Order
1. This appeal is against the judgment of the High Court dated 7-5-1997.
2. Briefly stated, the facts are as follows:
Section 4 notification was issued on 11-11-1977 for the purposes of acquiring 6640 sq metres land in Panaji. The land was being acquired for the purpose of establishing a museum. It is an admitted position that out of 6640 sq metres land 1125 sq metres land were paddy land, 2240 sq metres were salt pans and 3320 sq metres were a nallah. An award came to be passed by the Land Acquisition Officer on 21-3-1978. He fixed a price at Rs 11 per sq metre for paddy land, Rs 10 per sq metre for salt pan and Rs 6 per sq metre for nallah. The Land Acquisition Officer also apportioned the compensation on the basis that 1/3 of the compensation, for paddy land, was to be given to the appellants (herein) and the rest was to be given to the tenant; for the salt pan 4/5 to the appellants and 1/5 to the tenant and for the nallah the entire compensation was given to the appellants.
3. The appellants filed a reference which was disposed of by a judgment dated 27-2-1990. Before the Reference Court the appellants led the evidence of two witnesses AW 1 and AW 2. AW 1 was the power-of-attorney holder of the appellants. AW 2 was a Civil Engineer who gave evidence of valuation of the acquired land and proved a certificate dated 5-2-1963 which showed that the acquired land was within commercial zone. The appellants also relied upon other awards passed in respect of other lands which had been acquired. One of the awards, in LA Case No. 2 of 1979 was marked as “Ext. A-3” by consent of the parties.
4. The Reference Court considered the entire evidence and noted that it was proved that there was development all around the acquired land. The Reference Court took into account the other award which was in respect of acquisition of the land of the appellants itself for the Tourism Department. This land was situated just 200 metres from this land. On the basis of evidence before it, the Reference Court concluded that the figures given by AW 2 were reliable figures. The Reference Court accepted those figures and fixed price at Rs 80 per sq metre for paddy land, Rs 60 per sq metre for the salt pan and Rs 20 per sq metre for the nallah. The Reference Court apportioned compensation 50:50 between the appellants and the tenant in respect of paddy field. The Reference Court awarded solatium under Section 23(2) and interest under Sections 28 and 23(1-A).
5. The respondents filed an appeal before the High Court. The High Court has, by the impugned judgment, allowed this appeal. The High Court has held that the paddy field was subject to tenancy rights. The High Court has held that unless this land was made suitable by necessary filling of mud and other necessary development, it could not be presumed that the land would be suitable for construction activity. The High Court held that there was no material on record to show as to what would be the cost of transforming the paddy field and salt pan into a land suitable for construction activity. The High Court has held that in the absence of any evidence on this point, there was no scope for argument that the land was suitable for construction activity. The High Court has held that even though the lands in Case No. 2 of 1979 were merely 200 metres away that by itself was not sufficient to establish comparability of those lands with the acquired land. The High Court has held that merely because those lands were also paddy land was not sufficient to draw a conclusion that the acquired land should also be awarded at the same rate. The High Court has held that factors such as length and width of the land, the level of the land, type of the soil, location, etc. are the various factors which are required to be looked into and considered for the purposes of comparison between the land in question with the land which was the subject-matter of Land Acquisition Case No. 2 of 1979. The High Court has held that there was no evidence on these factors. The High Court has held that it could not be said that the two lands were comparable. The High Court then relied on another judgment delivered by it on 19-2-1997 in First Appeal No. 38 of 1990 and held that all points raised in the present case were covered by that judgment. The High Court set aside the award of the Reference Court on this basis.
6. We have heard the parties at great length. In our view the High Court has fallen into error in coming to the conclusion that there was no evidence on record in respect of developmental costs. The High Court had noticed that the award in Land Acquisition Case No. 2 of 1979 had been marked as an exhibit by consent. The Reference Court had also called for the record of that case and looked into that record. The Reference Court had found that the two lands were comparable. In that award developmental costs were taken into account. Further, the High Court completely overlooked the evidence of AW 2. During the course of his evidence he produced and proved, as an expert, a report prepared by him. In that report he had, inter alia, given the cost of development. This was as follows:
“Therefore, in order to fix the price of the land following deductions are made:
(a) 225/2.5 × 1.5 = Rs 135
(b) From 135, 15% is deducted for open space i.e 20.20 per sq m.
(c) 5% for light and water i.e Rs 6.25 per sq m.
(d) 5% for asphalting or road i.e Rs 6.25 per sq m.
(e) 30 cm of filling as per GSR rate 1974 which amounts to Rs 10.82 which corresponds to Rs 3.25 for paddy field only.
(f) Additional filling of 50 cm for salt pan which corresponds to Rs 8.65 per sq m.
(g) For nallahs which are about 2 m deep the cost of filling corresponds to Rs 32.50 per sq m.”
7. Thus a detailed cost analysis for development purposes had been given by the witness of the appellant. The High Court overlooked the fact that on this aspect this witness was not cross-examined. On this aspect the respondents had led no contrary evidence. Therefore, there was evidence of what the development cost would be. After taking into consideration the development cost and considering the fact that certain portions of the acquired land were paddy lands, salt pans and nallahs, the figures of Rs 80, 60 and 20 had been worked out.
8. It was submitted before us on the basis of the authority in the case of M.B Gopala Krishna v. Special Dy. Collector, Land Acquisition (1996) 3 SCC 594 that admittedly the acquired land was tenanted. It was submitted that the tenanted lands would not fetch the same amount as the land on which there were no tenants. This is not a reasoning on which the High Court has based the impugned judgment. Further, the tenants were only on the paddy land and the salt pans. Further, the price of Rs 80, 60 and 20 is arrived at after taking into consideration that these are tenanted lands. Therefore, we see no substance in this submission.
9. It was next submitted that the Reference Court was not right in awarding solatium under Section 23(2) and interest under Section 28 of the Land Acquisition Act, 1894. In support of this, reliance was placed upon the case of Union of India v. Raghubir Singh (1989) 2 SCC 754 and also upon Section 30(2) of the Land Acquisition (Amendment) Act, 1984. It was submitted that the notification was of 11-11-1977 and the award of the Collector had been passed on 23-3-1978. It was submitted that since this award was not between the period 30-4-1982 to 24-9-1984, retrospective effect could not have been given and these amounts could not have been awarded. We see no substance in this submission. The award of the Reference Court is dated 27-2-1990. When the Reference Court was considering this matter Sections 23(2) and 28 as amended were already on the statute-book. Therefore, the Reference Court was bound to take note of these provisions. In such a case no question arises of any retrospectivity. In Raghubir Singh case (1989) 2 SCC 754 the notification had been issued on 13-11-1959, the award had been made on 30-3-1963 and the Reference Court award was of 10-6-1968. It was only the High Court's decision which was after the amendment i.e on 6-12-1984. Therefore, question of retrospectivity had arisen in that case. In this case no such question arises.
10. It was next submitted that the Reference Court was in error in awarding interest under Section 23(1-A). It is fairly conceded that this amount could not have been awarded.
11. It is next submitted that the Reference Court has made a mistake in awarding compensation for 6690 sq metres. It is fairly conceded that the total area acquired was 6640 sq metres.
12. It must be mentioned that we have seen the judgment dated 19-2-1997 in First Appeal No. 38 of 1990 which was relied upon by the High Court. That judgment is in respect of acquisition of land in some other village, which land cannot be said to be comparable land. The High Court thus erred in relying on this judgment.
13. For the above reasons, we set aside the judgment of the High Court and restore that of the Reference Court. We, however, clarify that the compensation will be for 6640 sq metres only. We clarify that the award of interest at the rate of 12% under Section 23(1-A) will stand deleted.
14. The appeal stands disposed of accordingly. There will be no order as to costs.