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Rajasthan High Court · body

2014 DIGILAW 688 (RAJ)

Syed Abdul Basir v. Union of India

2014-03-11

BELA M.TRIVEDI

body2014
JUDGMENT 1. - The present appeal filed under Section 54 of the Land Acquisition Act, 1894 (hereinafter referred to as 'the said Act') is directed against the judgment and decree dated 26.9.95 passed by the Civil Judge (SD), Ajmer (hereinafter referred to as 'the Reference Court') in Reference No. 21/69, whereby the Reference Court has dismissed the reference made under the said Act. 2. This is one of the long drawn litigation with checkered history, and an incomplete record. The lands in question bearing Khasra Nos. 5103 to 5108 were sought to be acquired as per the notification dated 13.1.64 issued under Section 4 of the said Act, for the Western Railways, Bombay. The notification under Section 6 read with Section 17 of the said Act was thereafter issued on 4.2.64 and the notices were also issued under Section 9 of the said Act for taking the possession thereof. It appears that the possession of the said lands was thereafter delivered to the Western Railways on 17.4.64. It further appears that the award was made by the S.D.O. and Land Acquisition Officer, Ajmer on 24.9.1968 after considering the claims raised by three persons named Shri Ram Nath, Shri Abdul Bashir and Shri Bhagchand Soni. The Land Acquisition Officer while determining the market value of the lands in question, in the said award, made reference under Section 30 of the said Act, to the court for deciding the disputes with regard to the apportionment of the amount of compensation. As transpiring from the record, the respondents deposited Rs. 5,45,559.73/- on 24.2.69 before the court of Land Acquisition Officer, pursuant to the award. Though there is no clarity as to when the appellant and the other two claimants applied to the Land Acquisition Officer for making reference under Section 18 of the said Act, as the complete record of the case is not available, it appears that one report (undated) was made by the S.D.O. and Land Acquisition Officer, Ajmer purported to be under Section 19 of the said Act. There is also no clarity from the record available as to which of the references was registered as the Reference Case No. 21/69. There is also no clarity from the record available as to which of the references was registered as the Reference Case No. 21/69. It also appears that the said Reference remained pending before the Reference Court for about 25 years, and that though number of issues were involved in the case, the Reference Court without touching those issues passed the impugned judgment dismissing the said Reference Case No. 21/69. Being aggrieved by the same, the appellant had preferred the present appeal, which had remained pending for about 15 years for final disposal. 3. The learned senior counsel Mr. N.K. Maloo for the appellant submitted that though the acquired lands bearing Survey No. 5103 to 5107 were situated on the main Ajmer- Beawer Road which was part of National Highway No. 8, the Land Acquisition Officer had awarded the compensation at the meagre rate of Rs. 20/- per sq. yard, and the same was confirmed by the Reference Court without any application of mind. According to him, though the sale-deed dated 19.4.65 in respect of the other land situated nearby the subject land was produced, showing the market value of the lands at the relevant time to be Rs. 20/- per sq. yard. He further submitted that the Reference Court also without assigning any reasons confirmed the said value ignoring the legal position settled by the Apex Court in various decisions. He further submitted that the Land Acquisition Officer and the Reference Court has awarded only Rs. 1,000/- for the land bearing Khasra No. 5197 on the ground that it was a 'Nala' without realising its potential value. According to him, at present the hospital has been constructed on the said land and therefore the amount of compensation be suitably increased. As regards the land bearing Khasra No. 5106, he submitted that though the entire Khasra ad measuring 18 Biswas was sought to be acquired, the Government had taken possession of only 13 Biswas and the Land Acquisition Officer had awarded the compensation accordingly, which was not proper. Lastly, he submitted that the Reference Court has committed an error in not awarding the additional amount @ 12% under Section 23(1 A), solatium @ 30% under Section 23(2) and the interest as per Section 28 of the said Act. Mr. Maloo 1 has relied upon the decisions of the Apex Court in case of Hans Raj Sharma (dead) by Lrs. Mr. Maloo 1 has relied upon the decisions of the Apex Court in case of Hans Raj Sharma (dead) by Lrs. v. Collector, Land Acquisition, Tehsil & District Doda (2005) 1 SCC 553 , in case of State of U.P. v. Major Jitendra Kumar & Ors., AIR 1982 SC 876 , in case of M/s. Printers House Pvt. Ltd. v. Mst. Saiyadan (Deceased by Lrs. & Ors., AIR 1994 SC 1160 , in case of Narain Das Jain (since deceased) by Lrs. v. Agra Nagar Mahapalika, Agra (1991) 4 SCC 212 and in case of Tejumal Bhojwani (dead) through Lrs. & Ors. v. State of U.P., (2003) 10 SCC 525 and various decisions of this court in support of his submissions. 4. The learned counsel Mr. Shailesh Prakash Sharma for the respondent-UOI however submitted that the appellant- claimant had made an application dated 20.5.69 before the Reference Court for permitting him to withdraw the amount of compensation deposited by the Railway authorities, on which the Reference Court had passed the order dated 23.5.69 directing 15 the appellant to file an application before the Land Acquisition Officer. Hence according to Mr. Sharma the award made by the Land Acquisition Officer thus having been accepted by the appellant, the reference under Section 18 of the said Act at his instance was not maintainable. Placing reliance on the decisions of the Apex Court in case of State of Karnataka & Anr. v. 2 Gangappa Dyavappa Biradar & Ors., (2005) 4 SCC 264 and in case of Wardington Lyngdoh & Ors. v. The Collector, Mawkyrwat, (1995) 4 SCC 428 , he submitted that the right of a land holder to obtain an order of reference would arise only when he had not accepted the award and once such award was accepted, no legal right in him survived for claiming the : reference to the civil court. Hence, according to Mr. Sharma when the reference itself was not maintainable before the Reference Court, there was no question of awarding additional amount of compensation or the other benefits under Section 23 (1 A) or Section 28 of the said Act. 5. As stated here-in-above, this case has a checkered history. Hence, according to Mr. Sharma when the reference itself was not maintainable before the Reference Court, there was no question of awarding additional amount of compensation or the other benefits under Section 23 (1 A) or Section 28 of the said Act. 5. As stated here-in-above, this case has a checkered history. The incomplete record shows that the notification under Section 4 of the said Act was issued on 13.1.64, the notification under Section 6 of the said Act was issued on 4.2.64 and possession of the land was taken over on 17.4.64. However, there is nothing on record to show as to from whom the possession of the lands was taken by the respondent-authorities. There is also no clarity as to whether the appellant was in actual physical possession or not when the respondent-authorities took the possession. Be that as it may, it appears that the award was made on 24.9.658 by the Land Acquisition Officer. He, while passing the award also made the reference under Section 30 of the said Act, to the court for apportionment as there were three claimants. It further appears from the impugned order passed by the Reference Court that the said three claimants had also made the applications to the Land Acquisition Officer for referring their matters to the court under Section 18 of the said Act. Although neither the said applications of the said claimants under Section 18 nor the order of the Land Acquisition Officer making reference under Section 19 of the said Act are on record, this court presumes that such references must have been made at the instances of the said claimants, as the Reference Court has cursorily mentioned about the same in the impugned order. It further appears that the said reference remained pending before the Reference Court for about 27 years as there were other litigation's amongst the said claimants pending in respect of the lands in question. 6. The history of litigation as emerging from the record appears to be that originally one Mohd. Hashim Khan, Predecessor in title of the appellant Sayyed Abdul Bashir, had mortgaged the lands in question with one Seth Bhagchand Soni and others by way of usufructuary mortgage in the year 1896. The said lands remained in possession with the said mortgagee. 6. The history of litigation as emerging from the record appears to be that originally one Mohd. Hashim Khan, Predecessor in title of the appellant Sayyed Abdul Bashir, had mortgaged the lands in question with one Seth Bhagchand Soni and others by way of usufructuary mortgage in the year 1896. The said lands remained in possession with the said mortgagee. A civil suit being No. 355/1934, (renumbered 1/1958 and 66/1961) for redemption of mortgage came to be instituted by the mortgagor against the mortgagee, in which the Extra Special Judge, First Class, Ajmer had passed the preliminary decree on 24.2.43, appointing the Commissioner for accounts. Before the said court could pass the final decree on 18.3.69, the lands were acquired by the Union of India for the Western Railways. In the meantime, third party rights were also created by the said mortgagee Shri Bhagchand Soni in the suit lands, and he himself was also declared insolvent. The record and proceedings also reveal that some receiver was also appointed in respect of his properties including part of the lands in question. Because of the incomplete record, it is also difficult to ascertain as to from whom the possession of the lands in question was taken by the respondent-authorities on 17.4.64. 7. Be that as it may, it further appears that being aggrieved by the final decree passed in the said suit proceeding, both the parties i.e. the mortgagor and the mortgagee had preferred appeals be before the Addl. District Judge, Ajmer, who disposed of the said appeals by by the judgment dated 29.9.73. again being aggrieved by the said judgment, the appeals were preferred before the High Court which came to be decided on 1.9.87, whereby the High Court dismissed the appeal preferred by the defendant-mortgagee and allowed the appeal preferred by the plaintiff-mortgagor, further directing that out of the amount of compensation deposited by the respondents, the defendant i.e. the mortgagee would be paid Rs. 10,081.49/- and the rest of the 3mount would be paid to the plaintiff- mortgagee of the said suit had also preferred an SLP before the Supreme Court, however it was dismissed on 27.1.95. 8. 10,081.49/- and the rest of the 3mount would be paid to the plaintiff- mortgagee of the said suit had also preferred an SLP before the Supreme Court, however it was dismissed on 27.1.95. 8. So far as the reference proceedings are concerned, it appears that the Land Acquisition Officer while making the award had made reference under Section 30 of the said Act to the court for the apportionment, and that out of the other three references made at the instance of the three claimants under Section 18 of the said Act, one reference was in respect of the claim made by Shri Ramnath claiming his share in Khasra No. 5106 ad measuring 233 sq. yards, the second reference was filed by the Receiver of Seth Bhagchand Soni, in respect of the property mortgaged by the predecessor of the appellant, and the third reference was filed by the appellant Sayyed Abdul Bashir seeking enhancement in the compensation. The Reference Court had consolidated all the references and vide the impugned order dated 26.9.95 dismissed the reference of the appellant, further holding that the claimant Shri Ramnath having already waived his claim, he was not entitled to any amount of compensation. The Reference Court further observed that as regards the claim of Seth Bhagchand and his successors, separate order dated 16.5.95 was passed. Being aggrieved by the said order, the appellant has preferred the present appeal before this court. 9. As regards the maintainability of the reference under Section 18 of the said Act, though the learned counsel Mr. Sharma for the respondent has submitted that the same was not maintainable as the appellant had accepted the award made by the Land Acquisition Officer, the said submission cannot i be accepted. Though it is true that the appellant- claimant had made an application dated 20.5.69 for making him the payment of compensation amount, and the said application was decided by the Reference Court on 23.5.69 directing him to approach the Land Acquisition Officer, it appears that # such application was filed by the appellant pending the reference. What is contemplated in Section 18 of the said Act is that any person interested who has not accepted the award, may by written application to the Collector, require that the matter be referred by the Collector for the determination of the Court. What is contemplated in Section 18 of the said Act is that any person interested who has not accepted the award, may by written application to the Collector, require that the matter be referred by the Collector for the determination of the Court. From the bare reading of the said provision it transpires that the 1 person interested should not accept the award if he desired the Collector to refer the matter to the court. In case of Karnataka & Anr. v. Gangappa Dyavappa Biradar & Ors. (supra) also the Apex Court has interalia observed that the right of a land holder to obtain the order of reference would arise only when he has not accepted the award. In case of Wardington Lyngdoh 1 & Ors. v. The Collector, Mawkyrwat (supra) also the Apex Court has observed interalia that the persons interested in the land are entitled to receive compensation awarded by the Collector under Section 11 under protest and entitled to object to the compensation determined by the Collector, however no person who had received the amount otherwise than : under the protest, would be entitled to make application under Section 18 of the said Act. So far as the present case is concerned, there is nothing on the record to suggest that the nothing on the record to suggest that the appellant had received the amount of compensation as determined by the Land Acquisition Officer before the reference under Section 18 of the Act was made. On the contrary the very fact that he had made the application for payment of the said compensation before the Reference Court implies that he had not received the said amount prior to the making of reference under Section 18 of the said Act. As stated here-in-above, there is no clarity as to when the reference under Section 18 of the said Act was made by the Land Acquisition Officer in the prescribed manner, however no such contention as regards the maintainability of the reference was raised by the respondent-authorities before the Reference Court and no such issue also was framed and decided by the Reference Court in that regard. The court, therefore, does not find any substance in the submission made by the learned counsel for the respondents that the reference made by the Land Acquisition Officer at the instance of the appellant-claimant was not maintainable under Section 18 of the said Act. 10. The next point that falls for consideration is as to whether the Reference Court had committed any error in rejecting the reference by not accepting the claim of the appellant for the enhancement of compensation, and by not giving the benefits of Section 23(1 A), Section 23(2) and Section 28 of the said Act. Although it is true that fixing of the market value involves a certain amount of intelligent guess work, the element of speculation could be reduced to a minimum if the principles laid down by the Apex Court in various cases are broadly followed. The Apex Court, in case of M/S. Printers House Pvt. Ltd. v. Mst. Saiyadan (Deceased) by Lrs. & Ors. (supra), relied upon by the learned counsel Mr. Maloo, has observed inter-alia that the court for determining the market value of the acquired land is required to consider the price reflected in the sale deed/award pertaining to the land situated at the closest or nearest to the acquired land, along-with the other factors namely, the size, shape, nature, potentiality etc. of the land. The court is also required to see whether such sale-deed was within the reasonable time of the date of notification under Section 4 of the said Act and was a bona fide transaction, and whether the land acquired possessed similar advantages as that of the land in respect of which the sale-deeds have been produced. In the instant case, it appears that the Land Acquisition Officer has awarded compensation for the lands bearing Khasra Nos. 5103, 5105 and 5106 @ Rs. 20/- per sq. yard relying on the sale-deed produced by the appellant- claimant in respect of the land situated in the vicinity of the lands in question. The said sale-deed was executed on 19.4.65 i.e. about one year after the notification dated 13.1.64 under Section 4 of the said Act issued for the acquisition of the lands in question. As per the said sale-deed dated 19.4.65, the land ad measuring about 31 sq. yards was sold for Rs. 600/-meaning thereby it was sold at about Rs. 20/- per sq. yard. As per the said sale-deed dated 19.4.65, the land ad measuring about 31 sq. yards was sold for Rs. 600/-meaning thereby it was sold at about Rs. 20/- per sq. yard. Apart from the fact that the said sale-deed was executed after one year of the notification under Section 4 of the said Act in respect of the lands in question, as observed by the Land Acquisition Officer, the acquired lands were situated about two furlongs away from Ajmer. The Land Acquisition Officer has also relied upon the recommendation of Tahsildar and considering the facts and circumstances of the case awarded compensation at Rs. 20/- per sq. yard which has been confirmed by the Reference Court also. The learned counsel Mr. Maloo has not been able to point out from the evidence on record as to how the Land Acquisition Officer and the Reference Court had committed any error in respect of the acquired lands. The learned counsel has also not been able to substantiate his submission as to how the appellant-claimant was entitled to higher amount of compensation for Khasra Nos. 5107, which was admittedly a 'Nala' at the relevant time. In absence of any cogent evidence adduced by the appellant, the court is not inclined to interfere with the findings of facts recorded by the Land Acquisition Officer and the Reference Court so far as the determination of the compensation is concerned. 11. This takes the court to the next contention raised by the learned counsel for the appellant, as to whether the appellant is entitled to the benefit of the provisions contained in Section 23(1 A) and Section 23(2) as also Section 28 of the said Act. The relevant part of Section 23 reads as under:- "Section 23(1)...................... (1A) In addition to the market value of the land, as above provided, the Court shall in every case award an amount calculated at the rate of twelve per centum per annum on such market value for the period commencing on and from the date of the publication of the notification under Section 4, sub-section (1), in respect of such land to the date of the award of the Collector or the date of taking possession of the land, whichever is earlier. Explanation: (1)...................... Explanation: (1)...................... (2) In addition to the market value of the land, as above provided, the Court shall in every case award a sum of thirty per centum on such market value in consideration of the compulsory nature of acquisition." 12. Section 28 of the said Act reads as under:- "28. Collector may be directed to pay interest on excess compensation. If the sum which, in the opinion of the Court, the Collector ought to have awarded as compensation is in excess of the sum which the Collector did award as compensation, the award of the Court may direct that the Collector shall pay interest on such excess at the rate of nine per centum per annum from the date on which he took possession of the land to the date of payment of such excess into Court: Provided that the award of the Court may also direct that where such excess or any part thereof is paid into Court after the date of expiry of a period of one year from the date on which possession is taken, interest at the rate of fifteen per centum per annum shall be payable from the date of expiry of the said period of one year on the amount of such excess or part thereof which has not been paid into Court before the date of such expiry." 13. From the bare reading of the provision contained in Section 23(1 A) of the said Act, it transpires that it is the court defined under Section 3(d) of the said Act and not the Collector who is required to award, in addition to the market value of the land acquired, an amount calculated at the rate of 12% per annum on such market value for the period mentioned therein in the pending cases. As per Section 23(2) of the said Act also, the court is empowered to award, in addition to the market value, a sum of 30% on such market value, known as solatium, in consideration of the compulsory nature of the acquisition. Section 28 comes into play only when in the opinion of the Reference Court, the Collector ought to have awarded as compensation higher than the compensation awarded by him. In that case, the Reference Court has to direct the Collector to pay interest at the rate of 9% per annum on such excess amount into the court. Section 28 comes into play only when in the opinion of the Reference Court, the Collector ought to have awarded as compensation higher than the compensation awarded by him. In that case, the Reference Court has to direct the Collector to pay interest at the rate of 9% per annum on such excess amount into the court. From the conjoint reading of Section 23(1 A), Section 23(2) and Section 28 of the said Act it appears that the interest under Section 28 of the said Act could not be awarded when the court merely grants additional compensation under Section 23(1A) and solatium under Section 23(2) of the said Act and does not award the compensation higher than the compensation awarded by the Collector, inasmuch as the Collector being not authorised to award such amount under Section 23(1 A) and Section 23(2) of the said Act, it could not be said that he ought to have awarded such amount but did not award, for the purposes of Section 28 of the said Act. 14. In the instant case, the Reference Court has not enhanced the amount of compensation determined by the Land Acquisition Officer. This court has also found that the amount of compensation determined by the Land Acquisition Officer and the Reference Court is just and proper. However, the Reference Court having not awarded the additional amount as contemplated under Section 23(1 A) and the solatium under Section 23(2), which is mandatory in nature, the court is of the opinion that the Reference Court has committed an error to that extent, and therefore the appellant would be entitled to the said benefits under Section 23(1 A) and Section 23(3) of the said Act. Mr. Maloo has rightly relied upon the decisions of the Apex Court in case of Narain Das Jain v. Agra Nagar Mahapalika, Agra, (1991) 4 SCC 212 and in case of Perniyar and Pareekanni Rubbers Ltd. v. State of Kerala, (1991) 4 SCC 195 , in which it has been held inter alia that compensation is recompense or reparation to the loss caused to the holder of the land and that payment of interest on solatium is to re-compensate the holder of the land for the loss of user of the land from the date of taking possession till date of payment into court. In the instant case, though the Reference Court had not awarded any amount in excess of the amount of compensation determined by the Land Acquisition Officer in respect of the lands in question, the Reference Court was required to award the additional amount and the solatium as contemplated in Section 23(1A) and 23(2) respectively to the appellant-claimant. The Reference Court having not granted the said benefit of additional amount and the solatium as contemplated in Section 23(1A) and Section 23(2) of the said Act, it is held that the appellant shall be entitled to the said amount. 15. So far as the interest amount as contemplated in Section 28 is concerned, as discussed here-in-above, the court is of the opinion that since the Reference Court and this court have confirmed the determination of the market value of the lands in question made by the Land Acquisition Officer and have not enhanced the same, the question of awarding interest on the excess compensation as contemplated under Section 28 of the said Act would not arise. However, the appellant shall be entitled to the interest at the reasonable rate which in the opinion of the court is 6% per annum, on the additional amount from the date 26.9.95 till the date of payment. 16. In view of the above, it is directed that the respondent-authorities shall pay to the appellant, the additional amount that may be calculated @ 12% per annum on the market value of the lands determined by the Land Acquisition Officer as confirmed by the Reference Court, for the period commencing from the date of publication of the notification under Section 4, sub-section (1), till the date of award made by the Land Acquisition Officer or the date of taking possession whichever is earlier, as per Section 23(1 A) of the said Act, and also the sum of 30% on such market value by way of solatium under Section 23(2) of the said Act. It is also directed that the respondents shall pay to the appellant the interest @ 6% per annum on the said additional amount and on the amount of solatium for the period from the date of the impugned order i.e.26.9.95 till the date of payment. The appeal stands partly allowed accordingly.Appeal Partly Allowed. *******