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Judgment
P.C. Verma, J.—Since all these First Appeals raise almost common questions of facts and law, therefore they are being dealt with together and decided by common order. In all the bunch cases, First Appeal No. 50 of 2006 is taken up as leading case.
This bunch of First Appeals are directed against the judgment and order dated 2.9.1998 decided by the Court below by a common judgment passed in Land Acquisition references by the land owners.
The facts as set out in the appeal are that land measuring 157 Bigha 6 biswansi (98.28 Acres) of two villages viz. Budhera Zahidpur and Kazipur, District Meerut was acquired for construction of Head Quarter of the 44th Battalion, Provincial Armed Constabulary (P.A.C.). For the said acquisition the notification u/s 4 of the Land Acquisition Act was issued on 17.02.1989/02.03.1989 and that u/s 6 was issued on 08.02.1990/05.03.1990. The possession of the acquired land of the Appellants was taken in the year 11.03.1992. The Special Land Acquisition Officer gave his award on 04.03.1992 and fixed the value of the land of the Appellant(s) at Rs. 30 per Sq. Yard.
Aggrieved by the said award of the Special Land Acquisition Officer the Appellant(s) herein preferred Reference(s) on 10.04.1992 u/s 18 of the Land Acquisition Act claiming higher value for their land not less than Rs. 400/- per sq. yard with other statutory entitlement and claimed for determination of the market value of the land. Further contention of the Appellant before the Reference Court was that the Special Land Acquisition Officer has committed a manifest error in calculation of value of the land and it was against the evidence available on record. The circle rate of the area was Rs. 400 per Sq. Yard and the land of the Appellants was adjoining to developed village. The land in question had admitted potential of residential purposes and most suited for any institutional headquarter with Abadi on all sides on the land in question. It is situated on the main Meerut Hapur Road which is National Highway to Lucknow and adjoins fully developed village and Abadi of Budhera Zahidpur, Gosipur, Kazipur and full developed and planned Colony of Shastri Nagar, developed by Utter Pradesh Avas Evam Vikas Parishad. It is at a close distance from Nauchandi Mela premises and is conveniently connected to the city by the main road and to Medical College by a Circular Road. It is within the Municipal limit of the city and as such enjoys the full status of city living. It was also stated that its residential potential can be well judged from the fact that the Meerut Development Authority, Meerut has notified and acquired land on all sides of the vicinity in question for its developmental project and has stationed a textile complex near the land in question. Thus the magnitude of potentiality of the land in question at the time of the date of acquisition and notification u/s 4 can be adjudged. Various sale deeds executed within a year prior to the date of notification i.e 17.02.88 to 17.02.89 were given as exemplars clearly show that the rate of the land was not in any case less than Rs. 400/per sq. yard at the appointed date.
The Reference Court rendered its judgment on 02.09.1998 and enhanced the value to Rs. 90.50 P per sq. yards.
The Appellants have urged that Reference Court while fixing the value of Rs. 90.50 per Sq. Yard had failed to peruse the facts. It is contended that the Appellants had adduced cogent and reliable evidence to this effect that the value of the acquired land is more than Rs. 250 per Sq. Yard on the day of notification u/s 4 of the Act . The award of the Special Land Acquisition Officer dated 4th March, 1992 at the rate of Rs. 30/- per square yard appears to be incorrect as it is based on the exemplars i.e sale deeds executed 3 years prior to notification. There are admissions on part of the witness of the State and the State cannot be permitted to act arbitrarily in awarding compensation at a lower rate and to charge stamp duty on a higher rate. The adoption of the aforesaid system is discriminatory in nature and amounts to adopting double standard which is not permissible under law. It is an accepted position under law that the prices of the land increases every 5 years. Therefore, even if the rate of Rs. 73/- per square yard in respect of scheme No. 10 of the U.P. Avas Evam Vikas Parishad regarding acquisition made in year 1983 is taken into consideration, the market value of the acquired land is not liable to be less than Rs. 150/- per square yard. No reasons have been recorded in not placing reliance upon the judgments filed by the Appellants and the exemplars while determining the market value of the land in question.
The learned Counsel for the Respondents-State rebutted the contention of the Appellants and argued that the judgment of the Reference Court is in itself not acceptable to the State and it has been challenged by the State in the connected appeals, which are being heard together with these bunch of the appeals, thus there is no reason for any further enhancement and further submitted that on the contrary the award of Rs. 90.50 per sq. yards is highly excessive and should be reduced.
We have heard learned Counsel for the parties, and have perused the material on records.
It is admitted on record that the acquired land was having full building potentiality and was most suitable for construction purposes at the time of its acquisition. The District Judge hearing the Reference on the request of the parties made an inspection of the land in question on 29.07.1996 and found its situation on the main Hapur Road, which is a National Highway leading to Lucknow and was only 8 k.m. from the District Court, Meerut and within the municipal limits of the city of Meerut. The entire vicinity is said to be fully developed and the acquired land had the advantages of all civic amenities, like Bank, College, School, L-Block, of Shastri Nagar Colony, Hathkargha Nagar/Ram Manohar Lohiya Nagar of the Meerut Development Authority, and there is even a link road adjacent to acquired land which links Hapur Road to Delhi Road (the same is also in the sajara plan).
DW.1 Rajendra Kumar Sharma, Ahalmad, had admitted in his statement that the land in question is within the municipal limits and its circle rate was less than Rs. 30/- per square yard. Further certified copy of the judgment of Hon''ble Court dated 18.04.1991 are on record wherein the value of the land, plot No. 93, of Village Budhera Zahidpur, i.e. of the same village, was determined at Rs. 64/- per square yard. Sale deed dated 03.08.1988 executed by Sukhbir Singh of Khasara No. 337, village Kazipur at Rs. 500 per sq. yards (Paper No. 11 ga), Sale deed dated 27.02.1987 executed by Mohar Singh of Khasara No. 393 Village - Kazipur at Rs 290/- (Paper No. 12 ga), Sale deed dated 23.08.1988 executed by Jai Narain Sharma of Khasara No. 393 village Kazipur at Rs. 360 per sq. yards (Paper No. 46 ga) and the judgment of this Hon''ble High Court in Civil Revision No. 1979 of 1990 (paper No. 45 ga) wherein the rate of land of plot No. 93 village Budhera Zahidpur, Meerut has been accepted to be Rs 1562/-sq meters.
In Union of India (UOI) Vs. Pramod Gupta (D) by L.Rs. and Others, at page 21 the Hon''ble Apex Court while dealing with the issue of assessment of compensation by way of determining the market value has observed that:
Determination of Market value:
While determining the amount of compensation payable in respect of the lands acquired by The State, the market value therefore indisputably has to be ascertained. There exist different modes thererfor.
The best method, as is well known, would be the amount which a willing purchaser would pay to the owner of the land. In absence of any direct evidence, the court, however, may take recourse to various other known methods. Evidences admissible therefore inter alia would be judgments and awards passed in respect of acquisition of lands made in the same village and/or neighbouring villages. Such a judgment and award, in the absence of any other evidence like the deed of sale, report of the expert and other relevant evidence would have only evidentiary value.
Therefore, the contention that as the Union of India was a party to the said awards would not by itself be a ground to invoke the principles of res judicata and/or estoppels. Despite such awards it may be open to the Union of India to question the entitlement of the Respondent claimants to the amount of compensation and/or the statutory limitations in respect thereof. It would also be open too it to raise other contentions relying on or on the basis of other materials brought on record. It was also open to the Appellant to contend that the land under acquisition are not similar to the lands in respect whereof judgments have been delivered. The areas of the land, the nature thereof, advantage and disadvantages occurring therein amongst others would be relevant factors for determining the actual market value of the property although such judgments/awards, if duly brought on record, as stated hereinbefore, would be admissible in evidence.
Even if the Union of India had not preferred any appeal against the said judgment and award, it would not be stopped and precluded from raising the said question in a different proceeding as in a given case it is permissible in law to do the same keeping in view the larger public interest.
In Government of West Bengal Vs. Tarun K. Roy and Others, repelling the contention that the State is stopped from maintaining an appeal while from a similar matter which has been implemented no appeal was filed, it was observed: (SS Cp.358, paras 28-29)
28 in the aforementioned situation, the Division Bench of the Calcutta High Court manifestly erred in refusing to consider the contentions of the Appellants on their own merit, particularly, when the question as regards deference in the grant of scale of pay on the ground of different educational qualification stand concluded by a judgment of this Court in State of W.B. v. Debdas Kumar (1991) 1 Supp SCC 138 . If the judgment of Debdas Kumar it to be followed, a finding of fact was required to be arrived at that they are similarly situated to the case of Debdas Kumar which in turn would mean that they are also holders of diploma in engineering. They admittedly being not, the contention of the Appellants could not be rejected. Non-filing of an appeal, in any event, would not be a ground for refusing to consider a matter n its own merits. (See State of Maharashtra Vs. Digambar,
In State of Bihar and others Vs. Ramdeo Yadav and others, wherein this Court noticed Debdas Kumar by holding: SCC p. 494, para 4)
Shri B.B. Singh, the learned Counsel for the Appellants, contended that though an appeal against the earlier order of the High Court has not been filed, since larger public interest is involved in the interpretation given by the High Court following its earlier judgment, the matter requires consideration by this Court. We find force in this contention. In the similar circumstances, this Court is State of Maharashtra v. Digambar and in State of W.B. v. Debdas Kumar had held that though an appeal was not filed against an earlier order, when public interest is involved in interpretation of law, the Court is entitled to go into the question.
(emphasis supplied)
The principle of res judicata would apply only when the lis was inter parties and had attained finality in respect of the issues involved. The said principle will, however, have no application inter alia in a case where the judgment and/or order had been passed by a court having no jurisdiction therefore and/or in a case involving a pure question of law. It will also have n application in a case where the judgment is not a speaking one.
The courts while determining the amount of compensation for acquisition of land would be bound to take in to consideration only the materials brought on record. However, factors which would be relevant for determining the amount of compensation would vary from case to case and no hard-and-fast rule can be laid down therefore. The principle of res judicata will, therefore, have no application in the facts of the present matter.
The above position as enunciated by the Hon''ble Apex Court lays down clearly that the assessment of compensation with regard to the matters pertaining to the land acquisition has to be clearly done with a reference to the Market Value of the land at the time of taking of the possession of the acquired land. The market value has to be assessed in accordance with the any prospective buyer offering to buy the land or it not so available, then on the basis of records pertaining to the similarly placed land.
In the present case, the best exemplars adduced by the Appellant/Land Owner were altogether ignored by the reference court.
In Union of India (UOI) Vs. Parmal Singh and Others, at page 623 the Hon''ble Apex Court observed that:
When a property is acquired, and law provides for payment of compensation to be determined in t manner specified, ordinarily compensation shall have to be paid at the time of taking possession in pursuance of acquisition. By applying equitable principles, the courts have always awarded interest on the delayed payment of compensation in regard to acquisition of any property.
In Union of India v. Parmal Singh, (Supra) at page 624, the Hon''ble Apex has further observed that:
Whenever the arbitrator or the High Court increases the compensation for the acquired land, the increase relates back to the date of acquisition as they are merely doing what the Special Land Acquisition Officer ought to have done in the first instance. Therefore, interest is awardable on the increased amount also from the date of acquisition. The said general principle will not apply in two circumstances. One is where a statute specifies or regulates the interest. In that event, intere4st will be payable in terms of the provisions of the statute. The second is where a statue or contract dealing with the acquisition specifically bars or prohibits payment of interest on the compensation amount. In that event, interest will not be awarded. Where the statue is silent about interest, and there is no, express bar about payment of interest, any delay in paying the compensation or enhanced compensation for acquisition would required award of interest at the reasonable rate on equitable grounds. We are fortified in this view by the enunciation in Satinder Singh and Others Vs. Amrao Singh and Others, which has been reiterated in Hirachand Kothari (Dead) by Lrs Vs. State of Rajasthan and Another,
In Satinder Singh this Court while considering acquisition of land under the East Punjab Requisition of Immovable Property (Temporary Powers) Act, 1948 held that interest ca be awarded on equitable grounds. The following observations throw light on the issue: (AIR pp. 915-16, paras 17-19)
What then is the contention raised by the claimants,? They contend that their immovable property has been acquired by the State and the State has taken possession of it. Thus the have been deprived of the right to receive the income from the property and there is a time-log between the taking of the possession by the State and the payment of compensation by it to the claimants. During this period they have been deprived of the income of the property and they have not been able to receive interest from the amount o compensation. Stated broadly the act of taking possession of immovable property generally implies an agreement to pay interest on the value of the property and it is on this question has been considered on several occasions and the general principle on which the contention is raised by the claimants has been upheld. In Swift and Co. v. Board of Trade 1925 AC 520 (HL) (AC at p. 532) it has bee held by the House of Lords that:
...On a contract for the sale and purchase of land it is the practice f the Court of Chancery to require the purchaser to pay interest on his purchase money from the date when he took, or might safely have taken, possession of the land.
In Inglewood Pulp and Paper Co. v. New Brunswick Electric Power Commission 1928 AC 492 it was held by the privy Council that:
Upon the expropriation o land under statutory power, whether for the purpose of private gain or of good o the public at large, the owner is entitled to interest upon the principal sum awarded from the date when possession was taken, unless the state clearly shows a contrary intention.
Dealing with the argument that the expropriation with which the Privy Council was concerned wan to effected for private gain, but for the good of the public at large, it observed: (AC pp. 498-99)
...but for all that, the owner is deprived of his property in his case as much as in the other, and the rule has long been accepted in the interpretation of statutes that they are not to be held to deprive individuals of property without compensation unless the intention to do s is made quite clear.... The right to receive interest takes the place of the right to retain possession and is within the rule.
It would thus be noticed that the claim for interest proceeds on the assumption that when the owner of immovable property loses possession of it he is entitled t claim interest in place of right to retain possession.
In Patel Joitaram Kalidas and Others Vs. Spl. Land Acquisition Officer and Another, at page 348 the Hon''ble Apex Court has held that:
Having regard to the submissions urged on behalf of the Respondents we could have remitted that matter to the High Court to give an opportunity to the claimants to make a claim of interest before the High Court. That however, would only be a formality because having regard to the law laid down in Sunder Vs. Union of India, the High Court is bound to award the interest of the additional amount payable u/s 23(1-A) and solarium payable u/s 23(2) of the Act. Moreover, grant of interest on these amounts is consequential and automatic and involves only arithmetical calculation and not application of judicial mind or exercise of judicial discretion.
The Hon''ble Apex Court has held that Appellant/Land Owners are entitled to interest on the amount payable to them u/s 23(1-A) and Section 23(2) of the Land Acquisition Act.
In Shree Vijay Cotton and Oil Mills Ltd. Vs. State of Gujarat, (SCC p. 269, para 14) the Hon''ble Supreme Court has held that:
The High Court while appreciating the point in issue did not consider the mandatory provisions of Section 34 of the Act. The said section specifically provides that when the amount of compensation is not paid on or before taking possession of the land the Collector shall pay interest all 6 per cent per annum from the date of taking over possession. The payment of interest is not dependent on any claim by the person whose land has bee acquired. There can be no controversy or nay lis between the parties regarding payment of interest. When once the provisions of Section 34 are attracted it is obligatory for the collector to pay the interest. If he fails to do o the same can be claimed from the court in proceedings u/s 18 of the Act or even from the appellate court/courts thereafter:
The above view taken by the Hon''ble Apex Court makes it abundantly clear that the grant of interest on the award as well as the solatium is mandatory as well as obligatory under the provisions of Section 34 of Land Acquisition Act. However, the section has been amended in the year in 1982 to the extent that the rate of interest to be payable on the total amount has been enhanced from 6% to 9%. Further, according to the proviso of the Section 34 of Land Acquisition Act, 1894 it s again made clear under the provisions of the act that if such compensation is not paid within one year from the date when the possession is taken, the interest are on the said amount shall be of 15% per annum. The Land Acquisition Act, 1894 provides u/s 34 that:
Payment of interest - when the amount of such the land, the Collector shall pay the amount awarded with interest thereon at the rate of [nine per centum] per annum from the time of so taking possession until it shall have been so paid or deposited:
[provided that if such compensation or any part thereof is not paid or deposited within 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 or expiry of the said period of one year on the amount of compensation or part thereof which has not been paid or deposited before the date of such expiry.]
Undoubtedly value of the land awarded by Special Land Officer was highly inadequate and the subsequent enhancement by the Reference Court was also not in consonance with the actual value of the land prevent at the time of notification u/s 4 of the Act was issued. There is sufficient and cogent evidence in the form of sale deeds and also the oral evidence adduced by Rajendra Kumar Sharma (Ahlmad) DW-1 who has admitted in his statement that the land was within the municipal limit of District Meerut and the inspection report dated 29.07.1996 have been overlooked by the Reference Court.
Considering the inspection reports and the fact that the land is within the municipal limits of the Meerut, it will be just and proper to fix the market value of the land acquired @ of Rs. 115 Sq. Yard. Thus the appeals preferred by the land owners are allowed. It is held by this Court that the Appellants/land-owners are entitled to be awarded an amount at the rate of Rs. 115 per Sq. Yard for their respective areas. The Appellants/land-owners are also be entitled for a solatium of 30% under provisions of Section 23(1-A) of the Act and for interest as per Section 34 of the Act. Thus, consequently the appeals preferred by the State are dismissed. Interim orders if any in the State appeals are vacated. No orders as to costs.