Union Of India v. Ram Prasad And Another

Dipak Misra, J.:-

In this batch of appeals the challenge being to the composite award passed by the learned Additional District Judge, Hoshangabad, the reference Court under the Land Acquisition Act, 1894 (for brevity 'the Act') on 30-9-1992 they were heard analogously and are disposed of by this common judgment.

2. The facts requisite to be stated are that a proceeding was initiated before the Land Acquisition Officer, Hoshangabad forming the subject-matter of Revenue Case No. 36-A/1982 for acquisition of land admeasuring 11.87 acres situated at Khasra No. 115/1 at village Gurra, Tehsil Itarsi, Hoshangabad. A notification under section 4 of the Act and thereafter a notification under section 6 was published and eventually on 10-12-1977 possession was taken over. In the aforesaid khasra No. some land was diverted and on some houses were constructed. Claim proceedings for grant of compensation were initiated before the Land Acquisition Officer by different owners and the Land Acquisition Officer granted compensation in respect of the land and the structures standing thereon. The land owners accepted the same on protest. Applications were filed for referring the matter under section 18 of the Act to the reference Court and accordingly the Land Acquisition Officer referred the matter to the reference Court wherein the cases were registered.

3. The reference Court adverted to the facts put forth by the claimants which are necessary to be reverted in these appeals.

4. In reference case No. 1/80 the applicants Surat Singh and Premabai, husband and wife were granted Rs. 250/- for the land admeasuring 60 ft. and 70 ft.

5. In reference case No. 2/80 one acre land was acquired from Hajarilal and Rs. 2612.45 was granted as compensation. The applicant has prayed for compensation at the rate of Re. 1/- per square foot. After the death of said Hajarilal his widow and the son entered appearance in the reference case.

6. In reference case No. 3/80, 0.05 acre land was acquired and compensation of Rs. 3406.35/- was granted as compensation. On the said amount interest at the rate of 15% amounting Rs. 921.90/- was also given. The aforesaid land was non-diverted land. In addition to the aforesaid land, land admeasuring 2.90 acre was also acquired for which compensation of Rs. 10,913.13/- was granted. The claimants prayed for enhancement of compensation granted on the basis of valuation per square foot.

7. In claim case No. 4/80 land admeasuring 0.06 was acquired for which compensation of Rs. 2062.45 was awarded. After the death of said Hajarilal, his legal representatives had received the compensation under protest and prayed for compensation to the tune of Rs. 3/- per square foot i.e. Rs. 78372.00/-.

8. In reference case No. 5/80 2.90 acres of land was acquired and for the same Rs. 8452.50 was granted. On the aforesaid sum a solatium of 15% and interest at the rate of 6% were also granted. 81064 square feet of the aforesaid land was said to be diverted and rest was undiverted. The total land was 108850 square feet and hence, at the rate of Rs. 3/- per square foot a compensation to the tune of Rs. 3,26,550/- was prayed for with solatium and interest.

9. In reference case No. 6/80 a land of 75 ft. x 40 ft. was acquired and compensation of Rs. 240/- was granted. The applicants demanded compensation of Rs. 3000/-.

10. In reference case No. 7/80 the plot of applicant, Jankibai admeasuring 1,440 sq. ft. on which a house was built, was acquired and compensation of the land was determined at Rs. 120/- by the Collector under the Act. The applicant has prayed for Rs. 11440/- contending that there were fruit bearing trees.

11. In reference case No. 8/80 the plot belonging to the applicant Ramprasad admeasuring 2304 sq. ft. on which a house was constructed was acquired and a compensation of Rs. 7333.28 was given. The applicant had prayed for compensation of Rs. 10,000/- for the house, Rs. 2304/- for diverted land and Rs. 2100/- for fruit bearing trees.

12. In reference case No. 9/80 48 ft. x 30 ft. land was acquired and compensation of Rs. 120.12 was given to the applicant. The applicant contended that there was a house constructed on the said land and prayed for Rs. 2000/- for the same and Re. 1/- per sq. ft. for the land.

13. In reference case No. 10/80 a plot of 30 ft. x 40 ft. i.e. 1440 sq. ft. has been acquired and compensation of Rs. 721/- was granted. The applicant has demanded a compensation of Rs. 5,000/- stating that there was a house constructed on the aforesaid land. A sum of Rs. 600/- was claimed towards the fruit bearing trees.

14. In reference case No. 17/81 a land admeasuring 1.05 acres was acquired from the applicants Mahesh Prasad and Jageshwar Prasad for which Rs. 4522.23/-. The applicants have demanded the compensation of the aforesaid land on the basis of Rs. 3/- per sq. ft. i.e. Rs. 1,35,000/- in toto with 30% solatium and interest at the rate of 9%.

15. The reference Court framed as many as three issues and came to hold that the claimants in all cases would be entitled to compensation at the rate of Re. 1/- per square foot. In addition, 30% solatium was also granted under section 23(2) of the Act and 9% interest under section 28 of the Act from the date of taking over of the possession i.e. 10-12-1977.

16. Questioning the correctness of the award passed by the reference Court Mrs. Indira Nair, learned senior counsel along with Mr. Sanjeet Singh has submitted that when a large chunk of land was acquired, it was not appropriate on the part of the reference Court to grant compensation on square foot basis. The learned senior counsel has further put forth that the respondents were not entitled to get the benefit under section 23(1A)(2) and section 28 of the Act. However, the learned senior counsel submitted that the compensation granted with regard to houses and trees are not assailed by the appellant.

17. Mr. K.S. Thakur, learned counsel for the land owners respondents has submitted that though a large chunk of the land was acquired but the small portion was acquired from most of the land owners and hence, price determination on per square foot basis in the case at hand cannot be found fault with. As far as grant of solatium and interest are concerned the learned counsel has supported the order of the reference Court.

18. Before we advert to specific points urged by the learned counsel for the parties, we think it appropriate to refer to certain decisions in the field. In Ahmedabad Municipal Corporation and others vs. Shardaben and others, (1996) 8 SCC 93 the Apex Court expressed the view that a burden is always on the claimants to prove by adducing reliable evidence that the compensation offered by the Land Acquisition Officer is inadequate and the lands are capable fetching higher market value. It is the duty of the Court to closely scrutinise the evidence, apply the test of a prudent and willing purchaser, i.e., whether he would be willing to purchase in open and normal market conditions of the acquired lands and then determine just and adequate compensation.

19. In Hookiyar Singh and others vs. Special Land Acquisition Officer Moradabad and another, (1996) 3 SCC 766 Their Lordships expressed the view that the Court must not indulge in feats of imagination but, sit in the armchair of a prudent purchaser and put a question to itself whether as a prudent purchaser it would offer the same price in the open market as is to be determined.

20. In State of U.P. and others vs. Ram Kumari Devi (Smt.) and others, (1996) 8 SCC 577 the Supreme Court ruled that when 13.75 acres of land was offered for sale in an open market, no prudent man would have credulity to purchase the land on square foot basis. Similar view was taken in the case of Gujarat Industrial Development Corporation vs. Narrottambhai Morarbhai and another, (1996)11 SCC 159.

21. Yet in another decision rendered in the case of G. Narayan Rao vs. Land Acquisition Officer, (1996) 10 SCC 607 it was ruled that it must be established, as a fact, that the potential purpose does exist on the date of notification, the prevailing conditions in the market, the existence of the construction of building activities in the neighbourhood and that other lands in the adjacent neighbourhood possessed similar conditions.

22. In the case of Kanwar Singh and others vs. Union of India, (1998) 8 SCC 136 it has been expressed that the amount of compensation for the land acquired depends on the market value of the land on the date immediately before the notification under section 4 of the Act or when same land is acquired and offer of compensation is made through an award. In the aforesaid case it was ruled that the consideration in terms of price received for land under bona fide transactions on the date or preceding the date of notification issued under section 4 of the Act generally shows the market value of the acquired land and the market value of the acquired land is to be assessed in terms of those transactions. For attracting the conception of future potentiality of the land, location of the land cannot be ignored as has been held in the case of Hasan Ali Walimchand (dead) by LRs. vs. State of Maharashtra, (1998) 2 SCC 388.

23. In this context we may refer with profit to the decision rendered in the case of Land Acquisition Officer Revenue Divisional Officer, Chitor vs. L. Kamalamma (Smt.) dead by LRs and others K. Krishnamachari and others, (1998) 2 SCC 385 wherein it has been held that when no sales of comparable land are available where large chunks of land had been sold, even land transaction in respect of smaller extent of land could be taken note of as indicating the price that it may fetch in respect of large tracts of land by making appropriate deductions such as for development of the land by providing enough space for roads, sewage, drains, expenses involved information of a layout, lump sum payment as also the waiting period required for selling the sites.

23A. In the case of Kasturi and others vs. State of Haryana, (2003) 1 SCC 354 it has been opined that there is a difference between a developed area and an area having potential value, which is yet to be developed. 20% deduction towards development charge as against the normal 1/3rd from the amount of compensation would be regarded as justified.

24. In the case of Communidade of Morombi-o-Pequeno vs. State of Goa, (2004) 12 SCC 430 the Apex Court expressed the view taking note of the factum that the award of the reference Court was dated 27-2-1990 that sections 23(2) and 28 as amended were already on the statute book and, therefore, the reference Court was bound to take note of these provisions.

25. Recently in the case of Ahad Bros vs. State of M.P., 2005(2) MPLJ 5(SC) - (2005) 1 SCC 545 the Apex Court has expressed the view though agricultural land that has been acquired, yet it was not used for agricultural purpose on the date issuing of notification under section 4(1) of the Act it had the potentiality for development and, therefore, it was just and appropriate to deduct 30% towards development charges out of the amount of compensation payable to the appellants.

26. Keeping the aforesaid pronouncement of law in view we are of the considered opinion that in the case at hand grant of compensation on per square foot basis would be appropriate as far as where small chunk of the land has been acquired. Thus, the grant of award on that score in the reference case Nos. which form the subject-matter of appeals, namely, FA No. 16/1993, FA No. 17/1993, FA No. 18/1993, FA No. 19/1993, FA No. 20/1993, FA No. 21/1993 and FA No. 22/1993 are upheld.

27. As far as reference cases which form the subject-matter of First Appeals No. 12/1993, FA No. 13/1993, FA No. 14/1993 and 15/1993 as the land acquired to be diverted and hence, 30% of the awarded sum has to be deducted and the price is determined at 70 paise per square foot.

28. The next issue that arises for consideration is whether grant of interest at the rate of 9% under section 28 of the Act and the solatium at the rate of 30% is erroneous or not. In this context, we may refer to the case of K. S. Paripoornan vs. State of Kerala, 1995 SCW 1004 wherein a three Judge Bench of the Apex Court after referring to paragraph 31 of the decision rendered in the case of Union of India vs. Raghubir Singh, (1989) 2 SCC 754 in paragraphs 4 and 5 came to hold as under:

"4. This Court thereby clearly held that even in the pending reference made before April, 30, 1982 if the Civil Court makes an award between April 30, 1982 and September 24, 1984 section 30(2) gets attracted and thereby the enhanced solatium was available to the claimants. Since section 30(2) deals with both the amendment under section 23(2) and the amendment to section 28 of the principal Act by section 15(b) and section 18 respectively by parity of the reasoning the same ratio applies to the awards made by the Civil Court between those dates. The conflict of decisions as to whether section 23(2) as amended by section 15(b) of the Amendment Act through section 30(2) of the transitory provisions would be applicable to the pending appeals in the High Court and the Supreme Court was resolved in the Rabhuvir Singh's case, AIR 1989 SC 1933 by the Constitution Bench holding that the award of the Collector or the Court made between April, 30, 1982 and September, 24, 1984 would alone get attracted to section 30(2) of the transitory provision. The restricted interpretation would not be understood to mean that section 23(2) would not apply to the awarded decree of the Civil Court pending at the time when the Act has come into force or thereafter. In this case, admittedly the award of the Civil Court was after the Act has come into force, namely, February 28, 1985.

5. Therefore, 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 Court shall direct to pay interest on such excess at the rate of 9% per annum from the date on which the Collector took possession of the land to the date of payment of such excess into the Court. By operation of the proviso if such excess or any part thereof is paid into the Court after the date of expiry of a period of one year from the date on which compensation is taken, interest at the rate of 15% per annum shall be payable from the date of the said period of one year on the amount of such excess or part thereof which has not been paid into the Court before the date of such expiry. Accordingly, the appellant is entitled to the enhanced interest @ 9% from the date of taking possession namely, January 15, 1981 and March 11, 1981 respectively for one year @ 9% and thereafter 15% till the date of deposit made by the Collector. Admittedly, the deposit of the enhanced compensation was made on October, 20, 1986 and December 3, 1986 therefore, the interest shall be calculated at the enhanced rates for the aforesaid record."

29. In this context we may usefully refer to the decision rendered in the case of Major Pakhar Singh Atwal and others vs. State of Punjab and others, AIR 1995 SC2185 wherein the Apex Court granted solatium at the rate of 30% on the enhanced compensation and interest at the rate of 9% from the date of taking possession for one year and after expiry of one year at the rate of 15% per annum till the date of payment or deposit of the additional compensation before the Tribunal whichever is earlier.

30. In this context, we may also refer with profit to the decision rendered in the case of Arjun Sethi vs. L.A. Collector, Cuttack, and others, 85 (1988) CLT 742 wherein the learned single judge after discussing the decisions in the field culled out the principles as under :

"(i) If the award of the Collector is after 13-4-1982, the claimant is entitled to all the benefit of the amended Act;

(ii) If the award of the Collector is before 13-4-1982, but the award of the Civil Court in reference under section 18 of the Act is after 18-4-1982, the claimant is entitled to the benefits under section 23(2) and section 28, as amended by the Amending Act, but is not entitled to the benefit under section 23 (1-A) of the Act;

(iii) If the award of the Collector as well as that of the Civil Court under section 18 of the Act is prior to 13-4-1982, the claimant is not entitled to the benefits of the amended Act in the appeals against such awards."

31. In view of the aforesaid pronouncement of law, grant of solatium at the rate of 30% is in consonance with the requirement of the statute. Similarly grant of interest under section 28 of the Act cannot be found fault with. Hence, we do not find any error on that score.

32. At this juncture, we think it condign to state whether there should be grant of interest on the whole amount which includes solatium and interest. In this context, we may profitably refer to the decision rendered in the case of Sunder vs. Union of India, (2001) 7 SCC 211 wherein it has been held as under:

"26. We think it useful to quote the reasoning advanced by the Chief Justice S. S. Sandhawalia of the Division Bench of the Punjab and Haryana High Court in State ofHaryana vs. Kailashwati :

"Once it is held as it inevitably must be that the solatium provided for under section 23(2) of the Act forms an 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 alone and in terms talks of compensation or the sum equivalent thereto. The interest awardable under section 28 therefore would include within its ambit both the market value and the statutory solatium. It would be thus evident that the provisions of section 28 in terms warrant and authorise the grant of interest on solatium as well."

27. In our view the aforesaid statement of law is in accord with the sound principles of interpretation. Hence the person entitled to the compensation awarded is also entitled to get interest on the aggregate amount including solatium." In view of the aforesaid the benefits are to be computed and extended.

33. Consequently, the FA No. 12/1993, FA No. 13/1993, FA No. 14/1993 and FA No. 15/1993 are allowed in part and the price per. square foot is determined as 70 paise. In other appeals the award granted by the reference Court as regards the compensation, solatium and interest are affirmed. In addition, it is directed that in all appeals, the claimants would get interest as has been given in the case of Sunder (supra). In the facts and circumstances of the case, the parties shall bear their respective costs of the appeals.

Appeals partly allowed.