TMI Blog2008 (9) TMI 977X X X X Extracts X X X X X X X X Extracts X X X X ..... District Allahabad were acquired for construction of a Mandi Samiti. Out of these 22 First Appeals, three First Appeals have been filed by the claimants for enhancement of the market rate determined by the Reference Court while the remaining 19 First Appeals have been filed by the Mandi Samiti for reduction of the market rate. The particulars of all the First Appeals are contained in the Schedule to this judgment. The notification under Section 4(1) of the Act for acquisition of land situated in these three villages was issued on 12th January, 1977 and the declaration under Section 6 of the Act was made on 26th January, 1977. The Special Land Acquisition Officer gave the award under Section 11 of the Act in respect of the land acquired in village Mundera on 11th June, 1980 and for the land acquired in villages Neem Sarai and Chak Maida Patti on 10th July, 1981. The Special Land Acquisition Officer determined the market rate of the land for villages Mundera and Chak Maida Patti at a uniform rate @ ₹ 2400/- per bigha while for the land acquired in village Neem Sarai, the Special Land Acquisition Officer adopted the belting system. The market rate of the land falling in the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i Nandan Agarwal 37/82 Neem Sarai 10.7.1981 14.1.1987 Rs.20,338.98 Per Bigha 30% 9/15% 6. FA 771/89 K.U.M.S. Vs. D.N. Agarwal 36/82 Neem Sarai 10.7.1981 14.1.1987 Rs.20,338.98 Per Bigha 30% 9/15% 7. FA 212/96 K.U.M.S. Vs. Dakhni Prasad Ors. 169/82 Neem Sarai 10.7.1981 18.3.1988 ₹ 10/- Per Sq. Yard 30% 9% 8. FA 313/93 K.U.M.S. Vs. Manna Lal 43/82 Neem Sarai 10.7.1981 10.5.1988 Rs.20,338.98 Per Bigha 30% 9/15% 9. FA 197/96 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heeda Bibi 11/82 Chak Maida Patti 10.7.1981 8.4.1983 ₹ 20,000/- Per Bigha 15% 6% 17. FA 389/83 K.U.M.S. Vs. Sharifunnisa 14/82 Chak Maida Patti 10.7.1981 8.4.1983 ₹ 20,000/- Per Bigha 15% 6% 18. FA 390/83 K.U.M.S. Vs. Amina Bibi 13/82 Chak Maida Patti 10.7.1981 8.4.1983 ₹ 20,000/- Per Bigha 15% 6% 19. FA 393/83 K.U.M.S. Vs. Munni Lal 16/82 Chak Maida Patti 10.7.1981 20.5.1983 ₹ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mall area of land, the Special Land Acquisition Officer made a deduction of 25% and determined the market rate @ ₹ 2400/- per bigha. In First Appeal No.1156 of 1990, which arises out of LA Case No.21 of 1981, the Reference Court considered the two awards given earlier by the Reference Court in respect of the same acquisition. These awards were rendered in LA Case No.8 of 1982 (Moti Lal Vs. State of U.P.) and LA Case No.170 of 1981 (Lala Lal Vs. State of U.P.). The claimants had placed reliance upon the award given in LA Case No.8 of 1982 in which the market rate of the land for village Chak Maida Patti was determined @ ₹ 20,000/- per bigha while the Mandi Samiti had placed reliance upon the award given in LA Case No.170 of 1981 in which the market rate of the land situated in village Mundera was determined @ ₹ 4000/- per bigha. The Reference Court proceeded to accept the market rate of the land involved in LA Case No.170 of 1981 since it related to land situated in the same village Mundera and accordingly awarded market rate @ ₹ 4000/- per bigha. However, even after having so determined the market rate of the land, it rejected the Reference by the award d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s determined @ ₹ 10/- per sq. yard. First Appeal No.219 of 1988 has been filed by the claimant for enhancement of the market rate. The Special Land Acquisition Officer in all these cases had determined the market rate of the land by the award dated 10th July, 1981 @ ₹ 20,338.98 per bigha. The Special Land Acquisition Officer noticed that out of the various sale deeds filed by the claimants as well as by the State, the sale deeds mentioned at Serial Nos. 1 to 41 related to land situated in Plot Nos.170 and 171 which were not only very near to the land under acquisition but were also of the same period and since in 19 of these sale deeds, the rate of the land was ₹ 27,118.84 per bigha, the Special Land Acquisition Officer thought it appropriate to take into consideration this rate for determining the market rate of the land under acquisition and after making a deduction of 25%, the Special Land Acquisition Officer determined the market rate of the land @ ₹ 20,338.98 per bigha. However, he further divided the land into three belts. The rate of land for the first belt was determined by the Special Land Acquisition Officer @ ₹ 20,338.98 per bigha, for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 20,000/- per bigha. In determining the aforesaid rate of ₹ 20,000/- per bigha the Reference Court relied upon the exemplar sale deed executed on 17th February, 1976 in which the market rate of the land was ₹ 2040/- per biswa or ₹ 40,800/- per bigha and after making deduction for the largeness of the area of the land under acquisition viz-a-viz the land covered by the sale deed, the Reference Court determined the market rate of the land @ ₹ 20,000/- per bigha. In First Appeal No.393 of 1983, the Reference Court determined the market rate of the land @ ₹ 15,000 per bigha. The Reference Court has placed reliance upon the award given in L.A. Case No. 8 of 1982 in the case of Moti Lal wherein the market rate of the land was awarded @ ₹ 20,000/- per bigha but has reduced the market rate to ₹ 15,000/- per bigha on account of the fact that the land covered by the award in the case of Moti Lal was better situated. In First Appeal No.(138) of 1991, the Reference Court determined the market rate of the land @ ₹ 10,000/- per bigha by award made on 1st October, 1983 on the basis of the same award of the Reference Court in LA Case No.8 of 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to three issues namely the determination of the market rate of the land, the statutory benefits available to the claimants under Sections 23 (1-A), 23(2) and 28 of the Act, and in some of the Appeals the amount for acquisition of trees and tube-wells. DETERMINATION OF MARKET RATE As would be noticed, the Reference Court determined the market rate of the land at different rates. Sri B.D. Mandhyan learned Senior Counsel appearing for the Mandi Samiti has submitted that in seven cases the Reference Court determined the market rate of the land situated in village Neem Sarai @ ₹ 20,338.98/- per bigha and in eight cases relating to village Chak Maida Patti the Reference Court determined the market rate @ ₹ 20,000/- per bigha. He made a statement during the course of his submissions as well as in the written submissions filed by the Mandi Samiti that though the First Appeals filed by the Mandi Samiti deserved to be remanded for a fresh determination of the market rate as the Mandi Samiti was not impleaded as a party in the References, yet the Mandi Samiti would have no objection if this Court were to uniformly fix the market rate of the land at ₹ 20,338.98/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se to First Appeal No. 392 of 1983, First Appeal No. 391 of 1983 and First Appeal No. 212 of 1996 respectively. The awards in L.A. Case No. 20 of 1981 (Baij Nath Vs. State of U.P.) and L.A. Case No. 22 of 1981 (Ram Narain Vs. State of U.P.) were made on the same date i.e. 31st May, 1983 while the award in L.A. Case No. 169 of 1982 was made subsequently on 18th March, 1988. In L.A. Case No. 20 of 1981 and L.A. Case No. 22 of 1981 identical reason has been given by the Reference Court for determining the market rate of the land @ ₹ 40/- per square metre and the same is as follows:- The claimant has also filed a certificate of circle rate of village Mundera obtained from Tehsildar, Chail. Photostat copy (paper no. C-45 and C-46) are on the file and the original is in the file of L.A. Reference no. 22 of 1981, and the same has been read in this case with the consent of the parties. A perusal of this document will go to show that the circle rate of the land of village Mundera in the year 1977 was between ₹ 40/- per. sq. meter and ₹ 50/- per sq. meter. The type of the land is mentioned as 'MANJHA-I'. It may be mentioned here that the land in dispute was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the other hand Sri. K.K. Dubey learned counsel appearing for the claimants in First Appeal No. 391 of 1983 and First Appeal No. 392 of 1983 has defended the determination of the market rate given by the Reference Court on the basis of the circle rate and has also contended that the Reference Court has not determined the market rate solely on the basis of the circle rate but has taken into consideration the entire evidence on the record. Sri O.P. Srivastava learned counsel for the appellant in First Appeal No. 1156 of 1990 has also contended that the market rate of the land which has been determined by the Reference Court @ ₹ 4,000/- per bigha should also be raised to ₹ 40/- per square metre. Likewise, Sri M. Islam learned counsel appearing for the claimants in First Appeal No. 219 of 1988 has contended that the market rate should be raised to ₹ 40/- per square metre. The issue, therefore, that arises for determination is whether the market rate of the land under the Act can be fixed on the basis of the circle rate determined by the Collector under the provisions of the Stamp Act and the Rules framed thereunder. It would be seen that the Indian Stamp Act, 1899 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation of the market value of such property and the proper duty payable thereon. On receipt of such opinion, he may call upon the vendor as per the rules prescribed, to pay the additional duty thereon. If the vendor is dissatisfied, he has been given the right to file an appeal and further getting reference made to the High Court for decision in that behalf. Section 47-A would thus clearly show that the exercise of the power thereunder is with reference to a particular land covered by the instrument brought for registration. When he has reasons to believe it to be undervalued, he should get verified whether the market value was truly reflected in the instrument for the purpose of stamp duty; the Collector on reference could determine the same on the basis of the prevailing market value. Section 47-A conferred no express power to the Government to determine the market value of the lands prevailing in a particular area, village, block, district or the region and to maintain Basic Valuation Register for levy of stamp duty for registration of an instrument, etc. No other statutory provision or rule having statutory force has been brought to our notice in support thereof................. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in such instrument. The circle rate does not take away the right of such person to show that the property in question is correctly valued as he gets an opportunity in case of undervaluation to prove it before the Collector after reference is made. This also marks the dividing line for the exercise of power between the registering authority and the Collector. In case the valuation in the instrument is same as recorded in the circle rate or is truly described it could be registered by the registering authority but in case it is undervalued in terms of sub-section (1) or sub-section (2), it has to be referred to and decided by he Collector. Thus, the circle rate, as aforesaid, is merely a guideline and is also indicative of a division of exercise of power between the registering authority and the Collector...... In Krishi Utapadan Mandi Samiti Vs. Bipin Kumar, (2004) 2 SCC 283: AIR 2004 SC 1850, the Supreme Court also took the view that the basic valuation register maintained for stamp duty purposes cannot be relied on while determining the market value. The Supreme Court, in Ranvir Singh Vs. Union of India, AIR 2005 SC 3467 held that the notification issued by the Union of Indi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... perty is compulsorily acquired. Similar view was also expressed by the Supreme Court in Thakur Kanta Prasad Singh (dead) by LRs. Vs. State of Bihar, AIR 1976 SC 2219. In Ravindra Narain Vs. Union of India, AIR 2003 SC 1987, the Supreme Court explained the approach to be adopted for determining the 'market value' of the acquired land: While determining the market value of the land acquired, it has to be correctly determined and paid so that there is neither unjust enrichment on the part of the acquirer nor undue deprivation on the part of the owner. The price which a willing vendor might reasonably expect to receive from the willing purchaser must be taken into consideration while at the same time disinclination of the vendor to part with his land and the urgent necessity of the purchaser to buy it must be disregarded. Potentiality of land is also to be considered based on materials as are available. The various acceptable methods for determining market value include (i) comparable sales method (ii) rent capitalization method and (iii) experts opinion. The most favoured method for fixing market value is the comparable sales method. Therefore, when there are sev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the award given in L.A. Case No. 8 of 1982 in respect of land situated in village Chak Maida Patti, wherein the market rate was determined @ ₹ 20,000/- per bigha. Thus, in all these three First Appeals namely First Appeal No. 1156 of 1990, First Appeal No.392 of 1983 and First Appeal No. 391 of 1983 the market rate can be determined @ ₹ 20,338.98/- per bigha which is the higher of the two rates and and to which, as stated earlier, learned Senior Counsel for the Mandi Samiti has no objection. In First Appeal No.1156 of 1990 Sri O.P. Srivastava learned counsel appearing for the claimant has also claimed an amount towards the acquisition of Well. Sri B.D. Mandhyan learned Senior Counsel appearing for the Mandi Samiti states that the Court may award ₹ 5,000/- for the Well as has been done in some other cases. This is acceptable to the counsel for the claimant. Thus, in addition to the market value of the land, the claimant shall also be entitled to ₹ 5,000/- for the acquisition of Well. For the same reason the market rate of the land in First Appeal No. 212 of 1996 arising out of L.A. Case No. 169 of 1982 determined by the Reference Court @ ₹ 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... addressed is about the statutory benefits under the Land Acquisition Amendment Act No.68 of 1984 by which Section 23(1-A) was inserted and the rate of solatium under Section 23(2) and the rate of interest under Section 28 were enhanced. The amended Sections 23(1-A), 23(2) and 28 are as follows:- 23(1-A). 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 centum 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 the award of 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. 23(2) In addition to the market value of the land, as above provided, the Court shall in every case award a sum of thirty per centum on such market value, in consideration of the compulsory nature ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esaid provisions have come up for interpretation before the Supreme Court in a number of decisions. A Constitution Bench of the Supreme Court in Union of India Anr. Vs. Raghubir Singh (dead) by LRs. etc., AIR 1989 SC 1933 examined Section 30 of the aforesaid Transitional provision contained in Amendment Act No.68 of 1984 for the purpose of payment of solatium at the amended higher rate and observed:- ................ In other words S. 30(2) of the Amendment Act extends the benefits of the enhanced solatium to cases where the award by the Collector or by the Court is made between 30 April, 1982 and 24 September, 1984 or to appeals against such awards decided by the High Court and the Supreme Court whether the decisions of the High Court or the Supreme Court are rendered before 24 September, 1984 or after that date. All that is material is that the award by the Collector or by the Court should have been made between 30 April, 1982 and 24 September, 1984. ............ ......... We think that what Parliament intends to say is that the benefit of S. 30(2) will be available to an award by the Collector or the Court made between the aforesaid two dates or to an appellate orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fter referred to as ''the amending Act') is to be ordered in every case where the reference was pending before the reference Court on the date of commencement of the amending Act even though the award of the Collector was made prior to 30-4-1982. ....................................... For the reasons aforementioned it must be concluded that in respect of acquisition proceedings initiated prior to date of commencement of the amending Act the payment of the additional amount payable under Section 23(1-A) of the Act will be restricted to matters referred to in clauses (a) and (b) of sub-section(1) of Section 30 of the amending Act. Zora Singh insofar as it holds that the said amount is payable in all cases where the reference was pending before the reference Court on 24-9-1984, irrespective of the date on which the award was made by the Collector, does not lay down the correct law. In respect of the amount of solatium under Section 23(2) and the interest under Section 28 of the Act, the Supreme Court in K.S. Paripoornan (II) Vs. State of Kerala Ors., (1995) 1 SCC 367 observed:- This Court thereby clearly held that even in the pending reference made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Amending Act 68 of 1984. However, recently in Smt. Leelawati Agarwal Vs. State of Jharkhand Anr., 2008 AIR SCW 2723 the Supreme Court has referred the matter to a larger Bench to consider the correctness of the view expressed in paragraph 4 in Paripurnan II's case (supra) that a restricted interpretation should not be given, in the face of what was stated in paragraph 34 of Raghubir Singh's case (supra). In this case the award of the Collector was made on 6.4.1972 and the Reference Court gave the award on 30.9.1985. The High Court, in view of the decision of the Supreme Court in K.S. Paripurnan (I), denied the benefit under Section 23(1-A), 23(2) and Section 28. It was urged before the Supreme Court by the claimant that in view of the decisions of the Supreme Court in Raghubir Singh (supra) and K.S. Paripurnan (II), the benefit under Section 23(1-A) may not be available, but the benefit under Section 23(2) and Section 28 of the Act was available. The Supreme Court observed:- In Raghubir Singh's case (supra) two terminus points were fixed i.e. Award by the Collector or decision of the reference Court must have been taken between 30.4.1982 and 24.9.1984. It has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y irrelevant. This issue was also examined by the Supreme Court in Shri Narain Das Jain (since deceased) by Lrs. Vs. The Agra Nagar Mahapalika, Agra, JT 1991 (1) SC 461 and the relevant observations are as follows:- The importance of the award of solatium cannot be undermined by any procedural blocades. It follows automatically the market value of the land acquired, as a shadow would to a man. It springs up spontaneously as a part of the statutory growth on the determination and emergence of market value of the land acquired. It follows as a matter of course without any impediment. That it falls to be awarded by the Court in every case leaves no discretion with the Court in not awarding it in some cases and awarding in others. Since the award of solatium is in consideration of the compulsory nature of acquisition, it is a hanging mandate for the court to award and supply the omission at any stage where the Court gets occasion to amend or rectify. This is the spirit of the provision, wherever made. ............... We do not appreciate the distinction made by the High Court in this regard. The appellant had all the same not pleaded for grant of solatium in the gro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... latium and interest under Sections 23(2) and 28 of the Act. The claimant(s) would, however, not be entitled to the benefit of Section 23(1-A) of the Act. First Appeal No.364 of 1998, First Appeal No.1163 of 1988, First Appeal No.771 of 1989, First Appeal No.313 of 1993, First Appeal No.197 of 1996 and First Appeal No.126 of 1991 are dismissed. First Appeal No.207 of 1996 is allowed to the extent that the claimant(s) would not be entitled to the benefit of Section 23(1-A) of the Act. First Appeal No. 212 of 1996 is allowed to the extent that the market rate of the land is reduced to ₹ 20,338.98 per bigha. First Appeal No.219 of 1988 is allowed to the extent that the claimant(s) would be entitled for the amount of ₹ 10,000/- for the acquisition of tubewell and ₹ 5000/- for the acquisition of orchard i.e. ₹ 15,000/- over and above the market value of the land awarded by the Reference Court. On this amount the claimant(s) would also be entitled to the benefit of Amending Act 68 of 1984 for calculating the solatium and interest under Sections 23(2) and 28 of the Act. The claimant(s) would, however, not be entitled to the benefit of Section 23(1-A) of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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