Collector, Varanasi vs Harballabh Narain Singh

M.N. Shukla, J.

This is an appeal by special leave, granted by the High Court to the Collector of Varanasi under clause (b) of subsection (1) of section 381 of the Nagar Mahapalika Adhiniyam questioning the validity of a decision of the Tribunal constituted under section 371 of the Adhiniyam, awarding certain amount as compensation to the respondent for compulsory acquisition of his land.

Land measuring O. 49 acres, situte in village Bhadaini, pargana Dehat Amanat, Varanasi, was acquired under project No. 3 of 194950 known as (Bhelupur Homing and General Development Scheme). Notification under section 4 of the Land Acquisition Act (section 36 of the U.P. Town Improvement Act) was issued on 17121949 and notice under Section 9 of the Land Acquisition Act (section 42 of the U.P. Town Improvement Act) was issued on 2241952. The land in question is adjacent to a palatial building belonging to the claimant Sri Harballabh Narain Singh (now substituted by his heirs). The building, however, has not been acquired. The acquired land, which is approximately 15 Biswas in area, has about 95 trees and a pucca boundary wall.

The respondent claimed a total compensation of Rs 76,128.50 Paise before the Land Acquisition Officer who, however, awarded a total amount of Rs. 6,394.50 Paise only as compensation, the claimant challenged the award of the Land Acquisition ''Officer and a reference was accordingly made to the Tribunal under section 18 of the Land Acquisition Act. Before the Tribunal the claimant reduced his claim and asked for Rs. 39,198.00 only, apart from 15 per cent, solatium for compulsory acquisition. The Tribunal awarded a total amount of Rs. 12,83630 Paise together with interest at the rate of 6 per cent, per annum on the amount in excess of that which had already been deposited with effect from the date of possession. Aggrieved by this decision, the Collector of Varanasi has preferred the present appeal aud the respondent has also filed crossobjection valued at Rs. 5,164.00 Paise only.

The learned Standing Counsel appearing for the appellant very fairly confined his submissions to only two points in the case, namely, (1) the market price of the land acquired, and (2) the question as to whether the respondent was entitled to 15 per cent, of the compulsory acquisition charges by way of solatium. As regard the severance charges, the finding of the Land Acquisition Officer was already in favour of the claimant and the same having not been challenged earlier, the learned Standing Counsel has justly refrained from canvassing that point before me.

Coming to the question of the market value of the land, again it could be borne in mind that the scope of an appeal under section 381 of the U.P. Nagar Mahapalika Adhiniyam is very limited, unlike an uninhibited right of appeal under section 96 of the Code of Civil Procedure. I may advert in this connection to subsection (2) of section 381 of the U.P. Nagar Mahapalika Adhiniyam which reads:

"281. (2) An appeal under subsection (1) shall lie only on one or more of the following grounds, namely

(a) the decision being contrary to law or to some usage having the force of law;

''b) the decision having failed to determine some material Issue of law or usage having the force of law;

(c) a substantial error or defect which may have produced an error or defect in the decision of the case upon merits either on a point of fact or of law."

Even clause (c) of the above provision, which maybe said to be of the widest amplitude, among the various clauses under subsection (2) and permits interference even on a point of fact, does not envisage that the appellate court must, as a matter of course, set aside an erroneous finding recorded by the Tribunal. The appellate jurisdiction of the High Court can be exercised only for correcting a defect which is of a substantial nature and which has produced an error or defect in the decision of the case on merits.

Thus the magnitude of the error and its bearing on the decision upon merits are both necessary for successfully invoking the appellate jurisdiction of the High Court under section 381 of the Adhiniyam. The present appeal must, therefore, be disposed of keeping that reservation clearly in mind.

The market value of the land under acquisition has to be determined in accordance with the principles elaborated in section 23 of the Land Acquisition Act. As I have already pointed out, the decision appeal against was given by a Tribunal constituted under section 371 of the Nagar Mahapalika Adhiniyam.

Section 376 of the Nagar Mahapalika Adhiniyam provides for the acquisition of land for the Mahapalika under the Land Acquisition Act, 1894. Clause (a) thereof says: "the said Act shall be subject to the modifications specified in the Schedule to this Act." Clause (1) of paragraph 10 of Schedule 11 says that in the first clause of section 23 of the Land Acquisition Act after the words "publication of the notification under Sec. 4, subsection (1)'' and words "publication of the declaration under Sec. 6" shall be deemed to be added, "or in the case of acquisition of land under any improvement scheme other than a deferred street scheme under Chapter XIV of the Nagar Mahapaiika Adhiniyam, 1959, of the first publication of the notification under Sec. 357 of the Act." It is obvious that the present scheme was an improvement scheme and hence subclause (b) of clause (1) of paragraph 10 of the Schedule is attracted and, therefore, the market value of the land has to be determined with reference to the date of the publication of the notification under section 4 (1) Clause (2) of paragraph 10 of the Schedule further provides that "for the purposes of clause first of subsection (1)of section 23 of the Land Acquisition Act the market value of the land shall be the marketvalue according to the use to which the land was put at the date with reference to which the marketvalue is to be determined under that clause''. To the net result is that the market value of the land in the instant case has to be determined with reference to the use to which the land was put on the date of the notification under section 4 (1). It may also be mentioned that section 4 of the Land Acquisition Act is equivalent to section 36 of the U. P. Town Improvement Act. The notification under section 36 of the Town Improvement Act was made in the present case on 17121949 which is the crucial date for the purpose of assessing the market value of the property. It is true that the parties were not able to file any exemplars before the Tribunal which was, therefore, handicapped to some extent and It followed the correct course of treating as an exemplar a judgment rendered in another reference, being Reference No. 8 of 1955, by another Tribunal constituted under the same Adhiniyam. That judgment was delivered on 2891967. That was with respect to plot Nos. 1939 and 1940 (partly) whereas the present appeal relates to plot no. 1949. It is clear from the record, as pointed out by the Tribunal in the instant case, that the land in dispute is adjacent to the land which has been considered in Reference No. 8 of the 1955. It is also admitted that the other reference arose out of the acquisition in pursuance of the same scheme and under the same notification. In that case the Tribunal came to the conclusion that the market value of the land on the front side, which stood by the side of the road, was Rs. 600/ per Biswa whereas the market price of the land which stood at the back side was Rs. 400/ per Biswa. It is not denied by the witness on behalf of the claimant that the Kithi of the claimant was not by the side of the road which is north of Durga Kund. The fact, however, remains that the property enjoys an excellent situation. It is just adjacent to a palatial building owned by the claimant and the building and the land are enclosed by Paoca boundary walls. It was situated near the Durga Kund in the city of Varanasi and the building of the Panchaiti Akhara, the houses of the Shah family and the bungalows of Kolharia and Barhar estates were situated close to it. As stated by Damodar Singh (P.W.I) the palace of ivl aharaj Kumar of Vizianagram and the police station Bhelupur were about four furlongs from the land and Mohalla Bhadaini, Durgapur and Sonarpura were near the land in question. It has also to be seen as to what use the land was being actually put at the time of the notification under section 4. The land had been maintained as a flourishing garden and there were no less than 95 trees including, mango and fruit bearing trees. It could not be treated as agricultural land. It was never assessed for land revenue and so the multiple applicable to agricultural land for the purposes of determining compensation is wholly irrelevant for the purposes of the present, case. The judgment in Reference No. 8 of 1975 refers to a number of exemplars which were filed in the case before the Tribunal.

As would be apparent, the circumstances referred to in that would apply with full force to the present case. Exhibit 2 was a copy of saledeed dated 1161946 by which Niranjan Das and Laohhmandas Trustee of Panohayati Akhara have sold garden in 16 Biswas of land situate in Mohalla Durga Kund for Rs. 21.000/, that is, at the rate of about Rs. 1300/ per Biswa. Exhibit 4 was a copy of the saledeed dated 871949 executed by Baijnath and Kedar transferring one Biswa of land for Rs. 750/. Exhibit 1 was a copy of the saledeed dated 10101949 executed by Baijnath and Kedar transferring one Biswa ot land for Rs. 800/. These two saledeeds pertain to the land in Mohalla Durga Kund and they fairly give an idea of ths prevailing market rate of the land in Mohalla Durga Kund in the ysar 1949. It is also pertinent to refer to a resolution passed by the Municipal Board on 421949 by which it was agreed to purchase 4 Biswas of land near Durga Kund fur the purposes of schools at the rate of Rs. 600/ per Biswa which rate has been corroborated by the Commissioner appointed in Reference Case No. 8 of 1975 and consequently the same rate was accepted as the prevailing rats for the front of the property acquired in that case which stood by the road side. In the same reference the rate accepted with regard to the land situate on the back side and not by the side of the road was Rs. 400/ per Biswa. The land in the present case also being situate in the same locality and enjoying similar conditions and potentiality but not standing on the road side, should be amenable to the same market rate, namely, Rs. 400/ per Biswa. Therefore, in my opinion the prevailing market value of the land as determined by the Tribunal was and cannot be successfully asailed.

As regards the price of trees, constructions and severance charges determined by the Tribunal the learned Standing counsel has not been able to place before me any such date as may induce me to take a different view. An amount of Rs. 2,000/ as severance charges was allowed by the Land Acquisition Officer and the same having not been challenged by the State, it is not open to appellant to challenge it now when it has been affirmed by the tribunal.

The last attack was on the amount of Rs. 1,674.30 allowed by the Tribunal as 15 per cent, of the compulsory acquisition charges. It was submitted by the learned Standing Couusel that the solatium provided by section 23 (2) of the Land Acquisition Act had to be awarded only on the market value of the land and not on the total amount of compensation awarded. He contended that the Tribunal had erred in arriving at the amount of solatium by including all the items of compensation such as trees, constructions, severance charges etc. which was contrary to law. There is no doubt that for the purpose of determining the solatium only the market value of the land has to be taken into account and not any other item covered by the clauses ''secondly'' to ''sixthly'' to section 23 (1) of the Land Acquisition Act. In other words, the additional sum of 15 per cent, is admissible only on the items covered by clause'' first. This contention is well founded but in this connection the definition of the term ''land'' must be taken into consideration. The term ''land'' is defined in section 3 (a) of the Land Acquisition Act which says;

"(a) the exprfissiou "land" includes benefits to arise out of land, and things attached to the earth or permanently fastensd to anything attached to the earth.''''

The market value of the land will thus include the value of the land, trees and constructions standing on the land but not any other item which the total amount of compensation in the present case. This proposition of law is well supported by authorities. See Krishna Bai v. Tlie Secretary of State for India in Council (I.L.R. (42) Alld. 555). Thus, when the land is acquired with trees the extra 15 per cent, is on the total amount of the value of the land and the trees. See The Government of Bombay v. Esufali Sale Bliai (I.L.R. (34) Bom. 618) and SubCollector of Godevari v. Seraqam Subliaroyadu and others (I.L.R. (30) Mad. 151) and Chaturbhuj Pande and others v. Collector, Raiqarli (A.I.R. 1969 S.C. 255).

In this view the claimant would be entitled to the following compensation:

Land Trees Constructions

Rs. 6,260.00 Rs. 2,263.00 Rs. 639.00

Rs. 9,162.00

Solatium at the rate of 15% Rs. 1,374.30

Severance charges

Rs. 10,536.30 Rs. 2,000.00

Rs. 12,536.30

The claimant is also entitled to interest at the rate of 6 per cent, per annum on the amount in excess of that which has already been deposited.

Before parting with this appeal I may refer to another agreement which has also been urged on behalf of the appellant, namely, that sinoe subsection (2) of section 23 of the Land Acquisition Act has been amended by U. P. Amending Act 22 of 1954 with effect from 19111954, the claim of compensation with respect to solatium of 15 per cent, must be disallowed, it was pointed out that on the date of the award in the present case i.e. 881955 the above clause did not exist on the statute book and hence nothing could be awarded as solatium. Learned Counsel for the respondent countered this argument by submitting that the same clause had later been restored by the U.P. Amending Act 28 of 1972 with effect from 371972 and consequently the Tribunal was justified in awarding an extra amount of 15 per cent, on the market value of the property. He contended that since the market value of the land was now being determined by this Court after the coming into force of U.P. Act 28 of 1972, subsection (2) of section 23 was attracted and its provisions must be applied to the facts of the present case. Reliance was placed on two division Bench decisions of this Court. In First Appeal No. 335 of 1968. The Collector, Agra v. Banwari decided by K.B. Asthana, C.J. and Satish Chandra, J. as he then was, on 451976, the language used in subsection (2) of section 23 of the Land Acquisition Act as added by U.P. Act of 1972 was interpreted and it was held in that case that:

"On its language the directive of this provision is operative inrespect of oases where market value is determined after coming into force of this Act. namely, 31st July, 1972. There being no restriction referable to the issuance of the notification under section 4, it cannot legitimately be submitted that the directive contained in the newly added sub section (2) of section 3 is applicable only to such oases where the notification under section 4 of the Land Acquisition Act was issued on or after 31st July, 1972."

The same view was expressed by another divistion Bench of this Court in hirst Appeal No. 176 of 1972 connected with First Appeal No. 177 of 1972 decided by G. S. P. Singh, J. and R. N. Sahai, J. on 16.4.1976. The name dictum was repeated by yet another division bench of this Court in First Appeal No. 433 of 1968 connected with First Appeal No. 412 of 1968 decided by R. B. Misra, J. and J. M. L. Sinha, J. on 24.8.1976. In view of the aforesaid decisions it is not necessary for me to dilate on this point. It would be sufficient to any that I am in respectfull agreement with the abve decisions. The law sseems to be that if at the time of the determinatin of ttie market value the provisions for granting solatium exists, the claimant is entitled to its benefit, not with standing the fact that the said provision did not exist at the time of the acqusition, I would only like to add one additionnl ground for rejecting the appellant''s contention in the instant case, it should be noted that section 3 of U, P. Act 22 of 1954 contains a saving clause and provides:

"3. Savings.Notwithstanding anything contained in Section 2, Section 28 of the Principal Act, shall, in respect of any acquisition of land made in pursuance of notification under Section 4 of the said Act issued prior to the commencement of this Act, have effect as if subsection (2) thereof had not been omitted."

In the case before me the notification under section 36 of the Town Improvement Act corresponding to section 4 of the Land Acquisition Act was issued on 17.12.1949 and hence the U. P. Act 22 of 1954 deleting subsection 23 would not be applicable to this case. Therefore, I am satisfied that the claimant was entitled to a solatium of 15 percent on the market value of the land.

The respondent also filed crossobjections for the enhancement of amount of compensation awarded by the court below but in my opinion the crossobjections are incompetent. The crossobjections are analogous to appeal and in substance invoke the appellate jurisdiction of the High Court. The provision for filing an appeal of crossobjections which is relevant in the present case is contained in section 381 of the Nagar Mahapalika Adhiniyam. Subsection (1) of section 381 provides that an appeal shall lie to the High Court from a decision of the Tribunal, if,

"(a),;the Chairman of the Tribunal grants a certificate that the case is a fit one for appeal, or (b) the High Court grants special leave to appeal, provided that the High Court shall not grant such special leave unless the Chairman of Tribunal has refused to grant a certificate under Cl. (a)."

Thus, there is a clear mandatory provision which bars an appeal unless the conditions imposed by subsection (1) have been complied with. It is incumbent on the appellant to have the bar removed by obtaining a certificate of fitness or special leave to appeal. There can be no valid reason for exempting a crossobjector from negotiating the same hurdle. Both the appeal and the crossobjections stand more or less on the same footing and the preliminary impediment created by law applies with equal force to both. The respondent contended that under subsection (4) of section 381 of the Adhiniyam it is provided that the Code of Civil Procedure shall, so far as may be, apply to appeals under the Adhiniyam in the same manner as it applies to appeals from original decree. But the opening words of subsection (4) of section 381 of the Adhiniyam are most significant. They postulate that ''Subject to the provisions of subsection (1) the provisions of the Code of Civil Procedure, 1908, with respect to appeals from original decrees shall apply to appeal under this Act. It has clearly the effect of reinforcing the bar contained in subsection (1) for the filing of appeal. I am fortified in the view that I am taking by a judgment of Asthana, J, as he then, was, in The Collector, Varanasi v. Alopi Natt and others (1972 A. W. R. 759). The respondent''s counsel has not been able to show anything on the records of this appeal even to suggest that the respondent had either applied for the grant of certificate to the Chairman of the Tribunal or for special leave to appeal. Therefore, the crossobjections are not maintainable and are dismissed.

In the result this appeal is partly allowed. The extra amount of 15 per cent granted by the Tribunal as solatium is reduced from Rs. 2,000/ to Rs. 1374.20. The claimant will he entitled to interest at the rate of 6 per cent per annum on the amount in excess of that which has already been deposited with effect from the date of possession. In other respects this appeal fails and is dismissed. The crossobjections are also dismissed. But no order is made as to costs.