U.P.Avas Evam Vikas Parishad vs Kanak and others

P.C. Verma, J.—On 26.5.2010, this Court passed the following order:

"Having heard the counsel for the parties, the aforesaid appeals of the UP Avas Evam Vikas Parishad Parishad and the cross appeals filed by the claimants are dismissed. The impugned awards of Rs. 27/ per sq. yard are affirmed. The claimants are also held entitled to the statutory benefits of the 1984 Amendment Act alongwith the statutory interest under Ss. 28 and 34 of the LA Act on the amount of compensation from the date of possession to the date of its actual payment and the rule of appropriation, as laid down in Gurpreet Singh v. UOI, (2006) 8 SCC 457, will apply. Since the proceedings for acquisition in the present matters commenced four decades back, the Parishad shall pay the entire sum, as above, if not already paid, within a period of 9 months from today with interest up to the date of payment. The parties would bear their own costs. The detailed reasoned judgement shall follow."

Accordingly, we now proceed to give our detailed reasoned judgement as follows:

This batch of first appeals arises from the awards made by the UP Avas Evam Vikas Parishad Tribunal, Agra (in short, "the Tribunal") relating to the fixation of compensation regarding the various parcels of the lands acquired by the UP Avas Evam Vikas Parishad, Lucknow (in short, "the Parishad") for its "Sikandra Grahsthan Evam Sarak Yojna", covered by a common preliminary notification dated 4.4.1970. Out of 41 appeals of this batch, 25 appeals have been filed by the Parishad for the reduction of the compensation, while 16 cross appeals have been filed by the claimants for enhancement of compensation.

The above appeals have been heard together and are being disposed of by a common judgement, as the learned counsel for the parties have agreed for the same.

The Parishad framed the aforesaid scheme under the provisions of the UP Avas Evam Vikas Parishad Adhiniyam, 1965 (UP Act No. 1 of 1966) (hereinafter referred to as the "Parishad Adhiniyam"), which included land of 5 villages, namely, village Sikandra Bahishtabad, Kakretha Mustaqil, Gailana Mustaqil, Bodla & Khataina, which were contiguous and formed a compact area. Pursuant to the scheme, the notice u/s 28 of the Parishad Adhiniyam was published on 4.4.1970 which was analogous to S. 4(1) of the Land Acquisition Act, 1894 (in short, "the LA Act"). The said notice was followed by the notification under S. 32 of the Parishad Adhiniyam on 20.6.1980. The possession of the scheme land, including the lands involved in the present appeals, was taken by the Special Land Acquisition Officer (in brief, "the Spl. LAO") during the period from year 1981 to 1984 without making award. The Spl. LAO made his awards villagewise by fixing different market values for each village. While the market values of village Khataina and Chak Khataina were fixed @ Rs. 19.98 (i.e. Rs. 2.22 sq.ft.) and 17.82 per sq. yard (i.e. Rs. 1.98 sq.ft.) respectively, it was fixed for the acquired land of village Sikandra Bahistabad @ Rs. 9.52 per sq. yard and of village Bodla @ Rs. 8.25 per sq. yard. The lands of village Gailana Mustaqil and Kakretha Mustaqil were fixed @ Rs. 7.50 and Rs. 4.45 per sq. yard respectively. The Spl. LAO treated the entire scheme land as a potential building site and, therefore, did not consider the quality of the soil classification of the lands, fertility or their irrigation facilities. The assessment of the market value was on square foot/square yard basis. At the time of making of the awards, the owners/claimants were neither present nor represented and no notices were also issued by the Spl. LAO to them u/s 12 (2) of the LA Act as is evident from the RTI information dt. 21.4.2010, taken on record. Since the landowners/claimants did not accept the awards and sought for references under S. 18 of the LA Act, the Spl. LAO made them to the Tribunal at Agra, constituted under S. 64 of the Parishad Adhiniyam. The Tribunal, after examination, found the land in question to be potential building site and relied upon the awards of village Chak Khataina & Khataina made by the Spl. LAO himself by respect of a part of the scheme land itself. The Tribunal answered all references, made to it by making its several separate awards and uniformly assessed the market value @ Rs. 27/ per sq. yard (i.e. Rs. 3/ per sq.ft.) in respect of the land parcels of the various villages by holding their uniform value. In some of the awards, the Tribunal awarded solatium u/s 23(2) of the LA Act only @ 15% of the market value and interest was also not awarded on the amount of solatium and on the additional amount found payable u/s 23 (1A) of the LA Act. The Parishad, feeling aggrieved by the Tribunal''s awards has preferred the present 25 appeals to this Court, while the claimants have also preferred their 16 cross appeals to seek further enhancement of the market value, besides claiming for the benefits of the 1984 Amendment Act and the statutory interest as per law.

Heard the learned counsel for the parties on several occasions and also carefully perused the records, including the impugned awards and the evidence led by the parties in the Tribunal below.

In view of the submissions of the learned counsel for the parties, the points for determination in these appeals are as follows:

What was the just and reasonable market value of the acquired land in question as obtaining on the relevant date of the initial notification dt. 4.4.1970?

Whether the assignees of the compensation rights both at the "preaward stage" (in FA No. 1047/95, 1046/95, 228/96, 556/97, 557/97, 558/97, 723/99 & 332/2007) and "postaward stage" (in FA No. 273/94, 274/94, 368/97, 370/97, 263/98 & 555/99) were entitled to receive compensation in the reference proceedings?

Whether the impugned awards, giving rise to the FA Nos. 1046/95, 1037/95, 228/96, 556/97, 557/97, 558/97 and 332/2007, were made by the Tribunal without notice to the Parishad?

Whether the claimants were entitled to the statutory benefits of the LA (Amendment) Act, 1984?

Relief, if any?

Point No. 1

On behalf of the Parishad, it was contended that the market value @ Rs. 27/ per sq. yd., fixed by the impugned awards, was unreasonable and against the facts on record. Contrarily, the learned counsel for the claimants submitted that the award of the market value by the Tribunal was on much lower side and it ought to be not less than Rs. 100/ per sq. yard. The contentious issue between the parties is, thus, about the fair and reasonable market value of the acquired land on the relevant date i.e. 4.4.1970.

It is further submitted that while fixing the market value in the impugned awards, the Tribunal relied upon the three awards dt. 15.7.1983, 31.3.1986 & 31.3.1986 made by the Spl. LAO u/s 11 of the LA Act in respect of the lands acquired under the selfsame notification and scheme. A perusal of the record would show that the award dt. 15.7.1983 was made by the Spl. LAO in respect of Vill. Khataina for an area of 21 Bigha 19 Biswa which comprised of Khasra Nos. 1 to 4, 8, 9 to 13, 18, 23, 29, 21, 30 to 34, 36M, 37, 39, 40, 46M, 35, 45M & 18M who assessed its market value @ Rs. 2.22. per sq. ft. (i.e. Rs. 19.98 per sq. yard). Similarly, the Spl. LAO made another award dt. 31.3.1986 in respect of the land of Vill. Khataina bearing of Khasra Nos. 14, 16, 17, 20, 23 to 25, 27, 28, 41M having an aggregate area of 3 Bigha and 18 Biswas and its rate was assessed @ Rs. 2.22 per sq. ft. (i.e. Rs. 19.98 per sq. yard). In another award dt. 31.3.1986, the Spl. LAO assessed the market value of the land situated in Chak Dakhili of Vill. Khataina @ Rs. 1.98 per sq. ft. (i.e. Rs. 17.82 per sq. yard) in respect of Khasra Nos. 593 to 601 with total area 9 Bighas 16 Biswas. The Tribunal also found that the lands included in these three awards dt. 15.7.1983 and 31.3.1986 were inferior to the lands in question and, therefore, the Tribunal after due consideration and keeping in view of the totality of the circumstances awarded a higher rate by fixing it @ Rs. 3/ per sq. ft. i.e. Rs. 27/ per sq. yard. None of the sale instances filed by the parties was found relevant and the exemplar awards made by the Spl. LAO u/s 11 of the LA Act were preferred to as the most reliable material for the fixation of the market value.

The learned counsel for the Parishad strenuously submitted that the aforesaid 3 awards dt. 15.7.1983 & 31.3.1986 made by the Spl. LAO could not be the basis for the fixation of the market value. Such contention has no force in view of the clear and binding ratio of the State of Madras v. A.M. Nanjan & ors., AIR 1976 SC 651, wherein the Hon''ble Supreme Court held the awards given by the Collector to be relevant material and in the ''nature of admission'' on behalf of the State and it was observed:

".....these awards given by the Collector are at least relevant material and may be in the nature of admission with regard to the value of the land on behalf of the State and if the land involved in the awards is comparable land in the reasonable proximity of the acquired land, the rates found in the said documents would be a reliable material to afford a basis to work upon for determination of the compensation on a later date. The awards, therefore, cannot be dismissed as inadmissible for the purpose of determination of the compensation." (para 7)

In Printers House Pvt. Ltd. v. Mst. Saiyadan & ors., (1994) 2 SCC 133 also, the Apex Court held that where there was evidence of sales or awards of land, it would be preferable to rely them in preference to other recognised methods of valuation of land. In Karan Singh & ors. v. UOI, AIR 1997 SC 3889, the awards given by the Spl. LAO were found to be ''good piece of evidence'' for determination of the market value by observing that "there is no quarrel with the proposition that judgments of Courts in land acquisition cases or awards given by the Land Acquisition officers can be relied upon as a good piece of evidence for determining the market value of the land acquired under certain circumstances." In Major Pakhar Singh Atwal & ors. v State of Punjab & ors., AIR 1995 SC 2185, the Supreme Court also held that an award by the Collector, being an offer, bound the Improvement Trust (the beneficiary of the acquisition) and it was observed that "it is now settled law that the award is an offer and whatever amount was determined by the Collector is an offer and binds the Improvement Trust.......The Improvement Trust, therefore, cannot go behind the award made by the Collector." In Pratima Ghosh v. State of West Bengal, AIR 1973 Calcutta 284, the Calcutta High Court also opined that "an award of the Collector is an offer of compensation made on behalf of the Government. The Government is bound by the offer but not the claimant, for he can seek a reference to the Court from the award under S. 18" and that "a claimant in a different proceeding can very well rely on the unaccepted award as evidence of the market value and if the land be similar to the land in respect of which the award relief upon was made the Government will be precluded from saying that the offer contained in the award does not represent the market value of the acquired land." Similar view was taken by the Kerala High Court in State of Kerala v. Valliyamma Ponnamma & ors., AIR 1985 Kerala and UP Avas Evam Vikas Parishad v. Smt. Mithlesh & anr., 2008 (1) ADJ 491.

In view of the above, the contention raised on behalf of the Parishad about inadmissibility of the unaccepted awards dt. 15.7.1983 and 31.3.1986 made by the Spl. LAO has no legal force. The Tribunal rightly treated the said awards as the most reliable material to afford a price basis to work upon the determination of compensation. Admittedly, these awards made by the Spl LAO were of the selfsame scheme, common notification and purpose and there could have been no better evidence for the claimants herein then these awards, which were most dependable, unhazardous and stereobate material qua the State/Parishad. These awards were in fact material ad rem for the market value of the comparable properties for the claimants and the claimants had an indefeasible right to rely thereupon. S. 25 of the LA Act also reinforces the binding nature of the Collector''s award which in clear terms provides for the finality of the Collector''s award qua the State and its beneficiary. Similarly, S. 28A of the LA Act also embodies the principle of equality of compensation. It is settled law that an award of the Spl. LAO can be appropriately described as a tender or offer made on behalf of the Government to the owner, which furnishes an intrinsic evidence and the State or the beneficiary cannot question the correctness of the award. Further, the State/Parishad has neither pleaded nor led any evidence to show that it ever challenged the said awards dt. 17.5.1983 or 31.3.1986 in any proceedings by way of writ, reference or otherwise. Hence, their finality, binding nature and relevance qua the State/Parishad could not be disputed though of course the claimants needed to establish their comparative location of the lands under the said awards vis�vis the land under valuation.

It was further contended by the learned counsel on behalf of the Parishad was that the exemplar awards dt. 15.7.1983 & 31.3.1986 related to village Khataina, while the lands in question were of village Sikandra Bahishtabad, Gailana Mustaqil, Bodla & Kakretha Mustaqil and, therefore, the said exemplar awards were not relevant but in view of the evidence on record, such contention is also unfounded.

It is no more res integra that for the valuation of a land, the artificial barriers/demarcations of a revenue village boundaries should not be given importance as market value is governed by the market pressure which is usually ''''uniform'' for the adjoining or nearby areas notwithstanding the different revenue demarcations/nomenclatures of villages/localities in view of the decisions of this Court in the Collector, Varanasi v. Ekram Shah, 1992 AWC 1364 and Ram Adhar v. State of U.P. & ors., 2008 (8) ADJ 466. In Ekram Shah (supra), a sale deed dt. 10.3.1986 of village Salarpur was relied upon, while the acquired land in question was situated on the western end of village Dinapur. It was contended that the sale instance dt. 10.3.1986 of Vill. Salarpur should not be relied upon (vide para 30). Rejecting the contention, the division Bench of this Court held that:

"The argument that merely because the land sold on 10.3.1986 was situated in another village in our opinion cannot, by itself, be a justifiable ground for discarding the sale deed without something more. We cannot rule out the possibility that two plots which may be in two adjacent villages yet may be adjacent or so proximate to each other that they may still have the same or atleast substantially similar potentialities. In the present case the evidence clearly establishes that land sold by sale deed dated 10.3.1986 was adjacent to the acquired land and normally one would except them to possess same market value." (para 37)

It was further held that :

"...... Artificial barriers like village boundaries cannot be given undue importance because the land in any particular area or in close proximity land is generally governed by market pressure which is usually uniform for adjoining land in the area irrespective of revenue demarcations." (para 37)

In Ram Adhar (supra), this Court again addressed the issue, namely, whether the sale instance of one revenue village would be relevant for the market value of the land of other revenue village, if they are similarly situated and possess similar location and building potentiality and the view taken was:

"Thus, artificial barriers like village boundaries cannot be given undue importance because the land in any particular area or in close proximity normally possess similar potentially and market value. The market value of the land in such cases should, therefore, normally be uniform for adjoining villages of the area irrespective of the village demarcations."

The consistent judicial opinion of this Court is, thus, that the artificial barriers of the village boundaries are not per se significant for the valuation. Instead, what is required to be considered is the comparative and inter se location and potentiality of the two lands and not their nomenclatures. The decisive criterion for the selection of an exemplar sale deed/exemplar award is its comparability visavis the land in question and the name of a revenue village or a municipal locality. It cannot be gainsaid that a prudent and informed buyer of a land bargains for it by keeping his vigilant eyes over the relative features of a land instead of being swayed away by the nomenclature of a street, a lane or a revenue village. Therefore, merely because the exemplar awards were of village Chak Dakhili and Khataina, they cannot be discarded.

Accordingly, we are of the considered view that the awards of village Chak Dakhili and Khataina made by the Spl. LAO, which were in respect of the comparable lands situated within the scheme area, were most relevant pieces of evidence despite falling in the different but contiguous and adjoining revenue villages. Now the significant question is as to the market value of the lands in question as it obtained on the crucial date i.e. 4.4.1970.

On behalf of the claimants, it was pointed out that the scheme land was a compact one and was at the same stage of the development, therefore, the Tribunal rightly awarded an uniform rate for the entire scheme land and decision of the Supreme Court in Union of India v. Harinder Pal Singh, (2005) 12 SCC 564 was relied upon by them in this regard. In Harinder Pal Singh, alike these appeals, the lands of five different villages were involved and the Hon''ble Supreme Court took a pragmatic approach to fix uniform rate for the entire land of the five villages, as they could be consolidated into one single unit with little to choose between one stretch of land or another. It was held (vide paragraph no. 15 of the Report):

".....in our view, took a pragmatic approach in fixing the market value of the lands forming the subjectmatter of the acquisition proceedings at a uniform rate. From the sketch plan of the area in question, it appears to us that while the lands in question are situated in five different villages, they can be consolidated into one single unit with little to choose between one stretch of land or another. The entire area is in a stage of development and the different villages are capable of being developed in the same manner as the lands comprised in Kala Ghanu Pur where the market value of the acquired lands was fixed at a uniform rate of Rs. 40,000 per acre...." (para 15)

The ratio of Harinder Pal Singh (supra) would apply with full force to the factsituation of the present appeals also, as from the examination of the evidence on record, we are of the considered opinion that the entire scheme land was at the "same stage of development" possessing more or less similar building potential and it was fair and reasonable to have assessed an uniform market rate for the entire scheme land, which formed a compact area. Only for the fact that the scheme land fell in five different revenue villages, it would not be just, reasonable or proper to fix their market values differently. Rather, it would be discriminatory, arbitrary, iniquitous and irrational to fix less value merely because a particular land fell in a particular village. It may also be noticed that the Spl. LAO did not make the belts/blocks of the scheme land based on distance from any radial road or locality but grievously erred to fix the villagewise rates based only on the nomenclatures of the various villages ignoring the pertinent fact that the lands of the various villages enjoyed similar location and plus & minus factors and were at the ''''same stage of development''. Like Harinder Pal Singh (supra), the Tribunal below adopted a pragmatic and justiceoriented approach by treating the scheme land at same footing and rightly assessed its market value uniformly. Such realistic and practical factual approach of the Tribunal could not be faulted by the Parishad and do not call for any interference by this Court.

It may also be mentioned that in a recent decision of the Hon''ble Supreme Court in Haridwar Development Authority v. Raghubir Singh, 2010 (2) SCR 201, their Lordships upheld the assessment of the market value at an uniform rate. Its factual matrix was: The Collector divided the acquired lands into 3 belts and awarded beltwise rates of Rs. 26.25, 17.50 & 13.12 per sq. ft. However, the Reference Court limited the division of the acquired lands into only two categories and awarded Rs. 26.25 per sq. ft. and Rs. 17.50 per sq. ft. for these 2 belts. On appeal, the High Court awarded a uniform rate of Rs. 26.25 per sq. ft. for all the acquired lands and rejected the ''''belting system'' adopted by the Collector and the categorization adopted by the Reference Court. The Haridwar Development Authority thereupon challenged it before the Supreme Court on the ground that "the High Court ought to have retained the three belt categorisation adopted by the Collector instead of awarding a uniform rate for all the lands." While rejecting such contention of the Development Authority, the Apex Court observed that "the question whether the acquired lands have to be valued uniformly at the same rate, or whether different areas in the acquired lands have to be valued at different rates, depends upon the extent of the land acquired, the location, proximity to an access road/Main Road/Highway or to a City/Town/Village, and other relevant circumstances." It was further said that "the High Court was of the view that the size and situation did not warrant any belting and all lands deserved the same rate of compensation. The Authority has not placed any material to show that any area was less advantageously situated. Therefore the view of the High Court that compensation should be awarded at an uniform rate does not call for interference." In these appeals in hand also, the Parishad has not placed any tangible material to establish that any area of the scheme, in question, was less advantageously situated or the size and situation of the land in question warranted different treatment. Rather, the evidence on record would clearly establish that the scheme land needed fixation of a uniform rate without any reference to the artificial boundaries of the revenue villages. An examination of the evidence would show that the scheme land in its West abutted the SikandraBodla Road, while in South, it abutted Bharatpur Road, in East, it was contiguous to abadies of Nagla Ajeeta etc., while in North it was very close to AgraDelhi Road (NH2) and the Sikandra monument along with the locality of Sikandra. After close scanning of the evidence on record and the acquisition map, we are more than satisfied that the scheme land, being surrounded by the roads and abadies, possessed similar building potentiality and the Tribunal below rightly fixed its market value uniformly @ Rs. 27/ per sq. Yard without being influenced by the names of the revenue villages.

It may also be noticed that in the reference proceedings of FA No. 273/1994, the Parishad filed certified copies of four sale instances as ExA3 to 6, which were not found relevant by the Tribunal. ExA3 was the certified copy of the sale deed dt. 11.3.1970, executed by Lal Singh in favour of Miseriaram in respect of land measuring 154 sq. yds. out of Khasra No. 753 of village Bodla for a consideration of Rs. 385/ and the rate roughly came out to be Rs. 2.50 per sq. yd. The Tribunal found that its the vendor was not in possession and instead the vendee was in possession since the year 1947; there was the recital in the saledeed to the effect that, if the land is acquired in any scheme, the seller would not be liable for the same and it was executed just 22 days prior to the date of the initial notification; the Spl. LAO also did not himself choose to act upon this instance; and there was lack of proof of its comparative location. ExA4 was the certified copy of the sale deed executed by Mangi Lal in favour of Karan Singh in respect of 130.5 sq. yds. of land out of Khasra No. 343 situated in village Bodla for a sale consideration of Rs. 662.50 @ roughly Rs. 5/ per sq. yd. In this deed also, the purchaser (Karan Singh) himself was the tenant of the demised property @ Rs. 3/ per annum, showing that the sold property had a negligible income to the seller, and therefore, was of little worth to the seller and this sale deed was also not acted upon by the Spl. LAO and no comparative location was at all proved by the Parishad. DW1, Prakash Chand Jain, could neither tell the boundaries or the location of the demised land. ExA5 was the sale deed dated 21.1.1969, executed by Sitaram and Madal Lal in favour of Kanhaiya Lal and others regarding plots no. 726, 727/2 and 728, all measuring 5 Bigha and 5 Biswa situated in village Bodla for a consideration of Rs. 1000/ @ 7 paise per sq.yd. The Spl. LAO, himself, discarded this sale deed in his impugned award dated 15.5.1986 (Ex. A2), which found mention at Serial No. 37 of its Schedule II. The Spl. LAO, on consideration of this sale deeds, alongwith some other sale deeds, observed that "the said sale deeds are in respect of the land lying within the scheme, but the sale deeds are of much lesser rates than the prevalent market value in those areas. It appears that all of these sale deeds were executed for a lesser consideration none of these sale deeds can be justified for being placed in the category of an ideal sale deed". Exhibit A6 was the sale deed dated 10.3.1969, executed by Lal Singh in favour of Radhey Shyam and another for an area of 132 sq. yds. out of Khasra No. 754 in village Bodla, for a consideration of Rs. 400/ i.e. @ Rs. 3.03 paise per sq. yd. The sale instance was also rejected by the Spl. LAO like Ex.A5, and its details could not be proved as to treat it as comparable sale instance with the land in question and DW1, Prakash Chand Jain, also admitted to have no personal knowledge of this sale transaction. All these sale instances were of no avail to the Parishad and the Tribunal rightly did not treat them as the guiding factors for the determination of the market value more particularly because of the exemplar awards made by the Spl. LAO of the selfscheme scheme and notification dt. 4.4.1970.

In the reference proceedings (LA Case No. 5/1987) of the FA No. 723/1999, the Parishad filed before the Tribunal the photostat copies of some sale instances, which were objected to by the claimant as inadmissible and were not marked as exhibits by the Tribunal. Even otherwise, the sale instances had no relevance as would be clear from their brief description made hereinafter. Paper No. C35 was the sale instance dt. 31.10.1967 by Moolchand in favour of Bahorey Ram Gopal in respect of onehalf share of an area measuring 1 bigha 19 biswa (5374.68 sq. yard) of village Sikandra Bahishtabad for a consideration of Rs. 500/ i.e. 18 paise per sq. yard. Paper No. C86 was the photostat copy of the sale instance dt. 6.11.1970 executed by Ram Saran Kapoor in favour of Bahavuddin for a sale consideration of Rs. 8000/ in respect of a total area of 1 bigha 17 biswa (5099.06 sq. yard) and its rate came to Rs. 1.57. Paper No. C87 and C88 were the sale instances dt. 4.12.1981 and 3.12.1981 which were postnotification sales much after the date of the initial notification. Paper No. C89 was the sale instance dt. 2.7.1970 by Panni in favour of Atar Singh and ors. in respect of 3 bigha 4 biswa (8820 sq. yards) situated in village Sikandra Bahishtabad for total consideration of Rs. 3000/ i.e. @ 34 paise per sq. yard. Paper No. C90 was the sale instance dt. 5.8.1967 executed by Hira Lal Jain in favour of Neeraj in respect of land measuring 1 bigha 1 biswa (2894 sq. yard) for Rs. 1500/ i.e. 51 paise per sq. yard. Paper No. C91 was the sale instance dt. 26.10.1966 executed by Ghanshyam in favour of Raj Narain Jain in respect of land measuring 4 bigha 1 biswa (11162.81 sq. yard) for a total sum of Rs. 3800/ i.e. 34 paise per sq. yard. Paper No. C92 was the sale instance dt. 24.4.1968 by Shyama Shanker in favour of Aditya Narayan and anr. In respect of land measuring 7 biswa 17 biswansi (1081.82 sq. yards) for Rs. 500/ i.e. 46 paise per sq. yard. Paper No. C93 was the sale deed dt. 30.7.1968 by Smt. Indira Devi in favour of transport corporation in respect of 14 biswa (1929.37 sq. yards) for total sum of Rs. 6000/ i.e. Rs. 3.10 per sq. yard. Paper No. C94 is the sale instance dt. 30.7.1968 by Vijay Prakash Garg in favour of transport corporation in respect of 18 biswa 15 biswansi (2583.98 sq. yards) for total sum of Rs. 9000/ i.e. Rs. 3.48 per sq. yard. Paper No. C95 is the sale instance dt. 30.7.1968 by Kiran Devi in favour of Transport Corporation in respect of 11 biswa 5 biswansi land (1550.39 sq. yards) for Rs. 5000/ i.e. Rs. 3.22 per sq. yard. Paper No. C96 is the sale deed dt. 24.12.1968 by Daan Sahay and anr. in favour of Brij Kumar Agarwal for an area 4 bigha 10 biswa (12403.12 sq. yards) for a sum of Rs. 9000/ i.e. 72 paise per sq. yard. Paper No. C97 was a sale deed dt. 31.1.1969 by Munshi Lal in favour of Ram Chandra in respect of 7 biswan 1 biswnasi land (971.57 sq. yards) for a sum of Rs. 1000/ i.e. Rs. 1.03 per sq. yard. Paper No. C98 is the sale deed dt. 24.3.1969 in respect of 2 bigha 18 biswa (5328.75 sq. yard) for Rs. 800/ i.e. 37 paise per sq. yard. The sale consideration as reflected in all of these sale instances was abnormally low even if it is compared with the rate awarded by the Spl. LAO, who did not himself also rely upon them. Moreover, there is no evidence on record worth name to establish their comparability vis�vis the land in question. The copies filed by the Parishad of the afore sale instances were inadmissible as they were not certified and they were objected to at the very outset by the claimants. Further, since the reliable evidence in the form of the awards of the Spl. LAO are on record, such sale instances could not be treated as the price indicia at the relevant point of time of the acquired land in question.

No other sale instance was either referred to or relied upon by the learned counsel for the Parishad.

It is also settled law that the awards of the Court or the Collector "afford the clearest evidence for determining the amount of compensation". While an award made by the Court is a judicial determination of the market value, an award of the Collector is an admission qua the State and its beneficiary and is deemed to be the best evidence against them. In Krishna Yachendra Bahadurvaru v Spl. LAO, AIR 1979 SC 869, the Hon''ble Supreme Court found it to be not necessary to refer to the several instances of sale and observed as under:

"Though several instances of sales have been relied upon by one party or the other in the appeals, it is not necessary to refer to them for the purpose of deciding what compensation should be awarded to the appellants in respect of the present acquisitions made under the two notifications dated 30th October, 1951 and 28th January, 1954, because we find that there were two other acquisitions, one earlier and the other later, in respect of land comprised in the same Survey Nos. 6, 9, 10 and 11 and the awards of compensation in respect of these acquisitions have become final and they afford the clearest evidence for determining the compensation awardable to the appellants in respect of the present two acquisitions......." (para 2)

Further, it is also a settled principle of law that there should be equality in payment of compensation subject to the difference in the locations and potentialities. If two lands enjoy similar locations and features, the State must act justly and equitably by giving equal amount of compensation to both of them. This principle further reinforces the weight and importance of the awards of the Collector vis�vis other evidence on record. In nutshell, if the State has itself offered an amount to a landowner, it would not be just for it to refuse to pay the same to others. In Nand Ram & ors. v. the State of Haryana, 1989 LACC 1, the Hon''ble Supreme Court also emphasised that "the State cannot refuse to pay in respect of lands acquired under the same notification compensation awarded to the land owners whose similarlysituated lands had been acquired under the same notification for the same purpose by the notification of the same date." Similarly, in Bhag Singh & ors. v. Union Territory of Chandigarh, (1985) 3 SCC 737, it was held by a 3Judges Bench of the Supreme Court that the State was bound to pay the market value and not to take technical pleas to defeat the legitimate claims. It was ruled:

".....Here was a claim made by the appellants against the State Government for compensation for acquisition of their land and under the law, the State was bound to pay to the appellants compensation on the basis of the market value of the land acquired and if according to the judgments of the learned Single Judge and the Division Bench, the market value of the land acquired was higher than that awarded by the Land Acquisition Collector or the Additional District Judge, there is no reason why the appellants should have been denied the benefit of payment of the market value so determined. To deny this benefit to the appellants would tantamount to permitting the State Government to acquire the land of the appellants on payment of less than the true market value......where land is acquired under the Land Acquisition Act, 1894, it would not be fair and just to deprive the holder of his land without payment of the true market value when the law, in so many terms, declares that he shall be paid such market value. The State Government must do what is fair and just to the citizen....."

Recently, the Hon''ble Apex Court in Hari Ram & Another v. The State of Haryana & ors., (2010) 3 SCC 621 unequivocally held while dealing with land acquisition proceedings, that "the landowners who are similarly situated have right of similar treatment by the State Government. Equality of citizens'' rights is one of the fundamental pillars on which edifice of rule of law rests. All actions of the State have to be fair and for legitimate reasons. The Government has obligation of acting with substantial fairness and consistency." The rule of equality, thus, enjoins equality in the matter of payment of compensation subject to locational difference.

It may also be noted that the fixation of uniform rate of market value may have some element of guesswork but it needs mention that an element of guess work is usually inherent in the cases of the assessment of the market value as an assessment of market value is not an exact science which can be solved as an algebric problem by abstract formulae. In Thakur Kamta Prasad Singh (dead) by Lrs. v. State of Bihar, AIR 1976 SC 2219, it was opined that "there is an element of guesswork inherent in most cases involving determination of the market value of the acquired land, but this in the very nature of things cannot be helped. The essential thing is to keep in view the relevant factors prescribed by the Act". Similar view was taken in Krishna Yachendra Bahadurvaru v. Special LAO, AIR 1979 SC 869. It cannot be disputed that the estimation of the market value is dependent on many imponderables and the Judges are bound to call into aid their experiences of life and make suitable adjustments regarding the positive and negative factors. Although, ideally the endeavour of the Courts should be to determine market value objectively, yet there are always the possibilities of some subjectivity element while determining the market value. That is why it was opined that "in all valuations, judicial or otherwise, there must be room for inference and indications of opinion, which being more or less conjectural are difficult to reduce to exact reasoning, or to explain to others." [(vide Secretary of State v. Charlesworth Piling & Co., 28 IA 121 (PC)]. "The ''assessment'' of compensation to be awarded does involves some rational guess work having regard to all facts and circumstances of the case", was also ruled by the Hon''ble Supreme Court in UPSIDC v. Rishabh Ispat Ltd. & ors., (2005) 4 SCC 789. In nutshell, it can be summed up that the guesswork is permissible but it should be rational, intelligent and judicious, based on the objective considerations without involving the feats of imagination or mechanical assessment and the approach of a prudent and informed person should be the guiding star to make such guesswork without requiring the mathematical accuracy or meticulous exactitude. In all valuations, judicial or otherwise, there is always a room for interference and indication of opinion, which being more or less conjectural are difficult to reduce to exact reasoning or to explain to others, as they may not be possibly done any amount of precision in view of many imponderables and abounding uncertainties. The Court is bound to make an estimate of market value judged by its pragmatism outlook. This very approach has been adopted by the Tribunal by fixation of an uniform rate of Rs. 27/ per sq. yd. for the entire scheme land which was in conformity with the ratio of Harinder Pal Singh (supra) and Haridwar Development Authority (supra).

On behalf of the Parishad, it was also contended that the Tribunal erred in law in treating the land as a potential building site, while it was in agricultural use on 4.4.1970 i.e. the date of initial notification. A perusal of the record and the evidence adduced by the parties would show that the scheme land had building potentiality on the relevant date and the finding of the fact recorded by the Tribunal was based on due consideration of the relevant evidence. The scheme land was acquired for a Housing and Street Scheme and was surrounded by roads and abadies. The mere fact that the scheme land was under cultivation would not denude its potentiality. The existence of various localities at short distances was admitted by the witnesses of the State and the Parishad. The Spl. LAO himself valued the scheme land treating it as a potential building site and valued it on square yard or square foot basis. For this very obvious reason, no importance was attached by him to the soil classification or fertility of the land. In view of the evidence on record, we are fully satisfied that the land in question had building potentiality on the relevant date. Further, it is hardly open for the Parishad to deny such factum of the potentiality since the Spl. LAO himself accepted the potentiality after due consideration of the relevant facts vide Rajendra Kumar v. State of UP, 1993 LAC 577 (All.).

Even otherwise, the issue of potentiality is pushed to background as the awards made by the Spl. LAO on 15.7.1983 and 31.3.1986 of the scheme in question were made the basis to work out the value of the land in question. Since the lands of the exemplar awards and the lands in question were comparable, it did not require any further consideration about the question of potentiality. In Rao Narain Singh (Dead) by LRs. v. UOI, (1993) 3 SCC 60, the Supreme Court ruled that the building potentiality of an acquired land could assume no significance if "the comparable sales method" of valuation of land is resorted to. In the present case, the Tribunal adopted the "comparable method" by placing its reliance upon the awards made by the Spl. LAO in respect of the land of the selfsame scheme; hence, the issue of building potentiality had no significance.

The counsel for the Parishad also submitted that the Tribunal erred by not making any deduction while fixing the rate on the account of the largeness of the area and it ought to have been at least 50%. Such contention has got no force for two reasons, namely, the Tribunal relied upon the exemplar awards of the undeveloped lands of the scheme itself and such awards were of large areas. Notably, the exemplar award dt. 31.3.1986 of Chak Dakhili of village Khataina was for a total area of 9 Bigha 16 Biswas, while the award dt. 15.7.1983 of village Khataina was for an area of 21 Bigha & 19 Biswa. Similarly, another exemplar award dt. 31.3.1986 of village Khataina was for an area of 3 Bigha 18 Biswa. In Thakarsibhai Devjibhai & ors. v. Executive Engineer, Gujarat & anr., AIR 2001 SC 2424 also, the deduction was found to be bad by holding that "the error is, when we scan, we find for the acquisition of each land owner, it could not be said that the acquisition is of a large area. Largeness is merely when each landholder''s land is clubbed together, then the area becomes large. Each landowner''s holdings are of small area. Even otherwise, visioning in the line with the submission for the State, we find Ext. 16 is about 2 hectares of land which cannot be said to be a small piece of land." In Jagdish Chandra & ors. v. NOIDA, 2008 (1) ADJ 253 also, a Division Bench of this Court also opined that "there is no scope of routine deduction."

It is, therefore, a settled principle of valuation of land that no deduction needs to be made in every case or in a ''''routine manner''. The requirement to make a deduction, in fact, hinges upon the nature and salient features of a sale instance or an exemplar award vis�vis the land under valuation. In a given case, if the exemplar sale instance or exemplar award land is of relatively smaller area or of developed area in comparison to the land in question, the need for such deduction would arise to make it comparable. Since in the factsituation of the present matter, the exemplarawards were of the large areas and also of the undeveloped lands alike the land under valuation, there exists no need for any deduction. Importantly, the LA Act or any other law does not per se require any deduction in every case as a matter of course or routine. The salutary rule of deduction has been evolved by the Courts but for its application, the facts of each case are to be kept in mind. For these reasons, the submission for deduction either on account of the largeness of area or for development cost is wholly misconceived and is, accordingly, rejected. t may also be mentioned that for the purposes of the fixation of the market value of the land in question, the learned counsel for the Parishad also referred to the decision in UP Avas Evam Vikas Parishad v. Smt. Mithlesh & anr., 2008 (1) ADJ 491 from a Law Journal, given by a learned Judge of this Court pertaining to the scheme in question, which related to the land of village Kakretha Mustaqil bearing Khasra Nos. 900, 912 & 913, acquired in this scheme, whereby the FA No. 179 of 1993 filed by the Parishad was allowed and the Spl. LAO''s award of Rs. 3.34 per sq. yard was restored.

To this, the learned counsel for the claimants made several submissions firstly, the aforesaid judgment is not on record and should not, therefore, be considered. Secondly, the said judgment was in its peculiar factsituation as the claimant therein failed to establish the comparability of the exemplaraward land qua the land involved therein and, therefore, for want of the proof of the comparability, the learned Judge declined to rely upon the exemplar award. Thirdly, it was judgment in personem and not in rem and the other claimants of this scheme should not be made to suffer for the lapses and laches of the claimant therein, as was also held in view of SubCollector, LAO v. Koppisetti Appala Narasomma, AIR 2000 AP 223. Fourthly, this batch of appeals is now being decided by a Division Bench which should take its decision independently on merits without being unnecessarily influenced by a sole judgment in Smt. Mithlesh (supra), particularly when tangible and sufficient material to establish the comparability of the exemplar award lands visavis the lands involved in these appeals is on record. Fifthly, it would be unjust and unreasonable that the admission of the State regarding the market value (i.e. the awards of the Spl. LAO) is not relied upon to adjudge the market value of other lands acquired under self same scheme and notification.

The submissions made by the counsel for the claimants have much force. It is settled law that an award made the Civil Court in the reference proceedings u/s 18 of the LA Act in respect of another parcel of a land does not bind other claimants in respect of their own land parcels. Further, an award in a case where a claimant failed to lead satisfactory evidence should not make other claimants of the scheme land to suffer therefrom. Each matter needs its decision on its own merits. The judgments in respect of a particular acquired parcel of land may, however, be a relevant piece of evidence but its relevancy stands effaced once it is found to be the culmination of the lapses and short comings of a claimant or it is an erroneous or incorrect decision. The Full Bench of the AP High Court in SubCollector, LAO, Vijaywada v. Koppisetti Appala Narasomma, AIR 2000 AP 223 rightly held that:

"If the Court finds that the judgment rendered in earlier case determining the market value of similar lands covered by same notification is erroneous or incorrect then the Court can assess the market value of such lands afresh and independently as there is no such legal obligation for the Court to fix the same market value."

On perusal of the judgment of Mithlesh (supra), it becomes evident that the learned Judge therein recorded his categorical finding that there was no evidence worth the name to show the similarity of the exemplar award land of village Chak Dakhili with the land involved in the said appeal of village Kakretha and it was succinctly observed:

"Even this case is not helpful to the claimant respondent on account of the fact situation of village Khatena Chak Dakhili and village Kakretha Mustaqil. There is no evidence worth the name to show that the land of these villages are similarly situate and it has the same market value.

In this view of the matter, the court below was not correct in placing reliance upon the award 30C to determine the market value of the land in question. The said award cannot be treated as exemplar in absence of the material to show that the land under the said award was similarly situated as of the land in question."

Similar observations were also made by the learned Judge, when it was said: "From the statement of this witness, it is evident that the land of village Khatena Chak Dakhili is not similarly situated as the land in question. The land of village Khatena Chak Dakhili, therefore, cannot be compared with the land in question. Moreover the statement of P.W.2 Ibarat Ali in crossexamination itselfs shows Mental Hospital and Medical College adjoins each other and the village Khatena Chak Dakhili is about 111/2 km. away and the land in dispute is further far away is sufficient to hold that the land of the village Khatena Chak Dakhili is not similarly situate as the land in dispute is. "

The above observations clearly establish that the judgment of Mithlesh (supra) was case specific and the parties specific, having no binding force on the present batch of cases. There is dependable and trustworthy evidence on the record of this batch, including the acquisition plan to establish the inter se locations. In nutshell, it can be safely inferred that Mithlesh (supra) was a judgment in personam and not in rem. The Parishad has also failed to bring the judgment of Mithlesh (supra) on record and its mere reference by a law journal is not sufficient to consider it as a piece of evidence in view of Pal Singh & ors. v. Union Territory of Chandigarh, (1992) 4 SCC 400, wherein it was held by the Supreme Court that "there is no justification for us to act upon a subsequent judgment of the High Court, cited before us from a Law Report."

Another observation in Mithlesh (supra) render which rendered it to be ex facie erroneous was that "the said right was purchased by the claimant respondent by means of a sale deed dt. 10.10.1990 for a sum of Rs. 20,000/ only. The reference court has made an enhancement in compensation amount by 9 times which is not a small figure looking to the fact that the claimant respondent herself has valued it at Rs. 20,000/". In law, the amount paid by the claimant for the assignment of the compensation right in her favour had no nexus whatsoever with the amount of the compensation lawfully payable under the provisions of the LA Act. In Mithlesh (supra), the importance to the amount paid for the assignment of the compensation rights was wrongly attached. Neither the purchase of the compensation rights at a higher value nor at a lower value would either entitle or disentitle an assignee to get a higher or a lower sum.

Further, it may be noticed that in Mithlesh (supra) the claimant therein did not purchase the ''''land'' but purchased its ''''compensation rights'' on 10.10.1990 after the possession of the land stood taken on 26.7.1983 and it stood vested in the State. Indisputably, the "market value" of the "land" was ascertainable with reference to the date of the preliminary notification i.e. 4.4.1970. What was transferred to the claimant, Smt. Mithlesh, was not land but its compensation rights being tangible asset (i.e. an actionable claim) on a price negotiated and agreed between the assignor and the assignee. Needless to say that a land vis�vis its compensation rights were distinct kinds of properties, having different features and trappings and, therefore, their market values were also to be necessarily governed by the different factors. The amount paid for the assignment of the compensation rights (intangible asset) could not be relevant to assess the market value of the land (tangible asset). To compare the "market value" of two properties, they must necessarily possess identical and similar characteristics which are lacking in case of the compensation rights qua the acquired land. In Mrs. Khorshed Shapoor Chenai v. Asstt. Controller of Estate Duty, (1980) 2 SCC 1, the Supreme Court held that the valuation of the compensation rights could never be equal to the market value payable for the acquired land and it was succinctly held (in pr. 11 at pg. 11 of the Report):

".....In the case of the right to receive compensation, which is property, where the Collector''s award has been made but has not been accepted or has been accepted under protest and a reference is sought or is pending in civil court at the date of the deceased''s death, the estimated value can never be below the figure quantified by the Collector because under S. 25(1) of the Land Acquisition Act civil court cannot award any amount below that awarded by the Collector; the estimated value can be equal to the Collector''s award or more but can never be equal to the tall claim made by the claimant in the reference nor equal to the claim actually awarded by the civil court inasmuch as the risk or hazard of litigation would be a detracting factor while arriving at a reasonable and proper value of this property as on the date of the deceased''s death. The assessing authority will have to estimate the value having regard to the peculiar nature of the property, its marketability and the surrounding circumstances including the risk or hazard of litigation looming large at the relevant date....."

Similar view was also taken in Smt. Anjamali Khan (supra) and U.C. Mehatab (supra) with reference to the compensation payable under the Zamindari Abolition Act, wherein it was clearly held that "the value of assessee''s right to receive the compensation can only be the ''present'' value (i.e. the value as on the valuation date of the amount) that may be determined and paid as compensation in future. It cannot be equal to the amount of compensation payable under the Act."

In CWT v. Maharaja Kamal Kumar Singh, (1984) 2 SCC 476 and CWT v. Raghuvir Narayan Singh, (1984) 3 SCC 59, the view taken by the Supreme Court was that while estimating the value of an asset, the hazards with which it was encumbered must be taken into account in estimating its value. The agricultural incometax dues were held to be hazard to the compensation to which the assessee was entitled under the Bihar Land Reforms Act.

It is also a notorious fact that even when a sale deed of a land under acquisition is executed before an award is passed, it does not furnish the market value indicia as the buyer of such land would not pay its true value because of the immediate peril of its acquisition (See Virender Singh v. Union of India, (2003) 10 SCC 86).

Accordingly, the consideration paid for the assignment of compensation rights in Mithlesh (supra) had no relationship or nexus with the statutorily payable market value under the provisions of S. 23 (1), clause firstly, of the LA Act.

Further, the State and the Parishad, as the debtors were liable to pay the compensation amount and could not have escaped from their legal obligation to pay compensation as per the statute on ground of the assignment of the compensation rights (i.e. the actionable claim) vide Bagwat Dayal Singh, 35 Indian Appeals 48. In Mrs. Dawson v. Great Northern & City Rail Co. [19047] All. E.R. Rep. 913 (CA), it was also opined to the effect that "the company cannot take advantage of such a conveyance to escape from any obligation on their part subsisting at the time of the conveyance in respect of the lands conveyed." (at pg. 915). Further in view of S. 130 of the TP Act, the transfer of an actionable claim whether it is with or without consideration is complete and effectual upon the execution of an instrument which results in vesting of all the rights and remedies of the transferor. In other words, even the payment of consideration is not sine qua non for the transfer of an actionable claim. It also fortifies that the amount of consideration paid in Mithlesh (supra) for the assignment of the compensation rights was irrelevant, which had no relationship whatsoever with the amount statutorily payable under the LA Act for the land.

For the above reasons, we could not persuade ourselves to concur with the view taken by the learned Judge in Mithlesh (supra). Moreover, we also feel bound to consider these appeals on their own merits. The trustworthy evidence on record about comparability of the land of Khataina Chak Dakhili is available. In the award under appeal in FA Nos. 556 to 558 of 1997, the Tribunal below categorically also recorded its finding that "the disputed land was better in various respects in comparison to the land of Khataina Chak Dakhili involved in exemplar award Ex. 2." A perusal of the acquisition plan on record clearly establish that the land of Khataina Chak Dakhili was situated in the midst of the scheme in question, which was landlocked land which had no accessibility and was away from SikandraBodla Road as well as the Bharatpur Road. It was, in fact, lowlying land. Since the market value of such land of Khataina Chak Dakhili was assessed by the Spl. LAO @ Rs. 17.82 per sq. yard vide his award dt. 31.3.1986 and also of village Khataina assessed @ Rs. 19.98 per sq. yard vide his award dt. 15.7.1983 and 31.3.1986, the assessment of the market value of the land, in question, by the Tribunal after due consideration and weighing of the various factors such as location, level, nearness to roads and abadies, and other features fixed the market value @ Rs. 27/ per sq. yard which could not be faulted and needs our approval. The awards made by the Spl. LAO afforded a safe and trustworthy basis material and foundation for working of the market value of the lands in question as against some sale instances filed on behalf of the Parishad which reflected much lower rates than the amount fixed by the Spl. LAO in the aforesaid awards dt. 15.3.1983 & 31.3.1986 of Khataina and dt. 31.3.1986 of village Khataina Chak Dakhili.

The learned counsel for the claimants also referred to the award dt. 8.8.1997 made @ Rs. 50 per sq. yard by the Additional Collector (Land Acquisition), Agra which has been brought on record regarding the land of village Gailana Mustaqil, acquired under the selfsame scheme and notification. The facts leading to this award were that the owners of the land covered by the said award filed writ petitions under Article 32 of the Constitution before the Hon''ble Supreme Court which were decided vide judgment dt. 12.8.1993, reported in Gauri Shanker Gaur & ors. v. State of UP, AIR 1994 SC 169. The Hon''ble Supreme Court therein held an unreasonable delay in the notification u/s 32 of the Parishad Adhiniyam (analogous to S. 6) and, therefore, directed that the "petitioners shall be paid compensation on the market rate prevalent in the year of declaration analogous to S. 6 of the LA Act." Since the declaration u/s 6 was of June 28, 1980, the Additional Collector in the said award dt. 8.8.1997 assessed the market value @ Rs. 50/ with reference to June 28, 1980. It was contended on behalf of the claimants that the notifications u/s 28 & 32 in respect of the land in question including the lands covered by the aforesaid Additional Collector''s award dt. 8.8.1997 were one and the same and, therefore, it would be just and equitable to award the same rate of Rs. 50/ per sq. yard to the claimants also by extending the same benefit which was given by the Hon''ble Supreme Court to other similarly situated landowners covered by the aforesaid judgment dt. 12.8.1993. It was also contended that delay in issuance of S. 6 declaration was the same; merely because the present claimants did not file their writ petitions before the Supreme Court, they should not be discriminated in the matter of payment of the compensation. It was also pointed out by them that the market value of Rs. 50/ per sq. yard, as was fixed by the above award dt. 8.8.1997, has been further enhanced by the Tribunal to Rs. 150/ per sq. yard. The contention raised on behalf of the claimants has much force. The land owners of the same scheme with same dates of the notifications should not be given different rates merely on the ground that some of them approached the Supreme Court while others did not. In our considered opinion, the payment of market value at two different rates is not just, equitable and reasonable. For these compelling reasons also, even if we do not fix market value @ Rs. 50/ per sq. yard, the market value @ Rs. 27/ per sq. yard, as was fixed by the Tribunal, was the minimum and needs, in any view of the matter, to be sustained.

In view of the entirety of aforesaid facts, circumstances and law applicable thereto, the market value of Rs. 27/ per sq. yd., as was assessed in respect of the land parcels, in question, by the Tribunal, in our considered opinion, was just, equitable, proper and reasonable. The appeals of the Parishad for the reduction of the market value and that of the claimants for its enhancement should meet their fate with dismissal.

Point No. 2

The learned counsel on behalf of the Parishad submitted that the claimants in 14 first appeals, namely, 1047/95, 1046/95, 228/96, 556/97, 557/97, 558/97, 723/99, 332/2007, 273/94, 274/94, 368/97, 370/97, 263/98 & 555/99 are not entitled to receive compensation regarding the acquired land pursuant to the impugned awards as a "mere right to sue" in their respect was assigned by the tenure holders in favour of the present claimants which was hit by S. 6(e) of the TP Act. To this, the learned counsel for the claimants opposed by submitting that the term "property" has a widest import comprising therein the property of every description including the "right to receive compensation"; since the rights assigned to the claimants at both the ''preaward'' and ''postaward'' stages constituted a ''property'' therefore, on their assignment, the assignees/claimants stepped into the shoes of the assignors who became entitled to receive the compensation amount in view of Mrs. Khorshed Shapoor Chenai (supra). It was also submitted that in respect of the preaward assignments, the Spl. LAO himself accepted the assignments to be lawful and paid the awarded sum to the assignees/claimants.

In the above context, the issue for consideration is whether at both the stages, namely, the preaward stage (i.e. where award was not made by the Spl. LAO though possession was taken) and at the postaward stage (i.e. where the award stood made, compensation amount was paid but reference seeking higher compensation was also made), the then rights of the landowners constituted ''property'' capable of being transferred or they were the "mere right to sue" incapable of being transferred in view of S. 6(e) of the T.P. Act?

At the outset, it may be noticed that the aforesaid 14 appeals comprise of two categories, namely, (1) appeals relating to the preaward assignment, which include 8 first appeals being 1047/95, 1046/95, 228/96, 556/97, 557/97, 558/97, 723/99 & 332/2007 and (2) appeal relating to the postaward assignments, which include 6 first appeals being 273/94, 274/94, 368/97, 370/97, 263/98 & 555/99.

In the first category of the 8 appeals (i.e. FA Nos. 1047/95, 1046/95, 228/96, 556/97, 557/97, 558/97, 723/99 & 332/2007), the possession of the land parcels was taken between the years 1981 to 1984 by the Spl. LAO without making awards. Before the Spl. LAO could make his awards, the landowners assigned for consideration their compensation rights to the present claimants. Pursuant thereto, the Spl. LAO himself paid compensation to the assignees who also moved applications in their own names to seek references u/s 18 of the LA Act to the Tribunal. Finally, the Tribunal answered the references made by the Spl. LAO in favour of these ''preaward assignees'' by awarding a higher amount of the compensation to them.

In the second category of first appeals (i.e. FA Nos. 273/94, 274/94, 368/97, 370/97, 263/98 & 555/99), the landowners themselves received the compensation amount as was determined by the Spl. LAO, who did not accept the award and sought for the reference by moving their written applications. During the pendency of the reference proceedings before the Tribunal, they assigned their rights en mass including their right to receive compensation and to prosecute their reference proceedings. Pursuant thereto, these postaward assignees got their names added/substituted by the Tribunal''s orders on the basis of the consent given by the assignors and continued the reference proceedings. The Tribunal ultimately awarded a higher amount of compensation to these ''postaward assignees''.

Against the above factual backdrop, the true nature of the rights acquired by the assignees (the claimants in these 14 appeals) for both the stages i.e. ''preaward'' and ''postaward'' needs examination.

For this purpose, if we examine the scheme of the LA Act, it reveals that a land "vests" in the Government absolutely free from all encumbrances when its possession is taken either under S. 16 (post award) or 17(1) (preaward) of the LA Act. Immediately with the taking of the possession, the rights of a landowner extinguishes who acquires a vested, irrevocable and indefeasible ''right to receive compensation'' as per the LA Act, though it may be actually quantified later on and at different stages. In Joginder Singh and Ors. v. State of Punjab, (1985) 1 SCC 231, it was succinctly held that "the right to compensation and the quantification thereof are two distinct concepts. The right to compensation arises when the land vests in the State while its quantification may be concluded much later. Although the process of quantification may pass through several stages, from the Land Acquisition Officer to the District Judge and thereafter to the High Court, the process of quantification is merely one of computing the value of the land, on the principles enacted in the Land Acquisition Act. All along, however, the right to the compensation so quantified refers back to the date of acquisition."

Therefore, it is crystal clear that at the preaward stage, an exowner is entitled to receive compensation per the Collector''s award with his valuable right to seek a reference u/s 18 of the LA Act against such award. However, when an award is already made by the Collector which is not accepted by the person interested, he can, at that postaward stage, seek a reference u/s 18 of the LA Act to get his compensation judicially determined by the Reference Court subject to further appeals to the High Court and the Supreme Court. In both these ''preaward'' and ''postaward'' stages, the rights possessed by an exowner constitute "property" in view of the binding dictum of Mrs. Khorshed Shapoor Chenai (supra), wherein the contrary contention raised before the Supreme Court was as below (vide para 8):

"....... the compensation as determined under the awards made by the Special Deputy Collector was paid to and received by the deceased and, hence, at the time of the death the initial right to receive compensation had already merged in those awards and the only right which the deceased had was the right to agitate against the correctness of the award and nothing more and this right to claim further compensation was a precarious rights, being merely a right to litigate a chancy and dicey right, which could not be elevated to the status of any asset or property and as such, there was no question of any property having escaped the assessment to duty. It was urged there that such a right to further compensation would become property only when the claim would be accepted finally by the Court and till the enhanced compensation became payable by reason of final adjudication of the Court, no property could be said to have come into existence......."

The above quoted contention was rejected by the Hon''ble Supreme Court and clearly settled that the rights of an ex�owner at both the ''preaward stage'' and the ''postaward stage'' constituted a property. While dealing with the ''preaward stage rights'' (i.e. where land has already vested in the Government but the compensation was not received), it was observed as under (vide para 10):

"....... the right to receive compensation at market value on the dates of the relevant notifications unquestionably accrued to the deceased which was property and it would be such property that would pass on the death of the deceased. That such right is property is well settled and if necessary reference may be made to a decision of this Court in Pandit Lakshmi Kant Jha v. CWT, (1974) 3 SCC 126, a case under the Wealth Tax Act, 1957 where it has been clearly held that the right to receive compensation in respect of the Zamindari Estate which was acquired by the Government under the Bihar Land Reforms Act, 1950, even though the date of payment was deferred, was property and constituted an asset for the purpose of that taxing statute." (Emphasis added)

In Pandit Lakshmi Kant Jha (supra), the contention was that since the amount of compensation payable under the Bihar Land Reforms Act was not determined, therefore, it be excluded from the assets of the assessee for the purposes of the Wealth Tax Act. While rejecting this contention, the Supreme Court ruled:

"Assuming for the sake of argument that the amount of compensation payable to the assessee had not been determined by the Compensation Officer by the valuation date, that fact would not justify the exclusion of the compensation payable from the assets of the assessee. The right to receive compensation became vested in the assessee the moment he was divested of his estate and the same got vested in the State in pursuance of the provision of Bihar Land Reforms Act. As the estate of the assessee which vested in the State was known and as the formula fixing the amount of compensation was prescribed by the statute, the amount of compensation was to all intents and purposes a matter of calculation. The fact that the necessary calculation had not been made and the amount of compensation payable to the assessee out of the definition of assets or make it cease to be property." (para 19)

Pandit Laxmikant Jha (supra) was, later, followed by the Supreme Court in CWT v. Smt. Anjamli Khan, 1991 Sup. (2) SCC 681 and CWT v. U.C. Mehtab, (1997) 10 SCC 252. In UP Jal Nigam v. Kalra Properties (P) Ltd, (1996) 3 SCC 124 also, the view taken by the Supreme Court was that the purchaser would be entitled to step into the shoes of the owner and to claim payment of the compensation according to the provisions of the LA Act.

It may also be mentioned that the Court of Appeal in England, more than a century back, in its judgment of Mrs. Dawson (supra) also held that "his right to be paid compensation under the notice to treat, which is not simply a right to claim damages for a wrongful act, but is a right to a payment under the terms of a statute and to be ascertained in the way prescribed by the legislature, which is to be regarded as the price payable for the exercise by the undertakes of their statutory powers, and as such is property." This opinion is also clearly in line with the view taken by the Hon''ble Supreme Court.

Mrs. Khorshed Shapoor Chenai (supra) also clearly lays down that even at the ''postaward stage'', the rights of an exowner constitute a property, if a reference against the award is sought under S. 18 of the LA Act. It was held as below (vide para 11):

"In our opinion the High Court was right in holding that there are no two separate rights one a right to receive compensation and other a right to receive extra or further compensation. Upon acquisition of his lands under the LA Act, the claimant has only one right which is to receive compensation for the lands at their market value on the date of the relevant notification and it is this right which is quantified by the Collector under S. 11 and by the Civil Court under S. 26 of the LA Act. It is true that under S. 11, the Collector after holding the necessary inquiry determines the quantum of compensation by fixing the market value of the land and in doing so is guided by the provisions contained in S. 23 and 24 of the Act the very provisions by reference to which the Civil Court fixes the valuation. It is also true that the Collector''s award is, under S. 12, declared to be, except as otherwise provided, final and conclusive evidence as between him and the persons interested. Even so, it is well settled that in law the Collector''s award under S. 11 is nothing more than an offer of compensation made by the Government to the claimants whose property is acquired. [Vide Privy Council decision in Ezra v. Secretary of State for India, 32 IA 93 (PC) and this Court''s decisions in Raja Harish Chandra v. Deputy. LAO, AIR 1961 SC 1500 and Mr. G.H. Grant v. State of Bihar, AIR 1966 SC 237. If that be the true nature of the award made by the Collector then the question whether the right to receive compensation survives the award must depend upon whether the claimant acquiesces therein fully or not. If the offer is acquiesced in by total acceptance the right to compensation will not survive but if the offer is not accepted or is accepted under protest and a land reference is sought by the claimant under S. 18, the right to receive compensation must be regarded as having survived and kept alive which the claimant prosecutes in civil court. It is impossible to accept the contention that no sooner the Collector has made his award under S. 11, the right to compensation is destroyed or ceases to exist or is merged in the award, or what is left with the claimant is a mere right to litigate the correctness of the award."

As to the right of an owner in a reference proceedings, it was also observed by the Supreme Court that "the claimant can litigate the correctness of the award because his right to compensation is not fully redeemed but remains alive which he prosecutes in civil court. That is why when a claimant dies in a pending reference his heirs are brought on record and are permitted to prosecute the reference."

In view of the above binding decisions of the Supreme Court, it is crystal clear that the "right to receive compensation" in respect of an acquired land both at ''preaward'' and ''postaward'' stages is a "property" and the contrary contention of the Parishad is totally devoid of any substance and is, accordingly, rejected.

The contention raised on behalf of the Parishad that the rights assigned by the exlandowners both at ''preaward'' and ''postaward'' stages were "mere right to sue" and their assignments were hit by S. 6(e) of the TP Act, has also no force. As held above, the rights assigned by the extenure holders constituted a "property" which could not be termed as a "mere right to sue". It may be recalled that S. 6 of the TP Act provides for that the "property of any kind may be transferred except as otherwise provided by this Act or any other law for the time being in force." The exceptions to this general rule of transferability of a property, as stipulated in S. 6, are enumerated from clauses (a) to (i) but none of these clauses forbids the transfer of the "compensation rights". No other provision of the TP Act or any other law also prohibits its transfer. Rather, S. 8 of the TP Act further envisages the incidences of a transfer by postulating that "unless a different intention is expressed or necessarily implied, a transfer of property passes forthwith to the transferee all the interest which the transferor is then capable of passing in the property and in the legal incidents thereof." As such, a transfer of a property "vests" in the transferee the entire interest of the transferor with all legal incidents thereof, unless the parties intend differently. In view of S. 8 of the TP Act, it would be evident that the transfer of the property (namely, the right to receive compensation) vested in the assignees all the rights of the assignor and the assignees, thereby, entered into their shoes with the right to recover the compensation.

Further, the word ''mere'' as employed in S. 6(e) of the TP Act is significant, which depicts the distinction between a ''mere right to sue'' and a ''right to sue''. It needs mention that it is now settled law that no legal bar exists to transfer a "right to sue" as one of the incidents attached to a "property" vide Union of India v. Shri Sharada Mills, (1972) 2 SCC 877 and Mrs. Dawson v. Great Northern & City Rail Co. (supra). Thus, the law is that the "right to sue" can be assigned as an incidental, ancillary and subsidiary right in favour of an assignee alongwith the right to recover the assigned property. The assignment of the "right to sue" should necessarily be along with the property and not de hors the property.

The various High Courts have also taken similar views consistently a catena of the judgments and the notable decisions are: Manmatha Nath Dutt ors. v. Motilal Mitra, AIR 1929 Calcutta 719, Jagannath Marwari v. Kalidas Raha, AIR 1929 Patna 247 (DB), Ganga Din & anr. v. Piyare, AIR 1929 Allahabad 63, Susai Lazar Villavaraya v. M. Ramaswami Naidu & ors., AIR 1933 Madras 710 and Benumetcha Gangaraju v. Veluri Gopala Krishnamurthi AIR 1957 AP 190 (FB).

On the request of the counsel for the Parishad, the claimants brought on record the copies of the assignment deeds dt. 26.3.1984, 5.11.1984, 12.1.1984, 11.6.1984, 3.2.1984, 22.6.1984, 5.8.1984 by moving an application in respect of transfer of rights involved in FA No. 1037/95, 1046/95, 228/96, 556/97, 557/97, 558/97 & 332/2007 respectively, which are taken on record. The assignment deed dt. 8.12.1988 of the rights involved in FA Nos. 273/94, assignment deed dt. 7.1.1989 of the compensation rights involved in FA No. 274/1994 and similarly, the assignment deeds dt. 8.2.1984, 24.2.1984 & 27.2.1984 of the rights involved in FA No. 723/1999 being Exhibit9 to Exhibit11 are on record. From a bare perusal of these assignment deeds as well as the deeds on the record of other first appeals, it is crystal clear that the claimants were assigned not merely "the right to prosecute" the reference proceedings but they were also assigned the valuable rights to recover the ''amount of compensation'' both in the preaward and postaward assignments, which constituted property. It is also not the case of the Parishad or the State that the assignees were assigned only the "right to pursue or prosecute" the proceedings either before the Spl. LAO (in the cases of preaward assignments) or before the Reference Tribunal (in the cases of postaward assignments). It is evident from the documents on record that the en masse and enblock rights of the assignors including the "right to receive compensation" were assigned to the present claimants and, therefore, the contention of the Parishad based on S. 6(e) of the TP Act is devoid of any factual or legal foundation and substance, and is, accordingly, rejected.

There is an additional reason also to hold the ''preaward assignments'' as good. It is an admitted fact that the Spl. LAO himself acted upon the assignment deeds executed in favour of the preaward assignees and paid the awarded sum of compensation to them. Hence, it would not be open for the State or its beneficiary (i.e. Parishad) to dispute such assignments in view of UPSIDC v. Rishabh Ispat Ltd. & ors., (2007) 2 SCC 248, wherein the Supreme Court held that since the State recognized the rights of the claimant and made the references and, therefore, it could not contend otherwise. We are, therefore, of considered view that the State or its beneficiary (i.e. the Parishad), having acted upon and acquiesced to the preaward assignments cannot dispute them.

It may also be mentioned that the preaward assignees of compensation rights had the legal right to move reference applications u/s 18 of the LA Act, as its plain reading would show that "any person interested who has not accepted the award may, by written application to the Collector, require that the matter be referred by the Collector for the determination of the Court." The right to seek reference is, thus, given to "any person interested", which term is defined in S. 3(b) of the LA Act to include "all persons claiming an interest in compensation to be made on account of acquisition of land". This definition encompasses every person who "claims an interest in compensation". The various decisions holding field as to the connotation and construction of the term "person interested" clearly support this view. In Sunder Lal v. Paramsukh Das, (1968) 1 SCR 362, the Supreme Court held that "it is not necessary that in order to fall within the definition, a person should claim an interest in land, which has been acquired. A person becomes a person interested if he claims an interest in compensation to be awarded." A similar view was also taken by the Supreme Court in Himalayan Tiles & Marbles (P) Ltd. v. Francis Victor Coutinho (dead) by Lrs. & ors., (1980) 3 SCR 235, where it was held that "the definition of ''a person interested'' given in S. 18 is an inclusive definition and must be liberally construed so as to embrace all persons who may be directly or indirectly interested either in the title to the land or in the quantum of compensation." As a result of the assignment of the compensation rights, effected prior to the making of the award by the Spl. LAO, all the rights and remedies devolved upon the assignees/claimants, who having stepped into the shoes of the exowners, claimed an interest in compensation and, thereby, clearly fell within the ambit of the term "person interested" and became entitled to seek a reference u/s 18 of the LA Act. S. 8 of the T.P. Act read with S. 146 and Order 22 Rule 10 of the CPC also supported the assignees for moving their reference application.

Point No. 3

It was faintly submitted on behalf of the Parishad that the impugned awards, giving rise to the FA Nos. 1046/95, 1037/95, 228/96, 556/97, 557/97, 558/97 and 332/2007, were made by the Tribunal without notice to the Parishad but such contention is factually incorrect. A perusal of the Lower Court records of the LA References, giving rise to the aforesaid appeals clearly establish beyond any doubt that the claimants themselves moved the applications before the Tribunal for the issue of the notices to the Parishad, which were allowed by the Tribunal and pursuant thereto, the notices were in fact issued by the Tribunal and also stood duly served upon the Parishad. The claimants also filed an affidavit with its annexures in this Court (taken on record vide order dt. 7.4.2010 passed on Application No. 67115), which also amply establish the factum of service of the notice upon the Parishad. The counsel for the Parishad also admitted it. Hence, the above submission of the Parishad has no substance and is, accordingly, rejected.

Point No. 4

It is now settled law that the pecuniary benefits of the LA Amendment Act No. 68 of 1984 are available to all acquisitions made for the Parishad in view of UP Avas Evam Vikas Parishad v. Jainul Islam, AIR 1998 SC 1028, Nagpur Improvement Trust v. Vasantrao & ors., (2002) 7 SCC 657, Savitri Cairai v. UP Avas Evam Vikas Parishad, (2003) 6 SCC 255. In the present matters, the awards by the Spl. LAO were made after 30th April, 1982 and, therefore, the aforesaid 1984 Amendment Act would ipso facto apply. The claimants are, accordingly, entitled to the benefits of the Amendment Act. The claimants are also entitled to statutory interest on compensation in terms of the decision of Sunder v. UOI, (2001) 7 SCC 211 and Nagpur Improvement Trust v. Vasantrao & ors., (2002) 7 SCC 657 (pr. 29, 30 & 64). The contrary view taken by the Tribunal below in some of the impugned awards is erroneous.

Point No. 5

In view of the foregoing, the appeals of the Parishad and the cross appeals of the claimants deserve dismissal. The determination of the market value @ Rs. 27/ per sq. yard merits to be affirmed. However, the claimants are entitled to the statutory benefits of the 1984 Amendment Act alongwith the statutory interest under Ss. 28 and 34 of the LA Act on the amount of compensation as per law. As in some of the appeals, the amount awarded by the Tribunal has been paid partly, the part amount so paid shall be appropriated first towards interest, then towards cost and, thereafter, towards principal amount in view of the ratio of Gurpreet Singh v. UOI, (2006) 8 SCC 457.

No other point has either been argued or pressed.

Accordingly, the appeals of the Parishad and the cross appeals of the claimants are dismissed and the impugned awards of Rs. 27/ per sq. yard are affirmed. The claimants are also held entitled to the statutory benefits of the 1984 Amendment Act along with the statutory interest under Ss. 28 and 34 of the LA Act on the entire amount of compensation from the date of possession to the date of its actual payment and the rule of appropriation, as laid down in Gurdeep Singh (supra), will apply. Since the proceedings for acquisition in the present matters commenced four decades back, the Parishad shall pay the entire sum, as above, if not already paid, within a period of 9 months from today with interest up to the date of payment. The parties would bear their own costs.