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Friday, July 25, 2014

L.A.Act - Sec.28, 23 ( 1A) - the provisions of Section 23(1A) of the L.A. Act are mandatory and the claimants-appellants are entitled to 12% enhanced compensation for the period commencing from the date of publication of Notification under Section 4 of the L.A. Act. The High Court also failed to appreciate that the appellants are entitled to interest @ 15% per annum as contemplated under proviso to Section 28 of the L.A. Act as the compensation was paid after the expiry of period of one year. = JAI KRISHAN (D) Thr. LRs. … APPELLANT VERSUS STATE OF UTTARAKHAND & ORS. … RESPONDENTS = 2014 - July. Part - http://judis.nic.in/supremecourt/filename=41721

       L.A.Act - Sec.28, 23 ( 1A) - the provisions of Section  23(1A) of the L.A. Act are mandatory and the claimants-appellants are  entitled  to 12% enhanced compensation  for  the  period  commencing  from  the  date  of publication of Notification under Section 4 of the L.A. Act. The High  Court also failed to appreciate that the appellants are  entitled  to  interest  @ 15% per annum as contemplated under proviso to Section 28 of  the  L.A.  Act as the compensation was paid after the expiry of period of one year. =

The Reference Court awarded enhanced compensation but such amount  was
deposited in the Court after the date of expiry of period of  one  year.  In
the circumstances,  we  hold  that  the  appellants  are  also  entitled  to
interest @ 15% per annum under proviso to Section 28 of the L.A. Act.
18.   The High Court failed to notice that the provisions of Section  23(1A)
of the L.A. Act are mandatory and the claimants-appellants are  entitled  to
12% enhanced compensation  for  the  period  commencing  from  the  date  of
publication of Notification under Section 4 of the L.A. Act. The High  Court
also failed to appreciate that the appellants are  entitled  to  interest  @
15% per annum as contemplated under proviso to Section 28 of  the  L.A.  Act
as the compensation was paid after the expiry of period of one year.
19.   The High Court instead of dismissing  the  review  petition  ought  to
have condoned the delay, reason  of  which  was  sufficiently  explained  by
appellant and ought to have allowed the revision application  in  favour  of
the appellant.
20. In view of the findings recorded above, we set aside  the  part  of  the
impugned judgment dated 16th July, 2005 so far as it relates to  payment  of
compensation for the land, uphold the award passed by  the  Reference  Court
to the extent  above  and  direct  the  respondents  to  pay  12%   enhanced
compensation in terms of Section 23(1A) and another 15%  interest  in  terms
of proviso to Section 28 of the L.A.  Act  as  ordered  above  within  three
months..
21.    The  appeals  are  allowed  with  the  aforesaid   observations   and
directions.  There shall be no order as to costs.
2014 - July. Part - http://judis.nic.in/supremecourt/filename=41721

                                                            REPORTABLE
                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                    CIVIL APPEAL NOs.            OF 2014
                   (@ out of SLP (C) Nos.36299-36303/2010)


JAI KRISHAN (D) Thr. LRs.                     … APPELLANT

                                   VERSUS

STATE OF UTTARAKHAND & ORS.                  … RESPONDENTS



                               J U D G M E N T


SUDHANSU JYOTI MUKHOPADHAYA, J


      Leave granted.

2.    These appeals are directed against the judgment and order  dated  16th
July, 2005 passed by the High Court  of  Uttaranchal  (now  Uttarakhand)  at
Nainital in first Appeal No. 56 of 2001 (Old No.325/1995). By  the  impugned
judgment, the Division Bench of the High Court  partly  allowed  the  appeal
preferred by the State of U.P., set aside part of  the  judgment  and  award
dated 23rd March, 1995 passed by the Reference Court.
3.    The factual matrix of the case is as follows:
      A Notification under Section 4 of the Land Acquisition Act,  1894  was
issued on 14th September, 1977 for the purpose of acquiring  land  measuring
36 acres situated at Glenmire Estate, cosycot  and  cosynook  in  Mussoorie.
The acquisition was so made for the purpose  of  extension  of  Lal  Bahadur
Shastri National Academy of Administration, Mussoorie.    Thereafter  follow
up Notification under Section 6 of the L.A.Act was issued on  30th  January,
1978 which was also published. The possession of the land was taken over  on
3rd July, 1986. The Special Land  Acquisition  Officer,  after  hearing  the
parties passed the award on 27th November, 1984 determining  the  amount  of
compensation at Rs.4,89,615.75.
4.    Col. Jai Krishan (since deceased) represented by Lrs.
(appellant  herein)   and  Mahesh  Chandra-  respondent  no.8,   got   filed
reference  under Section 18  of  the  L.A.  Act.   The  said  reference  No.
L.A.154 of 1985 heard  by  the  Additional  District  Judge,  Dehradun.  The
aforesaid claimants alleged before the Reference Court that considering  the
fact that Mussoorie is a famous  tourist  place,  its  land  is  of  immense
potential value, the market value of the land in question is Rs.25 lakh  per
acre. As such they claimed compensation for 36 acres of acquired land.  They
further claimed that  the  value  of  the  constructed  building  cannot  be
assessed less than Rs. 100/- per sq. feet and,  therefore,  considering  the
plinth area of 3786 sq. feet of Glenmire building, 2528 sq. ft. of  Cosynook
building and other construction, the valuation should be  Rs.6,31,400/-  and
after deducting the amount on account of depreciation factor  the  value  of
building is Rs. 4,73,550/-.  There were  6990  trees  on  the  aforesaid  36
acres of land. The claimants also submitted before the reference court  that
considering the fact that value of the  trees  which  has  been  assessed  @
Rs.15/- per tree, should have been at least Rs.50/- per tree. In reply,  the
stand of the State of U.P. was  that  the  claimants  have  already  claimed
Rs.7,50,000/- as compensation for the acquired land and  as  such  they  are
not entitled to claim any amount more than  that.  It  was  further  pleaded
that the land being sloppy and uneven as such it  cannot  be  assessed  more
than Rs.5,000/- per acre. The respondents based their claim on the basis  of
the rate shown in exemplar sale deed dated 26th December, 1976.
5.    The Reference  Court  after  framing  necessary  issues,  taking  into
consideration the evidence and hearing the parties enhanced  the  amount  of
compensation of land from Rs.1,80,000/- to Rs.19,76,000/- and that of  trees
from Rs.1,05,155.50 to Rs.4,00,000/-. Aggrieved by the order passed  by  the
Reference Court the State and Union of India preferred the appeal.
6.    The Division Bench of Uttarakhand High Court by the impugned  judgment
dated 16th July, 2005 applied the principle of  Belting  area  on  following
presumption:
 “No doubt that Mussoorie is an important tourist place and its land  is  of
immense potential value but simultaneously it is also true that the land  in
Mussoorie is sloppy and hilly.  As such for assessing a  true  market  value
that flat rate, for entire land of 36 acres, cannot be applied.”

7.    The claimants also claimed 12% additional compensation u/s  23(1A)  of
the L.A. Act, which the Court below had  not  granted.  The  claimants  also
claimed that they were entitled to receive a sum of Rs.  7,01,875/-  towards
Fuel value/Timber value of  the  tree  standing  on  the  acquired  land  as
approved  by  the  retired  Forest  Ranger.  They  also  pleaded  that   the
compensation having been paid after more than one  year  from  the  date  on
which possession was taken, they are entitled for interest @ 15%  per  annum
as provided under proviso to Section 28 of the L.A.  Act.   Such  claim  was
made by the appellant and another by means  of  cross-objections.   However,
the High Court without deliberating on such issues as raised  in  the  cross
objections  passed  the  impugned  judgment.   In  the  circumstances,   the
appellant and another preferred Review Petition No. 87 of  2005  before  the
High Court with a petition for condonation of delay.
8.    The impugned judgment was delivered on 16th July, 2005  and  a  review
petition was filed on 15th September, 2005 i.e. after 30  days  delay.   The
appellant and another took specific plea that  their  lawyer  used  to  come
from Allahabad to Nainital  who  when  came  to  know  about  the  judgment,
applied for the  certified  copy  of  it  on  4th  August,  2005  which  was
delivered on 9th August, 2005. Thereafter sometime was  taken  to  file  the
review petition. The High Court dismissed the petition  for  condonation  of
delay and review petition on the ground of non-prosecution. The  restoration
petition filed by the appellant was also dismissed.
9.    Learned counsel for the  appellants  submitted  that  the  High  Court
wrongly applied the principle of belting area.    The 36 acres  of  land  is
adjacent to the Lal Bahadur  Shastri  National  Academy  of  Administration.
Mussoorie and is located at tourist spot.  He  further  contended  that  the
appellants were entitled for  12%  additional  compensation  u/s  23(1A)  in
addition 15% solatium u/s 28 of the L.A.Act in view of  delayed  payment  of
compensation after more than one year. The stand of the learned counsel  for
the respondent-State is that the High Court rightly  applied  the  principle
of belting area as the land is sloppy and  uneven.
10.   As noticed  above,  the  High  Court  noticed  that  Mussoorie  is  an
important tourist place and it is the land of immense potential  value.  But
without any basis or pleadings, the High Court presumed that total  land  in
Mussoorie is sloppy and hilly.  The High Court though noticed  the  exemplar
sale-deed dated 31.3.1977 (paper no. 17-C) which shows the market  value  of
the land at Rs. 54,896/- per acre and the said  sale-deed  pertains  to  the
land nearer to the Lal Bahadur Sastri National  Academy.   But  without  any
basis, the High Court observed as under:
 “We are of the view that the rate mentioned in  this  sale-deed  cannot  be
applied as exemplar for entire land acquired. Value of the  land  cannot  be
said to be same for all the 36 acres acquired as part of the land  would  be
nearer to it and part of it would be a far.”

      The aforesaid observation made by  the  Division  Bench  of  the  High
Court is not based on any evidence but  on  presumption  and  surmises.   It
cannot be a ground that the Mussoorie is a hilly  place  and  therefore  the
principle of Belting area is to be applied.  It was  not  the  case  of  the
State of U.P. that in all land  acquisition  proceedings  in  Mussoorie  the
principle  of  Belting  area  is  applied.  In  this  background   on   mere
presumption it was not open to the High Court to apply principle of  belting
area for determination of compensation.  The High Court  has  also  accepted
that the market value of the land in question is Rs. 54,896/-  per  acre  as
decided by the Reference Court; therefore in absence of any pleading on  the
part of State of U.P. it was not open  for  the  High  Court  to  apply  the
principle of belting area.
11.   It has not been disputed that the site of new  town  of  the  acquired
land is almost at the same elevation as Mussoorie as it has  been  developed
as a Hill resort and has immense potential value. It is adjacent to the  Lal
Bahadur  Shastri  National  Academy,  which  is  the  beneficiary  of   such
acquisition.
12.   For the reason aforesaid, the part  of  the  impugned  judgment  dated
16th July, 2005 passed by the High Court in so for  as  it  relates  to  the
valuation of land is set aside and the award passed by the Revisional  Court
under Section 18 is upheld.
13.   The provisions of Section 23(1A) of the L.A. Act mandate as follows:
“23  Matters  to  be  considered  in  determining  compensation.  —   (1) In
determining the amount of compensation  to  be  awarded  for  land  acquired
under this Act, the Court shall take into consideration

first, the market value of the land  at  the  date  of  the  publication  of
the notification under section 4, sub-section (1);

secondly, the damage sustained by the person interested, by  reason  of  the
taking of any standing crops or trees which may be on the land at  the  time
of the Collector's taking possession thereof;

thirdly, the damage (if any), sustained by the  person  interested,  at  the
time of the  Collector's  taking  possession  of  the  land,  by  reason  of
severing such land from his other land;

fourthly, the damage (if any), sustained by the person  interested,  at  the
time of the Collector's taking possession of the  land,  by  reason  of  the
acquisition injuriously affecting his other property, movable or  immovable,
in any other manner, or his earnings;

fifthly,  if,  in  consequence  of  the  acquisition  of  the  land  by  the
Collector, the person interested is compelled to  change  his  residence  or
place of business, the reasonable  expenses  (if  any)  incidental  to  such
change; and

sixthly, the damage (if any) bona fide  resulting  from  diminution  of  the
profits of the land between the time of the publication of  the  declaration
under section 6 and the time of the Collector's  taking  possession  of  the
land.

[(1A) In addition to the market-value of the land, as  above  provided,  the
Court shall in every case award an amount calculated at the rate  of  twelve
per cent per annum on such market value for the  period  commencing  on  and
from the date of the publication of the notification under Section  4,  sub-
Section (1), in respect of such land to the date of award to  the  Collector
or the date of taking possession of the land, whichever is earlier.”

Explanation- In computing the period referred to in  this  sub-section,  any
period or periods during which the proceedings for the  acquisition  of  the
land were held up on account of any stay or injunction by the order  of  any
Court shall be excluded.]”

14.   In Gurpreet Singh vs. Union of India, (2006)  8  SCC  457  this  Court
noticed the  claim  which  envisages  award  of  compensation  at  different
stages. In all the stages, it is necessary to take note  of  the  provisions
of Sections 23(1) and 23(1-A). In Gurpreet Singh (supra) this Court held  as
under:
“32. In the scheme of the Act, it is seen that the award of compensation  is
at different stages. The first  stage  occurs  when  the  award  is  passed.
Obviously, the award takes  in  all  the  amounts  contemplated  by  Section
23(1), Section 23(1-A), Section  23(2)  and  the  interest  contemplated  by
Section 34 of the Act. The whole of that amount is paid or deposited by  the
Collector in [pic]terms of  Section  31  of  the  Act.  At  this  stage,  no
shortfall in deposit is contemplated, since the  Collector  has  to  pay  or
deposit the amount awarded by him. If a shortfall is  pointed  out,  it  may
have to be made up at that stage and  the  principle  of  appropriation  may
apply, though it is difficult to  contemplate  a  partial  deposit  at  that
stage. On the deposit by the Collector under Section  31  of  the  Act,  the
first stage comes to an end subject to the right of the claimant  to  notice
of the deposit and withdrawal or acceptance of the amount  with  or  without
protest.
33. The second stage occurs on a reference under  Section  18  of  the  Act.
When the Reference Court awards enhanced compensation,  it  has  necessarily
to take note of the enhanced amounts payable under  Section  23(1),  Section
23(1-A), Section 23(2) and interest on the enhanced amount  as  provided  in
Section 28 of the Act and costs in terms of Section 27.  The  Collector  has
the duty to deposit  these  amounts  pursuant  to  the  deemed  decree  thus
passed. This has nothing to do with the earlier deposit made or to  be  made
under and after  the  award.  If  the  deposit  made,  falls  short  of  the
enhancement decreed, there can arise the question of appropriation  at  that
stage, in relation to the amount enhanced on the reference.”

      In view of the decision in Gurpreet Singh(Supra),  we  hold  that  the
claimants are entitled  to  additional  compensation  @  12%  per  annum  as
provided u/s 23(1A) of the L.A. Act.
15.   Section 28 of the L.A. Act  deals  with  interest  payable  on  excess
compensation which reads as under:
 “28. Collector may be directed to pay  interest  on  excess  compensation.-
—If the sum which, in the opinion of the Court, the Collector ought to  have
awarded as compensation is in excess of the  sum  which  the  Collector  did
award as compensation, the award of the Court may direct that the  Collector
shall pay interest on such excess at the rate of 67 [nine  per  centum]  per
annum from the date on which he took possession of the land to the  date  of
payment of such excess into Court:

[Provided that the award of the  Court  may  also  direct  that  where  such
excess or any part thereof is paid into Court after the date of expiry of  a
period of one year from the date on which possession is taken,  interest  at
the rate of fifteen per centum per annum shall be payable from the  date  of
expiry of the said period of one year on the amount of such excess  or  part
thereof which has  not  been  paid  into  Court  before  the  date  of  such
expiry.].”

16.   In Sunder vs. Union of India, (2001) 7 SCC 211 this  Court  held  that
the interested persons are also interested on amount of solatium. The  Court
further observed as under:
“15. When the court is  of  the  opinion  that  the  Collector  should  have
awarded a larger sum as compensation the court has to direct  the  Collector
to pay interest on such excess amount. The rate of  interest  is  on  a  par
with the rate indicated in Section 34. This is so provided in Section 28  of
the Act. x x x x x x”

      In Gurpreet Singh (supra) the reasons in this regard was explained  as
under:

“54. One other question also was sought to be raised and  answered  by  this
Bench though not referred to it. Considering that  the  question  arises  in
various cases pending in courts all  over  the  country,  we  permitted  the
counsel to address us on that question. That  question  is  whether  in  the
light of the decision in Sunder(supra) the  awardee/decree-holder  would  be
entitled to claim interest  on  solatium  in  execution  though  it  is  not
specifically granted by the decree. It is well  settled  that  an  execution
court cannot go behind the decree. If, therefore, the claim for interest  on
solatium had been made and the same has been negatived either  expressly  or
by necessary implication by the judgment or decree of  the  Reference  Court
or of the appellate court, the execution  court  will  have  necessarily  to
reject the claim for interest on solatium  based  on  Sunder(Supra)  on  the
ground that the execution court cannot go behind  the  decree.  But  if  the
award of the Reference Court  or  that  of  the  appellate  court  does  not
specifically refer to the question of  interest  on  solatium  or  in  cases
where claim had not been made and rejected either expressly or impliedly  by
the  Reference  Court  or  the  appellate  court,  and  merely  interest  on
compensation is awarded, then it would be open to  the  execution  court  to
apply the ratio of Sunder(supra)  and  say  that  the  compensation  awarded
includes solatium and in such an event  interest  on  the  amount  could  be
directed to be deposited in execution. Otherwise, not. We also clarify  that
such interest on solatium can be claimed only in pending executions and  not
in closed executions and the execution court will be entitled to permit  its
recovery from the date of the judgment in Sunder (Supra)(19-9-2001) and  not
for any prior period.  We  also  clarify  that  this  will  not  entail  any
reappropriation or fresh appropriation by the decree-holder.  This  we  have
indicated by way of clarification  also  in  exercise  of  our  power  under
Articles 141 and 142 of the Constitution of  India  with  a  view  to  avoid
multiplicity of litigation on this question.”

      The aforesaid principle has  also  been  followed  by  this  Court  in
Chhanga Singh and Another vs. Union of India and Another (2012) 5 SCC 763.
17.   The Reference Court awarded enhanced compensation but such amount  was
deposited in the Court after the date of expiry of period of  one  year.  In
the circumstances,  we  hold  that  the  appellants  are  also  entitled  to
interest @ 15% per annum under proviso to Section 28 of the L.A. Act.
18.   The High Court failed to notice that the provisions of Section  23(1A)
of the L.A. Act are mandatory and the claimants-appellants are  entitled  to
12% enhanced compensation  for  the  period  commencing  from  the  date  of
publication of Notification under Section 4 of the L.A. Act. The High  Court
also failed to appreciate that the appellants are  entitled  to  interest  @
15% per annum as contemplated under proviso to Section 28 of  the  L.A.  Act
as the compensation was paid after the expiry of period of one year.
19.   The High Court instead of dismissing  the  review  petition  ought  to
have condoned the delay, reason  of  which  was  sufficiently  explained  by
appellant and ought to have allowed the revision application  in  favour  of
the appellant.
20. In view of the findings recorded above, we set aside  the  part  of  the
impugned judgment dated 16th July, 2005 so far as it relates to  payment  of
compensation for the land, uphold the award passed by  the  Reference  Court
to the extent  above  and  direct  the  respondents  to  pay  12%   enhanced
compensation in terms of Section 23(1A) and another 15%  interest  in  terms
of proviso to Section 28 of the L.A.  Act  as  ordered  above  within  three
months..
21.    The  appeals  are  allowed  with  the  aforesaid   observations   and
directions.  There shall be no order as to costs.

                                                          …………………………………………J.
                                               (SUDHANSU JYOTI MUKHOPADHAYA)


                                                          …………………………………………J.
                                (DIPAK MISRA)
NEW DELHI,
JULY 01, 2014.

ITEM NO.1G               COURT NO.6                 SECTION X

(For Judgment)



               S U P R E M E  C O U R T  O F  I N D I A

                          RECORD OF PROCEEDINGS

Civil Appeal No(s). …............/2014

(@SLP (C) No 36299-36303/2010



JAI KRISHAN(D) TR.LRS.                             Appellant(s)



                                VERSUS



STATE OF UTTARAKHAND & ORS.                        Respondent(s)





Date : 01/07/2014       These  appeals  were  called  on  for  pronouncement
            of Judgment today.



For Appellant(s)       Mr. Mohit D. Ram ,Adv.



For Respondent(s)            Mrs. Anil Katiyar ,Adv.

                         Mr. Saurabh Trivedi ,Adv.

                         Mr. Rahul Narayan ,Adv.





       Hon'ble  Mr.  Justice  Sudhansu  Jyoti  Mukhopadhaya  pronounced  the
reportable judgment of the Bench comprising His  Lordship  and  Hon'ble  Mr.
Justice Dipak Misra.



      The appeals are allowed in terms of the signed reportable judgment.











(MEENAKSHI KOHLI)                               (USHA SHARMA)

  COURT MASTER                                   COURT MASTER



             [Signed reportable judgment is placed on the file]


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