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2014 DIGILAW 3422 (ALL)

Fekka v. State of U. P.

2014-11-17

ANIL KUMAR

body2014
JUDGMENT Anil Kumar, J. 1. Heard Sri V.K. Singh, learned Counsel for the appellant, Sri Ajay Kumar Singh, learned Counsel for respondents and perusal the record. Facts, in brief, of the present case are that in order to implement a scheme known as "Kanpur Road City Extension Scheme Part-I (Herein after referred to as 'Scheme') a notification under sections 4and 6 of the Land Acquisition Act have been issued on 24.8.1976 and 20.11.1976 respectively. In the said scheme, land of the appellants measuring 2 bigha, 5 bishwa and 18 bishwanshi was acquired and compensation of Rs. 0.68 paisa per sq. fit has been given by the competent authority. Aggrieved by the said fact, appellants filed a reference under section 18 of the Land Acquisition Act in the Court of IInd Additional District Judge, Lucknow registered as Land Acquisition Misc. Case No. 14 of 1982, Fekka and another v. State of U.P. and others. By an order dated 21.10.1982 compensation has been enhanced to Rs. 1/- sq. fit in respect to appellants' land (2 bighas, 15 bishwa and 18 bishwanshi equivalent to 76,093 sq. ft.) other relief as mentioned claimed therein were also granted. 2. Aggrieved by the said order, appellants filed the present first appeal under section 54 of the Land Acquisition Act read with section 96 of the Code of Civil Procedure. 3. Learned Counsel for the appellant submits that against the same notification under sections 4 and 6 of the Land Acquisition Act, the lands belongs to Faijaz Ahmad situate in same village has been acquired. Initially the competent authority has granted Rs. 0.68 per sq. ft. Thereafter by a reference under section 18 of the Land Acquisition Act, enhanced to Rs. 3/- per sq. ft. Lucknow Development Authority challenged the said order before this Court by filing First Appeal No. 76 of 2006, Lucknow Development Authority v. Faijaz Ahmad and others, dismissed by Judgment and order dated 28.4.2010. The said judgment is reported in 010 (28) LCD 1223, relevant portion is quoted as under: "Learned Counsel for the appellant has fairly submitted before this Court that with respect to the same notification and same award relating to the land situated in village Behsa, as in the case of respondents, the appellant had entered into agreements with some land owners for payment of compensation at the rate of Rs. 3/- per sq. ft. 3/- per sq. ft. The Tribunal, while dealing with the controversy, had framed issues covering all the points put forth before it for adjudication. The Tribunal had taken into account all the relevant factors which were necessary for assessing the market value and the quantum of compensation admissible to the land owners. Tribunal has dealt with various exemplars and had also taken into account the location of the land. The land in dispute was having all the necessary civic amenities and was well connected with the Highway as well as easily approachable. The exemplars which had been cited were taken into account. Scrutinizing these facts in the light of the recent decision of the Hon'ble Apex Court vide Judgment in Special Land Acquisition Officer, BYDA, Bangalkot v. Mohd. Hanif Sahib Bawa Sahi 2002 (47) ALR 320 (SC), it is amply clear that the Tribunal had carefully appreciated various factors and passed a well considered, reasoned and a speaking judgment, which in my opinion, does not require any interference. In view of the above, I am of the considered opinion that the market value fixed by the learned Tribunal with respect to the land in question was just and proper and was as per the market rate prevailing at that time. There is no infirmity and illegality in the impugned judgment. The appeal being devoid of merits is liable to be dismissed." 4. Sri V.K. Singh, learned Counsel for the appellants further submits that the said matter has attained finality as Lucknow Development Authority paid enhanced compensation to the claimants/Faijaz Khan, so the same benefit may also be given to the present appellants who are similarly situated to him. 5. Sri Ajay Kumar Singh, learned Counsel for the respondents does not dispute the said fact. 6. Taking into consideration the above said fact as well as the provisions of section 23 of the Land Acquisition Act which reads as under: "23. 5. Sri Ajay Kumar Singh, learned Counsel for the respondents does not dispute the said fact. 6. Taking into consideration the above said fact as well as the provisions of section 23 of the Land Acquisition Act which reads as under: "23. Matters to be considered in determining compensation.--(1) in determining the amount of compensation to be awarded for land acquired under this Act, the Court shall take into consideration-- firstly, the market-value of the land at the date of publication of the [notification under section 4, sub-section (1)]; secondly, the damage sustained by the person interested, by reason of the taking of any standing crops or trees which may be on the land at the time of the Collector's taking possession thereof; thirdly, the damage (if any) sustained by the person interested at the time of the Collector's taking possession of the land, by reason of severing such land from his other land; fourthly, the damage (if any) sustained by the person interested at the time of the Collector's taking possession of the land, by reason of the acquisition injuriously effecting his other property, movable or immovable, in any other manner, or his earnings; fifthly, if in consequence of the acquisition of the land by the Collector, the person interested is compelled to change his residence or place of business, the reasonable expenses (if any) incidental to such change; and sixthly, the damage (if any) bona fide resulting from diminution of the profits of the land between the time of the publication of the declaration under section 6and the time of the Collector's taking possession of the land." 7. Section 23 of the Act, 1894 provided the provisions in order to determine the compensation to award a person whose land has been acquired and the scope of the said section is that a Court must ensure that public funds are judiciously and correctly applied even in matters of the grant of compensation, that the Court has to also take into account the fact that where an agriculturist is permanently losing his lands as long as the quantum of compensation appears to be fair and reasonable having regard to the accepted principles and norms, that it is inadvisable and improper that the State challenges those decisions because the claimants are hardly in a position to contest litigation before the High Court but more importantly because the compensation given to them gets unnecessarily, abnormally delayed. [See, Spl. Land Acquisition Officer v. Tukkaredely AIR 1996 Kant 26 at 33]. 8. An assessment to the compensation payable for land acquired must take into Court several factors, including the nature of the land, its present use and its capacity for a higher potential, its precise location in relation to adjoining land, the use to which neighbouring land has been put and the impact to all those factors the rate of compensation, which has suggested itself to us is what should be decreed. [See Adusumilli Gopal Krishna v. Special Deputy Collector AIR 1980 SC 1870 at 1871]. 9. The method adopted by the Land Acquisition Officer for determining compensation payable for extinction of the interest of the holder of the land and of the building separately was unwarranted. In determining compensation payable in respect of land with buildings compensation cannot be determined by ascertaining the value of the land and the break-up value of the building separately. The land and the building constitute one unit, and the value of the entire must be determine with all its advantages and its potentialities. 10. Under section 23 of the Land Acquisition Act compensation has to be determined by taking into consideration the market value of the land at the date of the publication of the notification under section) 4(1) and the damage, if any, sustained by the persons interested under any of the heads second to six in section 23(1) of the Land Acquisition Act. 11. In the case of Hindustan Oil Co. Ltd. v. Special Duty Collector (Land Acquisition) (1990) 1 SCR 59. 11. In the case of Hindustan Oil Co. Ltd. v. Special Duty Collector (Land Acquisition) (1990) 1 SCR 59. Hon'ble Apex Court held that cumulative effect of all the facts and circumstances should be taken into consideration in arriving at a reasonable and fair market value. [See Periyar and Pareekanni Rubbers Ltd. v. State of Kerala AIR 1990 SC 2192 ]. 12. It is true that compensation for compulsory acquisition, as governed by section 23 of the Act gives high priority to the market value of the land at the date of the publication of the notification under section 4, sub-section (1). 13. But that is market value? It is a common place of this branch of jurisprudence that the main criterion is what a willing purchaser would pay a willing vendor. Ordinarily a party will be entitled to get the amount that he actually and willingly paid for a particular property, provided the transaction be bona fide and entered into with due regard to the prevalent market conditions and is proximate in time to the relevant date under section 23 of the Act. 14. Once it is held as it inevitably must be that solatium provided for under section 23(2) of the Act forms and integral and statutory part of the compensation awarded to a landowner, then from the plain terms of section 28 of the Act, it would be evident that the interest is payable on the compensation awarded and not merely on the market value of the land. Indeed the language of section 28 does not even remotely refer to market value along and in terms talks of compensation or the sum equivalent thereto. The interest awardable under section 28therefore would include within its ambit both the market value and the statutory solatium. It would be thus evidence that the provisions of section 28 in terms warrant and authorise the grant of interest on solatium as well. [See Sunder v. Union of India 2001 (45) ALR 397 (SC); State of Haryana v. Smt. Kailashwati AIR 1980 P&H 117 and Union of India v. Bal Ram AIR 2004 SC 3981 ]. 15. It would be thus evidence that the provisions of section 28 in terms warrant and authorise the grant of interest on solatium as well. [See Sunder v. Union of India 2001 (45) ALR 397 (SC); State of Haryana v. Smt. Kailashwati AIR 1980 P&H 117 and Union of India v. Bal Ram AIR 2004 SC 3981 ]. 15. I am of the considered opinion that the appellants are also entitled to get the same benefit as given to Sri Faijaz Khan by this Court by judgment and order dated 28.4.2010 passed in First Appeal No. 76 of 2006 because both the lands were acquired by notifications under sections 4 and 6 of the Act by the Lucknow Development Authority for the scheme known as "Kanpur Road City Extension Scheme Part-I situate at same village. For the foregoing reasons, the appeal filed by the appellants is allowed and the judgment and award dated 21.10.1982 passed by II Additional District Judge, Lucknow in Land Acquisition Misc. Case No. 14 of 1982, Fekka and another v. State of U.P. and others, is modified to the extent that the compensation awarded to the appellants is enhanced from Rs. 1/- to Rs. 3/- per sq. ft. in respect to his land measuring 2 bighas, 15 bishwas and 18 bishwansi situate in village Besha, Pergana Bijnor District Lucknow.