Allowed

Rakesh Kumar Tyagi and 7 Others v. State of U.P. Thru Collector and Another

Allahabad HC5 Mar 2020FAPLD/162/2017

Case brief

AI extract

What is this about?

The Court condoned a 23-year delay in filing a first appeal regarding land acquisition compensation. The appeal was allowed on merits, awarding enhanced compensation per square yard without interest for the delay period, but with interest on future payments. Costs were not awarded.

What did the court decide?

Compensation fixed at Rs. 297 per square yard plus 30% solatium; no interest for delay period; interest at 9% from order date; appeal disposed.

Rakesh Kumar Tyagi and 7 Others Vs State of U.P. Thru… — Land Acquisition | Allahabad HC (2020)

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Court No. - 53

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Case :- FIRST APPEAL DEFECTIVE No. - 162 of 2017

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Appellant :- Rakesh Kumar Tyagi And 7 Others Respondent :- State Of U.P. Thru Collector And Another Counsel for Appellant :- Shiv Sagar Singh Counsel for Respondent :- Amit Manohar,Anuj Srivastava

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Hon'ble Vivek Agarwal,J.

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Sri Shiv Sagar Singh, learned counsel for the appellant and Sri Shivam Yadav, learned counsel for the respondents.

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Heard on Civil Misc. (Delay Condonation) Application No.169481 of 2017. There is delay of 23 years 330 days in filing this first appeal.

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Before adverting to the facts of the delay condonation application, certain bare facts of the case are necessary to be reproduced namely, notification u/s 4(1) of the Land Acquisition Act, 1894, was issued on 15.3.1988 and was published on 1.4.1988. Possession of the land in question was taken on 30.3.1989 and 10.5.1989, whereafter the competent authority i.e. land acquisition officer passed award dated 1.2.1991 and fixed compensation of the acquired land at Rs.72 per square yard.

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Being aggrieved of the decision passed by the competent authority under the Land Acquisition Act, reference was filed before the Court of competent jurisdiction which decided the compensation @ Rs.108 per square yard and further directed for payment of 30% solatium and 12% interest w.e.f. 2.4.1988 till date of actual taking over of the possession and thereafter @ 9% till the date of actual payment.

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It is mentioned in the delay condonation application that the head of the family who was doing pairvi died and after his death, nobody was so competent and was having knowledge of the pending cases arising out of land acquisition proceedings and the reference which was answered by the Court of learned 8th Additional District Judge, Ghaziabad, vide order dated 24.3.1993.

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That other tenure holders against the judgement and order dated 24.3.1993 filed first appeal u/s 54 of the Land Acquisition Act before the High Court in the years 1993 onwards and when appellant came to know of filing of such appeals and the judgement and order dated 16.4.2016 passed by this High

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Court, present appeal has been filed inasmuch as Courts have directed payment of compensation @ Rs.297 per square yard.

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Reliance is placed on the judgment of Supreme Court in case of K. Subbarayudu and others Vs. The special Deputy Collector (Land Acquisition) passed in Civil Appeal No.9288 of 2017 arising out of SLP (C) No.30562 of 2016 wherein, delay of 3671 days' in filing the appeal has been condoned by the Hon'ble Supreme Court placing reliance on its earlier judgment in case of State of Nagaland Vs. Lipok AO and others as reported in (2005) 3 SCC 752 wherein, it has been held as under:-

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"Section 5 is to be construed liberally so as to do substantial justice to the parties. The provision contemplates that the Court has to go into the position of the person concerned and to find out if the delay can be said to have been resulted from the cause which he had adduced and whether the cause recorded in the peculiar circumstances of the case is sufficient." and has further held that the true guidance whether the litigant has acted with due diligence "since the appellants/claimants are the agriculturists whose lands were acquired and when similar situated agriculturists were given a higher rate of compensation, there is no reason to decline the same to the appellants. Merely on the ground of delay such benefit cannot be denied to the appellants. The interest of justice would be served by declining the interest on the enhanced compensation and also on the solatium and other statutory benefits for the period of delay".

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On the other hand, Sri Shivam Yadav, learned counsel for the respondent-NOIDA has placed reliance on Division Bench Judgment of this Court in case of Fundan and 2 others Vs. State of U.P. decided on 08.07.2015 in First Appeal Defective No.175 of 2015 wherein, it has been held that explanation rendered does not satisfy the observations of the Apex Court and has refused to condone the delay.

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Placing reliance on such decision of Division Bench, it is submitted that delay has since not been properly explained, need not be condoned and appeal be dismissed.

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In the light of the judgment of Supreme Court in case of K. Subbarayudu and others Vs. The special Deputy Collector (Land Acquisition) (supra) , this Court is of the opinion, if delay is condoned and appellants are deprived of the benefit of interest on the enhanced compensation so also on the solatium and other statutory benefits for the period of delay, that will meet the ends of justice.

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In view of such facts, delay in filing the appeal is condoned.

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Application is allowed.

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Order on appeal.

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On merits, as it is not disputed by Sri Shivam Yadav, learned counsel for the respondents that the ratio of the law laid down in case of Khazan and others (supra) squarely covers the facts and circumstances of the present case so also the judgment in case of Pradeep Kumar Vs. State of U.P. (First Appeal No. 522 of 2009), it is directed that the compensation admissible to the appellants will be @ Rs.297 per square yard. In addition to it, appellants will also be entitled to 30% solatium required under Section 23(2) but will not be entitled to any interest from the date of the order passed in the reference petition i.e. 24.3.1993 till the filing of this first appeal on 14.5.2017. However, they will be entitled to interest after 14.5.2017 till the date of actual payment @ 9% per annum.

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As far as aspect of the defective appeal is concerned, the only defect is deficiency of Court Fees, therefore, it is directed that same be recovered/adjusted in accordance with rules, while preparing final decree by the Department.

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There is no order as to costs.

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In the above terms, appeal stands disposed off.

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Order Date :- 5.3.2020 Vikram/-

Rakesh Kumar Tyagi and 7 Others v. State of U.P. Thru Collector and Another

Case brief

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Rakesh Kumar Tyagi and 7 Others v. State of U.P. Thru Collector and Another

Case brief

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