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2019 DIGILAW 2160 (ALL)

Jahangir Deceased v. Collector Varanasi

2019-09-18

VIVEK KUMAR BIRLA

body2019
JUDGMENT : Vivek Kumar Birla, J. Heard Sri Ashutosh Misra, learned counsel for the appellants and Sri Girish Vishwakarma, learned Standing Counsel appearing for the State. 2. Present appeal has been filed for setting aside the judgment and order of the Court below and to re-determine the compensation awarded to the appellants and to pay the compensation at the rate of Rs.7500/- per biswa and/or pass such other and further order which under the circumstances of the case it is deemed fit and proper. 3. The land of the appellant being Gata No. 157, area 15 biswa 7 dhoor situated in Village Bhitaura, District Bhadohi (now Sant Ravi Das Nagar) was acquired for the purpose of construction of Bhadohi Rajwaha Canal under the Land Acquisition Act, 1894 (hereinafter referred to as the 'Act') for which notifications under Section 4(1) and 6(1) of the Act were issued on 15.5.1984 and 3.7.1984 respectively. By the same notification, land of several other villages including village Kapuripur was acquired for the same purpose. The appellant was awarded compensation at the rate of Rs. 1130/- per biswa. Subsequently, in LAR No. 140 of 1988 (Lal Bahadur vs. Collector) compensation was awarded at the rate of Rs. 5,000/- per biswa for the land situated in adjoining village Kapuripur acquired under the same notification. Vide judgment dated 22.7.2003 passed in L.A.R. No. 250 of 1991 (Mithailal vs Collector) compensation was awarded at the rate of Rs.15,000/- per biswa situated in village Kapuripur and in L.A.R. No. 330 of 1989 (Jagnarain vs. Collector) vide judgment dated 21.4.1990 for the land situated in village Kapuripur compensation was awarded at the rate of Rs.7,000/- per biswa. 4. Being aggrieved, the appellant moved an application under Section 28-A (1) of the Act for grant of parity and claimed compensation at the rate of Rs. 5,000/-. However, it is not in dispute that the claimants-appellants herein have accepted the award without protest and this application was filed under Section 28-A (1) of the Act. The said application was rejected by the Special Land Acquisition Officer vide order dated 21.12.1989 on the ground that the land involved in the case of Lal Bahadur was situated in a different village, namely, Kapuripur whereas the land belonging to the claimant-appellant is situated in village Bhitaura and there is no justification for grant of parity in such matter. 5. 5. From perusal of the original record, it transpires that the matter was referred by the Collector, Sant Ravi Das Nagar, Bhadhoi to the District Judge vide reference dated 25.9.2001 under Section 28-A (3) of the Act. 6. The reference was rejected by the Reference Court by the impugned judgment. 7. Challenging the same, Sri Ahsutosh Mishra, learned counsel for the appellants submits that it is not in dispute that the land falling within/covered by the same notification was acquired for the same purpose. He further submits that the judgment passed by Reference Court in different references have been accepted by the State and no appeal was preferred. He next submits that in view of the facts that in the case of Lal Bahadur, the Reference Court awarded compensation at the rate of Rs. 5,000/- per biswa in village Kapuripur and in the case of Abdul Rehman the SLAO in regard to plot no. 78 of same village Bhitaura has redetermined the award and awarded compensation at the rate of Rs.7,000/- per biswa and for plot no. 139 situated in the adjoining village Kapuripur, in the reference of Mithailal the Reference Court has awarded compensation at the rate of Rs. 15,000/- per biswa. Submission, therefore, is that no further evidence was required for the purpose of granting parity as the object of Section 28-A of the Act is to grant parity with the other land owners in case higher compensation is awarded by judgment passed by the Reference Court. He, however, submits that the appellants are entitled for the grant of compensation at the highest rate at which the other land owners were granted compensation. He lastly submits that sufficient material and evidence are available on record but in any view of the matter, even if no evidence was given separately with regard to the proximity in situation, or about the quality, productivity or value of the land etc., at least, the minimum compensation that has been awarded to other land owners, having land in close proximity under the same acquisition, is liable to be granted to the appellant. 8. 8. In support of the arguments, learned counsel for the appellants has placed reliance on the several judgments of Hon'ble Apex court rendered in the cases of Babua Ram vs. State of U.P., (1995) 2 SCC 689 ; Union of India and Anothers vs. Pradeep Kumari and Others, (1995) 2 SCC 736 ; Union of India vs. Harinder Pal Singh and Others, (2005) 12 SCC 564; Ali Mohammad Beigh and Others vs. State of J & K, (2017) 4 SCC 717 ; Narendra and Others vs. State of U.P. and Others, (2017) 9 SCC 426 and of Allahabad High Court passed in NOIDA vs. Smt. Charan Kaur, (2019) 2 ADJ 590 D.B. 9. Per contra, Sri Girish Vishwakarma, learned Standing Counsel submitted that the reference under Section 28-A (3) of the Act was incorrectly made. He submitted that since no compensation was determined under sub-section (2) of Section 28-A of the Act hence, the reference under sub-section (3) of Section 28-A of the Act was not maintainable. He further submitted that in any view of the matter, sub-section 3 of Section 28-A of the Act provides that in such matter the provisions of Section 18 and 28 of the Act is applicable as they apply to reference under Section 18 of the Act. He submits that in such view of the matter, the Reference Court has rightly rejected the reference on the ground that no evidence was given by the claimant-appellant before the Reference Court regarding the potentiality, productivity, proximity in situation of the land and other factors as are thus relevant for determination of compensation under Section 23 of the Act. 10. I have considered the rival submission and perused the record. 11. On perusal of the record, I find that different judgments were passed by the Reference Court on different dates relating to different villages particularly village Kapuripur and Village Bhitaura involved in the present case. As per the record available before this Court, the award passed in the present case in the year 1989 appears to be earliest in point of time. The provision of Section 28-A of the Act was invoked within time. As per the record available before this Court, the award passed in the present case in the year 1989 appears to be earliest in point of time. The provision of Section 28-A of the Act was invoked within time. It is not in dispute that for the land involved in the same acquisition, as reflected from the record before this Court, the compensation was granted at different higher rates e.g., in the present case the award was passed at the rate of Rs.1130/- per biswa and the Reference Court granted compensation at the rate of Rs. 5,000/- per biswa in the case of Lal Bahadur; and in the case of Abdul Rehman, the award was redetermined by the SLAO at the rate of Rs.7,000/- per biswa; and in the case of Mithailal, at the rate of Rs.15,000/-.per biswa. It is also not in dispute that the State has not preferred any appeal against the same as stated by learned Standing Counsel on the basis of the instructions received from the Collector. On the contrary, as a matter of fact, in the case of Mithailal, the State Government refused to grant permission to file appeal vide its order dated 5.9.2005. 12. In the case of Narendra (supra), the Hon'ble Apex Court has clearly held that keeping in mind the purpose of Section 28-A of the Act mere fact is that compensation claimed by some of the villagers was at a lesser rate, it shall not be the ground to deny appropriate and fair compensation. It was observed that in such cases, strict rules of pleadings are not to be made applicable and rendering substantial parity, has to be the paramount consideration. It was held that in absence of exemplar looking into the spirit of the aforesaid provision, higher compensation can be allowed for others whose lands were acquired under the same notification. Paragraph 6, 7 and 8 of the Narendra (supra) are quoted as under:- "6. Matter can be looked into from another angle as well, viz., in the light of the spirit contained in Section 28-A of the Act. Paragraph 6, 7 and 8 of the Narendra (supra) are quoted as under:- "6. Matter can be looked into from another angle as well, viz., in the light of the spirit contained in Section 28-A of the Act. This provision reads as under: "28-A. Re-determination of the amount of compensation on the basis of the award of the court.--(1) Where in an award under this Part, the Court allows to the applicant any amount of compensation in excess of the amount awarded by the Collector under Section II, the persons interested in all the other land covered by the same notification under Section 4, sub-section (1) and who are also aggrieved by the award of the Collector may, notwithstanding that they had not made an application to the Collector under Section 18, by written application to the Collector within three months from the date of the award of the court require that the amount of compensation payable to them may be re-determined on the basis of the amount of compensation awarded by the court......" 7. It transpires from the bare reading of the aforesaid provision that even in the absence of exemplars and other evidence, higher compensation can be allowed for others whose land was acquired under the same Notification. 8. The purpose and objective behind the aforesaid provision is salutary in nature. It is kept in mind that those land owners who are agriculturist in most of the cases, and whose land is acquired for public purpose should get fair compensation. Once a particular rate of compensation is judicially determined, which becomes a fair compensation, benefit thereof is to be given even to those who could not approach the court. It is with this aim the aforesaid provision is incorporated by the Legislature. Once we keep the aforesaid purpose in mind, the mere fact that the compensation which was claimed by some of the villagers was at lesser rate than the compensation which is ultimately determined to be fair compensation, should not be a ground to deny such persons appropriate and fair compensation on the ground that they claimed compensation at a lesser rate. In such cases, strict rule of pleadings are not be made applicable and rendering substantial justice to the parties has to be the paramount consideration. In such cases, strict rule of pleadings are not be made applicable and rendering substantial justice to the parties has to be the paramount consideration. It is to be kept in mind that in the matter of compulsory acquisition of lands by the Government, the villagers whose land gets acquired are not willing parties. It was not their voluntary act to sell of their land. They were compelled to give the land to the State for public purpose. For this purpose, the consideration which is to be paid to them is also not of their choice. On the contrary, as per the scheme of the Act, the rate at which compensation should be paid to the persons divested of their land is determined by the Land Acquisition Collector. Scheme further provides that his determination is subject to judicial scrutiny in the form of reference to the District Judge and appeal to the High Court etc. In order to ensure that the land owners are given proper compensation, the Act provides for 'fair compensation'. Once such a fair compensation is determined judicially, all land owners whose land was taken away by the same Notification should become the beneficiary thereof. Not only it is an aspect of good governance, failing to do so would also amount to discrimination by giving different treatment to the persons though identically situated. On technical grounds, like the one adopted by the High Court in the impugned judgment, this fair treatment cannot be denied to them." (emphasis supplied) 13. Thus, the observation of the Reference Court while rejecting the claim of the appellant that no evidence was given by the appellant-claimant for the purpose of claiming parity with the land of the other land owners involved in the other reference case regarding proximity in situation, potentiality, quality and productivity of soil etc. for rejecting the reference is not acceptable in the present case. However, the facts remains is that the land owners under the different judgments have also accepted the different awards and there had been no appeal either on the part of the State or on the part of the claimant in other cases and there is no other evidence on record. However, the facts remains is that the land owners under the different judgments have also accepted the different awards and there had been no appeal either on the part of the State or on the part of the claimant in other cases and there is no other evidence on record. The appellant are even without going into any other factor, therefore, entitled for parity, at least, with the case of Lal Bahadur, who was granted compensation at the rate Rs.5,000/- per biswa vide judgment dated 29.8.1989 passed in reference appeal no. 140 of 1988. This judgment was earliest in point of time and was the basis for claiming parity. 14. During course of arguments, Sri Ashutosh Mishra, learned counsel submitted that the relief sought is that the appellant is entitled for compensation at the rate of Rs. 7,500/- per biswa or at least, at the rate at which Abdul Rehman, who had land in close proximity and in the same village, was granted enhanced compensation at the rate of Rs. 7,000/- per biswa by the SLAO by re-determining the award. He had drawn attention to map of village Bhitaura and the award passed by the SLAO wherein different rates were fixed by the SLAO for different quality of land. 15. This case, as discussed and noted above, has peculiar facts where compensation at different rates has been given and accepted. Therefore, I am inclined to consider this aspect of the matter also. 16. A perusal of the impugned judgment indicates that SLAO himself has redetermined the compensation awarded to Abdul Rehman under Section 28-A of the Act on the basis of the judgment passed' in LAR No. 330 of 1989 (Jag Narain vs. Collector) regarding plot no. 180 in village Kapuripur. SLAO also noticed that State Government vide G.O. dated 9.7.1990 has provided for not filing appeal against the judgment in the case of Jag Narain. Undisputedly, as per the Map, land of Abdul Rahman is quite near to the land of the appellant and appears to be of the same soil quality. 17. 180 in village Kapuripur. SLAO also noticed that State Government vide G.O. dated 9.7.1990 has provided for not filing appeal against the judgment in the case of Jag Narain. Undisputedly, as per the Map, land of Abdul Rahman is quite near to the land of the appellant and appears to be of the same soil quality. 17. In view of the evidence that the SLAO himself redetermined the award' in the case of Abdul Rehman in the year 2000 itself on 24.8.2000, in case No. 79A of 1990, Paper No. 15ka, dealing with the claim of the appellant under Section 28-A of the Act and considering the proximity in situation of the land and rate of soil fixed by the SLAO, this Court is of the opinion that the claimants are entitled for compensation at the rate of Rs. 7,000/- per biswa as granted to Abdul Rehman. 18. Accordingly, this appeal is partly allowed. It is held that the claimant-appellant shall be entitled for compensation at the rate of Rs.7,000/- per biswa with all other consequential benefits. 19. The difference in compensation along with other statutory benefits under the Act shall be calculated and paid to the appellant within a period of three months from today. The appellant shall also be entitled for the cost of this appeal.