of any evidence, the assertion of the claimant-respondent appears to be true. Therefore, the period of limitation as provided under Section 18(2) of six weeks of the Act would start from the date of the knowledge and not from the date of declaration of the award by S.L.A.O. or the Collector. One cannot lost sight of the law laid down by the Apex Court in Mahadeo Bajirao Patil v. State of Maharashtra and others, 2007 (7) SCC 440; wherein it has been observed by the Apex Court that it is not necessary that the notice should contain all the details of the award including the consideration by the Land Acquisition Officer and its manner of determination of the compensation, no particular form is prescribed by the Act or the Rules and even the telegram of intimation that the award has been passed was held to be sufficient notice under Section 12(2) of the L.A. Act for starting the period of limitation under Section 18(2) of the said Act. The aforesaid decision of the Apex Court strengthen our view that the period of limitation would start from the date of knowledge i.e. from 5.10.1982 when on inspection of record, the claimants knew that the award has already been pronounced. 27. Admittedly, the reference is filed on 19.10.1982. The aforesaid decision of the Apex Court strengthen our view that the period of limitation would start from the date of knowledge i.e. from 5.10.1982 when on inspection of record, the claimants knew that the award has already been pronounced. 27. Admittedly, the reference is filed on 19.10.1982. We have already pointed out that the period for obtaining certified copy cannot be excluded while computing the period of limitation under Section 18(2) of the Land Acquisition Act. The authorities referred by the learned counsel for appellants cannot help them in view of the above and as such, when such period is not excluded, for calculating the period of limitation, as required under Section 18(2) of the L.A. Act, this reference would not clearly be barred by limitation. The learned Reference Court has taken the right view on this aspect of the matter and therefore, the conclusion reached by the learned Reference Court cannot be said to be faulty. 28. Now, we come to the other contentions of the learned Senior Counsel appearing on behalf of the appellants that the Reference Court erred in holding that the acquired land has potential value though the same was the agricultural land and the Reference Court has not applied correct exemplars as well as deductions on the amount of compensation in the instant case. 29. First question that emerges is what would be the reasonable market value which the acquired lands are capable of fetching. While fixing the market value of the acquired land, the Land Acquisition Officer is required to keep in mind the following factors : (i) existing geographical situation of the land; (ii) existing use of the land; (iii) already available advantages, like proximity to National or State Highway or road and/or developed area and (iv) market value of other land situated in the same locality/village/area or adjacent or very near to the acquired land. 30. The standard method of determination of the market value of any acquired land is by the valuer evaluating the land on the date of valuation publication of notification under Section 4(1) of the Act, acting as a hypothetical purchaser willing to purchase the land in open market at the prevailing price on that day, from a seller willing to sell such land at a reasonable price. Thus, the market value is determined with reference to the open market sale of comparable land in the neighbourhood, by a willing seller to a willing buyer, on or before the date of preliminary notification, as that would give a fair indication of the market value. 31. We would like to point out that as regards the potentiality of the land, the Reference Court has recorded a finding that the land is situated in the populated wing of the concerned locality and falls within the municipal limit of district Moradabad. The Reference Court has observed that in evidence, it has come on record that on one side of the land, there is a power house and on the other side, adjoining to the land in question, there is a spinning mill. Therefore, it has been held that the land has potential value. Apart from it, after evidence, it was also found that the soil of the land was also very good condition. 32. In the instant case, it is not in dispute that L.A.R. No. 67/83 : Pyare v. Krishi Mandi Samiti, decided on 24.3.1989 and L.A.R. No. 131 of 1983 : Pradip Kumar v. Mandi Samiti, related to the land acquired for the market yard of Kirshi Mandi Samiti, wherein compensation to the claimants was granted @ Rs. 64/- per Square metre. Therefore, giving parity to the claimants/respondents herein, the Reference Court granted compensation @ 64/- per square metres. During the course of the arguments, counsel for the appellants has stated that he has no knowledge whether the judgment passed by the reference Court in both the above appeals have been challenged before this Court or not. Therefore, it can easily be presumed that the judgment and order passed by the reference Court earlier had attained finality. Thus, we are of the considered view that there is no illegality and infirmity in the impugned award passed by the Reference Court, which is based on cogent findings based on proper appreciation of evidence on record. 33. For the reasons aforesaid, the appeal is dismissed. The claimants shall be entitled for the solatium and interest as awarded by the Reference Court. The entire amount after adjusting the amount, if any, paid earlier to the claimants shall be paid within a maximum period of four months from the date of receipt a certified copy of this order. 34. For the reasons aforesaid, the appeal is dismissed. The claimants shall be entitled for the solatium and interest as awarded by the Reference Court. The entire amount after adjusting the amount, if any, paid earlier to the claimants shall be paid within a maximum period of four months from the date of receipt a certified copy of this order. 34. Under the facts and circumstances of the case, there is no order as to costs. —————