Partly allowed

Kantoo and Others v. the Collector

Allahabad HC27 Feb 2019FAPL/260/1996

Case brief

AI extract

What is this about?

This case decided issues of compensation, solatium, and interest in a land acquisition dispute. The court affirmed the market value determination, held that solatium is payable only on market value not additional compensation, and applied enhanced interest rates based on the time the award was made.

What did the court decide?

First Appeal No. 260 of 1996 is partly allowed regarding solatium and interest; First Appeal No. 289 of 1985 is dismissed.

Kantoo and Others Vs the Collector — Land Acquisition | Allahabad HC (2019)

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Court No. - 59

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1. Case :- FIRST APPEAL No. - 260 of 1996

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Appellant :- Kantoo And Others Respondent :- The Collector Counsel for Appellant :- D.K.Agarwal, A. Hajela,Devendra Kumar,Kr. R.C.Singh,Shyam Singh Sengar Counsel for Respondent :- S.C.,Praveen Kumar

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Case :- FIRST APPEAL No. - 289 of 1985

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Appellant :- District Land Acquisition Officer Respondent :- Kantoo And Others Counsel for Appellant :- S.C.,Praveen Kumar Counsel for Respondent :- Kr. R.C. Singh,Shyam Singh Sengar

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Hon'ble Surya Prakash Kesarwani,J.

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Personal affidavit of Sri Ram Kumar, Regional Manager, Central Warehousing Corporation, Lucknow, dated 25.2.2019, has been filed today, which is taken on record.

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Heard Sri Ashok Mehta, learned Senior Advocate assisted by Sri Shyam Singh Sengar, learned counsel for the claimant-appellant, Sri Praveen Kumar alongwith Sri N.C. Tripathi, learned counsel for the Central Warehousing Corporation and Sri Girish Vishwakarma, learned standing counsel for the State-respondent in First Appeal No. - 260 of 1996 and also heard Sri Praveen Kumar alongwith Sri N.C. Tripathi and learned standing counsel as counsel for the appellant and Sri Ashok Mehta, as counsel for the respondent in First Appeal No.289 of 1985.

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Both these first appeal arise from the impugned judgment. The First Appeal No. - 260 of 1996 has been filed by the claimants whereas the First Appeal No.289 of 1985 has been filed by the State and the Central Warehousing Corporation.

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On 19.11.2018, this Court passed an order requesting the learned counsel for the claimants and the acquiring body to show their bonafides that they are really aggrieved by the amount of compensation fixed and they wish to lead additional evidence even after 33 years which they have yet not done.

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In response to the aforesaid orders the claimants as well as the State and acquiring body have not led any additional evidence. They stated that they do not wish to file any additional evidence which was noted in the orders dated 9.1.2019 and 6.2.2019. Thus, from these facts it is clear that the parties do not wish to lead any additional evidence in these appeals.

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Sri Ashok Mehta, learned Senior Advocate appearing for the claimants submits as under : (i) The compensation determined by the Reference Court is incorrect inasmuch as the land of the claimants was irrigated one and it was “Jungle Dakar Aabi” and not “ Jungle Dakar Khaki”. (ii) The court below has committed manifest error of law and fact in not to relying upon the sale deed exemplars filed by the claimants. (iii) Solatium under Section 23(2) of the Land Acquisition Act, 1894 (hereinafter referred to as “the Act”) should have been granted @ 30% instead of @ 15 % and it should have been calculated on the market value alongwith additional compensation as provided in sub-Section 1A of Section 23 which was not done by the court below. (iv) The rate of interest under Section 28 read with Section 34 of the Act should have been applied @ 9% instead of @ 6% inasmuch as both the provisions were amended by Act No. 68 of 1984. These provisions were enforced w.e.f. 30.4.1982 and not with effect from 24.9.1984 as provided by Section 30 of the amending Act No.68 of 1984.

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Sri Praveen Kumar, learned counsel for the Central

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Warehousing Corporation submits as under :

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(i) The entire amount in terms of the impugned judgment has already paid and nothing remains to be paid to the claimants. (ii) The court below should have applied the market value as was determined by the Special Land Acquisition Officer.

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(iii) The additional amount of solatium is not payable on the additional amount of compensation.

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(iv) The interest @ 6% determined by the court below in accordance with law inasmuch as the amended provisions of Section 28 and Section 34 came into force w.e.f. 24.9.1984.

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I have carefully considered the submissions of learned counsels for the parties and with their consent the following questions are being framed for determination : (i) Whether the reference court has correctly and lawfully determined the market value of the acquired land @ Rs.5071.75 per pucca bigha? (ii) Whether solatium Section 23(2) is payable on the additional amount of compensation under Section 23(1A) of the Act, 1894? (iii) Whether under the facts and circumstances of the case, interest @ 9% is payable to the claimants under Section 28 read with Section 34 of the Act?

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Question No.1

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By Notification under Section 4(1) of the Act dated 26.9.1978, land measuring 45-15-0 bighas of Village – Pilkhani, Pargana Sultanpur, Tehsil -Nakur, District – Saharanpur, was acquired for Central Warehousing Corporation for construction of Central Warehousing Depot. Notification under Section 6 of the Act was issued on 26.10.1978, which was published in the U.P. Gazette on 11.11.1978. The possession was taken on 15.12.1978. The Special Land Acquisition Officer made the award on 30.10.1982 determining the

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market value of the acquired land on the basis of soil quality, ranging from Rs.1717.42 per pucca bigha to Rs.3226.87 per pucca bigha.

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Dissatisfied with the offer made under the aforesaid award the claimants filed L.A. Case No.13 of 1983. They filed in evidence a sale deed dated 23.2.1978 executed by one Sri Amar Singh in favour of Siya Nand transferring 3 biswas and 7 dhurs abadi land. The aforesaid sale deed was marked as paper no.46 Kha and a copy thereof has been filed alongwith the paper book. The reference court found that the land transferred through the aforesaid sale deed (paper no.46 Kha) was an abadi land and it was surrounded by abadi whereas acquired land of the claimants was agricultural land. This finding of fact does not suffer from any infirmity as is also evident from the sale deed exemplar (paper no.46 Kha ) in which the fact of the aforesaid land to be abadi and surrounded by abadi is recorded. Therefore, the reference court has not committed any error of law or fact not to rely upon this sale deed exemplar to determine the market value of the acquired land.

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So far as the sale deed dated 23.2.1978 relied by the S.L.A.O. is concerned, I find that this sale deed was not even filed by the State in evidence before the reference court. That apart, the reference court found that the acquisition was made for construction of Central Warehousing Depot and not for agricultural purposes. Therefore, in the absence of any relevant sale deed exemplar filed by either of the parties, the reference court rightly took the view that land of highest quality soil nearby situated as found by the S.L.A.O. to be Rs.5071.75 should have been applied to determine the market value of the acquired land.

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Thus, under the circumstances, the market value of the acquired land determined by the reference Court does not suffer from any infirmity and it has been determined correctly. The question No.1 is answered accordingly.

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Question No.2

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Section 23(1-A) provides for compensation in addition to the market value of the land @ 12 % per annum on the market value for the period commencing on and from the date of publication of the Notification under Section 4(1) in respect of the land, to the date of the award of the Collector or the date of taking possession of the land, which ever is earlier. Sub section 2 of Section 23 provides for solatium on the market value in consideration of compulsory nature of the acquisition. Thus, the solatium is payable on market value and not on the additional amount of compensation under sub Section 1-A of Section 23 of the Act. Therefore, the claimants are not entitled for solatium on the additional amount of compensation, if any, under Section 23(1A) of the Act.

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Therefore, question no.2 is answered in negative and it is held that the claimants are not entitled for solatium on additional amount of compensation under Section 23(1A) of the Act.

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Question No.3

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To answer this question it would be relevant to refer to the judgment of Hon'ble Supreme Court in Sarup Singh and another Vs. Union of India and another, 2011 (11) SCC 198 in which Hon'ble Supreme Court has clarified the law as under:

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“ 13.Similarly, an amendment was brought in to the provisions of Section 34 by way of Amendment Act of 68 of 1984, which deals with the quantum of compensation of interest to be paid to the claimants. In the said section interest became payable on amendment at 9 per cent per annum for the period of first one year from the date on which possession was taken, and thereafter, at the rate of 15 per cent per annum on expiry of the period of one year on the amount of compensation. The aforesaid amendment was made effective by the amending Act of 68 of 1984 from 24.09.1984.

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14.We may also refer to the provisions in Sub-

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Sections 30 (1) & 30 (2) of the Act of 68 of 1984 regarding application of the provisions of the aforesaid amendment to proceedings pending on or after 30.04.1982 which read as follows: -

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“30. Transitional Provisions –

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(1) The Provisions of sub-section (1A) of Section 23 of the principal Act, as inserted by clause (a) of Section 15 of this Act, shall apply, and shall be deemed to have applied, also to, and in relation to: (a) every proceeding for the acquisition of any land under the principal Act pending on the 30th day of April, 1982 [the date of introduction of the Land Acquisition (Amendment) Bill, 1982, in the House of the People], in which no award has been made by the Collector before that date.

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(b) every proceeding for the acquisition of any land under the principal Act commenced after that date, whether or not an award has been made by the Collector before the date of commencement of this Act.

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(2) The provisions of sub-section (2) of Section 23 and Section 28 of the principal Act, as amended by clause (b) of Section 15 and Section 18 of this Act respectively, shall apply, and shall be deemed to have applied, also to, and in relation to, any award made by the Collector or Court or to any order passed by the High Court or Supreme Court in appeal against any such award under the provisions of the principal Act after the 30th day of April, 1982 [the date of introduction of the Land Acquisition (Amendment) Bill, 1982, in the House of the People] and before the commencement of this Act..”

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15.The aforesaid amended provisions and their application came to be considered in various decisions of this Court. Reference in this connection can be made to the decision of Union of India & Anr. v. Raghubir Singh (Dead) by Lrs. Etc. reported in (1989) 2 SCC 754. This Court in the aforesaid case was called upon to determine as to which awards, references and/or appeals would be entitled to avail of the enhanced rates of interest by virtue of the Amendment of 1984. In adjudicating the matter, this Court clearly held that the award made by the Collector under Section 11 of the Act made between 30-4-1982 and 24-9- 1984, i.e., the dates of introduction of the Land Acquisition Amendment Bill, 1982 in the House of the People and that of commencement of operation of the Land Acquisition (Amendment) Act, 1984 respectively, will be entitled to the enhanced rates under the Amendment. This Court also held that an award made by the Principal Civil Court of Original Jurisdiction under Section 23 of the parent Act on a reference made to it by the

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Collector under Section 19 of the Act between the aforesaid dates would also be entitled to the same, even though it be upon reference from an award made before 30-4-1982,. in which this Court held as follows: -

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“31. In construing Section 30(2), it is just as well to be clear that the award made by the Collector referred to here is the award made by the Collector under Section 11 of the parent Act, and the award made by the Court is the award made by the Principal Civil Court of Original Jurisdiction under Section 23 of the parent Act on a reference made to it by the Collector under Section 19 of the parent Act. There can be no doubt that the benefit of the enhanced solatium is intended by Section 30(2) in respect of an award made by the Collector between 30-4-1982 and 24-9-1984. Likewise the benefit of the enhanced solatium is extended by Section 30(2) to the case of an award made by the Court between 30-4-1982 and 24-9-1984, even though it be upon reference from an award made before 30-4-1982. On the question of appeals to the High Court or Supreme Court, however, this Court adopted a different stand. It held:-

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32. The question is: What is the meaning of the words “or to any order passed by the High Court or Supreme Court on appeal against any such award?” Are they limited, as contended by the appellants, to appeals against an award of the Collector or the Court made between 30-4-1982 and 24-9-1984, or do they include also, as contended by the respondents, appeals disposed of between 30-41982 and September 24,1984 even though arising out of awards of the Collector or the Court made before 30-4-1982. We are of opinion that the interpretation placed by the appellants should be preferred over that suggested by the respondents. The submission on behalf of the respondents is that the words ‘any such award’ mean the award made by the Collector or Court, and carry no greater limiting sense; and that in this context, upon the language of Section 30(2), the order in appeal is an appellate order made between 30-4- 1982 and 24-91984 — in which case the related award of the Collector or of the Court may have been made before 30-4-1982. To our mind, the words ‘any such award’ cannot bear the broad meaning suggested by learned counsel for the respondents. […] The words ‘any such award’ are intended to have deeper significance, and in the context in which those words appear in Section 30(2) it is clear that they are intended to refer to awards made by the Collector or Court between 30-4-1982 and 24-9-1984. In other

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words Section 30(2) of the Amendment Act extends the benefit of the enhanced solatium to cases where the award by the Collector or by the Court is made between 30-4-1982 and 24-9-1984 or to appeals against such awards decided by the High Court and the Supreme Court whether the decisions of the High Court or the Supreme Court are rendered before 24-9- 1984 or after that date. All that is material is that the award by the Collector or by the Court should have been made between 30-4-1982 and 24-9-1984 […] [T]o our mind it must necessarily intend that the appeal to the High Court or the Supreme Court, in which the benefit of the enhanced solatium is to be given, must be confined to an appeal against an award of the Collector or of the Court rendered between 30-4-1982 and 24-9-1984. [...] 34. Learned counsel for the respondents has strenuously relied on the general principle that the appeal is a rehearing of the original matter, but we are not satisfied that he is on good ground in invoking that principle. [...] If the proceeding has terminated with the award of the Collector or of the Court made between the aforesaid two dates, the benefit of Section 30(2) will be applied to such award made between the aforesaid two dates. If the proceeding has passed to the stage of appeal before the High Court or the Supreme Court, it is at that stage when the benefit of Section 30(2) will be applied. But in every case, the award of the Collector or of the Court must have been made between 30-41982 and 24-9- 1984.”

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16.This decision of the Court, passed by a Bench of 5 Judges, squarely applies to the appeals in this case, and makes it amply clear that the award of the Land Acquisition Officer/Collector or of the Reference Court must have been made between the aforesaid stipulated period, i.e., between 30.4.1982 and 24.9.1984. ”

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Applying the ratio of above quoted judgment of Hon'ble Supreme Court in the case of Sarup Singh and another (supra) on the facts of the present case I find that since the award was made by the SLAO on 30.10.1982 and the reference court passed the impugned judgment on 30.8.1984 and, therefore, the provisions of Section 23(2) and 28 as amended by Act 68 of 1984 shall apply to the claimants. Question No.3 is answered accordingly.

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Thus, the claimants are entitled for additional amount of

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compensation, if any, under Section 23(1A), solatium @ 30% under Section 23(2) and interest at the rate as provided by the amended provision.

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In view of the above discussion, the First Appeal No. 260 of 1996 (Kantoo and Others Vs. The Collector) is partly allowed to the extent indicated above. The First Appeal No. 289 of 1985 (District Land Acquisition Officer Vs. Kantoo and Others) is hereby dismissed .

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Order Date :- 27.2.2019/vkg

Kantoo and Others v. the Collector

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Kantoo and Others v. the Collector

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