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Hukam Chand Jain v/s U.O.I

    Rfa No. 132 of 1968 Connected With Rfa Nos. 184 of 74, 551 of 69, 388 of 70, 123 of 68, 440 of 72, 569 of 69; Rfa No. 444 of 1972

    Decided On, 28 September 1990

    At, High Court of Delhi

    By, THE HONOURABLE MR. JUSTICE S.B. WAD & THE HONOURABLE MS. JUSTICE USHA MEHRA

    For the Appearing Parties : C.L. Verma, B.S. Mathur, Advocates.



Judgment Text

USHA MEHRA, J.


Pursuant to a Notification dated November 13, 1959 under Section 4 of the Land Acquisition Act (hereinafter called the Act'), the appellant's land was acquired by the respondent-Union of India. The land was situated in Village Nimiri admeasuring 16 bighas and 8 biswas bearing Khasra No. 128. Notification under Section 4 and 6 was issued in respect of the entire land falling in Khasra No. 128, measuring 258 bighas and 6 biswas. Land Acquisition Collector made the Award on 28th February, 1962. He awarded compensation @ Rs. 2, 500 per bigha, for the land falling in Block 'A' which was in two parts, with garden, and without garden. The land with garden was awarded compensation @ Rs 3, 000 per bigha., the land without garden @ Rs. 2, 500 per bigha. For land falling in Block 'B' without garden it was @ Rs. 2, 000 per bigha and the land with garden @ Rs. 2, 500 per bigha. Besides this, the appellant had also represented before the Collector that he had got a house constructed on a portion measuring 3 bighas and 3 biswas. He had no other house to live, therefore, the same should not be acquired. The Collector, accordingly left out of acquisition 3 bighas and 3 biswas of land on which the house was constructed and awarded compensation regarding remaining land measuring 13 bighas and 5 biswas.


2. Being aggrieved with the award of the Collector, application was moved by the appellant on 16th April, 1962, in pursuance to which a reference was made under Section 18 of the Act. This reference was contested by the respondent mainly on the ground that the award was based on a fair and reasonable basis. The learned Additional District Judge came to the conclusion that the market value of the land on the relevant date was Rs. 4, 500 per bigha and he enhanced the compensation awarded by the Collector Rs. 15

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per bigha in addition to the amount already awarded by the Collector for the entire land measuring 13 bighas and 5 biswas and also awarded solatium and interest @ 6% per annum.


3. The appellant has not been satisfied with the enhanced compensation ordered by the learned Additional District Judge and has come up in appeal before this Court.


4. The learned Additional District Judge and for that matter Land Acquisition Collector had expressed the view that the land of the appellant has good potential value as building sites. The land falling in Block 'A' was situated near Bharat Nagar Colony in between Municipal Quarters and Najafgarh drain, that on one side, the said land touched the area of Village Chowkri Mubarakabad and on the other Sadhora Kalan. As far as land falling in Block 'B' is concerned, it consisted of an area on the Northern side, of the Municipal Quarters and touched on one side, area of Wazirpur and on other Chowkri Mubarakabad. From the order of the Collector as well as of the learned Additional District Judge, it is clear that all the factors indicated good potential value of the land namely location of the land, adoptability advantageous, lucrative way, as well as chances of being building site. All these factors are in favour of the appellant.


5. The appellant contended that the sale certificate and the instances cited by him have been brushed aside by the learned Addl. District Judge without any reasons. The learned Additional District Judge instead placed reliance on the sale certificate produced by respondent as Ex. R-l which by no stretch of imagination could be given any weight age for arriving at correct market value of the land in question. Ex. R-l shows the value of the land @ Rs. 2, 400 per bigha. The said land was sold by Rehabilitation Department. It was in the occupancy of the tenants who could not be ejected. Since the land was in occupancy of the tenants, therefore, its true market value could not be obtained. The Government sold only ownership right but physical possession could never be handed-over. Therefore, that sale certificate cannot be the true basis of arriving at actual market value. The counsel for the appellant in this regard drew our attention to the affidavit of Shri Trilok Chand Jain.


6. The counsel for the appellant then contended that he had placed on record sale certificates Ex. A-11 and Ex. A-12 The land which was involved in the case of Ex. A-11 was also situated in Village Neemri and the land in Ex. A-12 was in Sadhora Kalan. Their Notification under Section 4 of the Land Acquisition Act were issued at the relevant time as that of the appellant's. The land of the appellant is stated to be quite near to the land subject matter of award in Ex. A-11 and Ex. A-12. This fact was accepted by the learned Additional District Judge when he observed that the land in question was near the land which was subject matter of judgment, in Ex. A-11. The learned Additional District Judge, even after relying to Ex. A-11 and Ex. A-12, reduced the amount of compensation arbitrarily. It was further contended by the learned counsel for appellant that this court has already enhanced the compensation in other cases falling in village Chowkri Mubarakabad and Neemri to Rs. 10, 000 and more per bigha.


7. The counsel for the appellant has placed reliance on the decision of this court in R.F.A. No. 300/77 in the case of Union of India v. Sat Narain and Anr. In that case land was situated in village Chowkri Mubarakabad. This court enhanced the amount of compensation to Rs. 10, 000 per bigha.


8. In R.F.A. 91/69 and R.F.A. 92/69 decided on 20th December, 1984 in the case of Chattar Singh v. Union of India this court while dealing with the acquisition of land of the said appellant falling in Village Neemri, which was also acquired pursuant to Notification dated 13th November, 1959 under Section 4 of the Land Acquisition Act. It appears that Chattar Singh's land also acquired by the same Notification as that of the present appellant and it was against the same award and the judgment by the same Additional District Judge that Chattar Singh came up in appeal. The Division Bench of this Court after taking all the facts and circumstances into consideration enhanced the compensation of Chattar Singh to Rs. 11, 000 and Rs. 10, 000 per bigha of the land falling in block 'A' and block 'B' respectively. It was further observed that this was consistent with the comparable judgments of Sadhora Kalan and Chowkri Mubarakabad.


9. So far as fixing of the price is concerned, we are of the view that the Judgment in R.F.A. Nos. 91 and 92 of 1969 in the case of Chattar Singh v. Union of India would squarely apply to the facts of this case as it pertains to the same Notification as well as Award.


10. But there is one more question raised at the bar which needs to be considered in this case-whether the benefit of Section 23(2) as amended by the Amending Act, 1984 can be given to the appellant? Appellant has not based his claim in appeal on the basis of amending Act, and rightly so because when he filed the appeal Act had not been amended. Now since Act has been amended and appeal is still pending therefore its benefit has been claimed by the appellant at the Bar. If the amending Act can be made applicable retrospectively in this case then to our mind this oral request can also be considered. Hence, real question for determination is whether the Amending Act 68 of 1984 has retrospective operation and owners of land are entitled to solatium or interest at the enhanced rate in the context of the Amending Act in respect of pending matters?


11. Before determining this question one has to keep in mind that with the enormous expansion of State's role in promoting public welfare and economic development, acquisition of land for such purpose has become far more numerous. A balance has to be struck between promotion of public purpose and that of the individual whose land has been acquired. The individual and institutions who are unavoidably to be deprived of their property rights in land need to be adequately compensation for the loss keeping in view the sacrifice they make for the larger interests of the community. The pendency of acquisition proceedings for long periods often causes hardship to the affected parties and renders unrealistic the scale of compensation offered to them.


12. Therefore, keeping in view the above objective the legislature brought about amendment in the Principal Act of 1894. The proposal for amendment were formulated and a bill for this purpose was introduced in the Lok Sabha on 30th April, 1982 and the Act came into force on 30th September, 1984.


13. The Section 23(2) of the Principal Act provided solatium at 15% on the market value, and after the amendment, the solatium was raised to 30% on the market value. Section 23(2) as amended reads:


"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 of the acquisition."


14. Various provisions of the amending Act 68 of 1984 came up for consideration before the Constitution Bench of the Supreme Court in the matter of Union of India v. Raghubir Singh reported in 1989 (178) ITR 548, 1989 (2) SCC 754, 1989 AIR(SC) 1933, 1989 (74) STC 313, 1989 (3) SCR 316, 1989 (2) JT 427, 1989 (1) SCALE 1337, 1989 (66) CC 466, 1989 (2) CCC 460, 1989 (75) FJR 100, 1990 (87) CTR 186, 1989 (11) ATC 391, 1989 LIC 2024, 1989 SCC(L&S) 511, 1989 (2) UJ 447, 1989 SCC(L&S) 511, 1989 SCC(L&S) 511, 1990 (87) CTR(SC) 186, 1989 (1) Supp(SCC) 574, 1989 SCC(L&S) 511, 1989 SCC(L&S) 511, 1989 SCC(L&S) 511, 1989 SCC(L&S) 511, 1989 SCC(L&S) 511, 1989 SCC(L&S) 511. In that case Supreme Court reconsidered its earlier judgment in Bhag Singh and Others v. Union Territory of Chandigarh reported in 1985 AIR(SC) 1576, 1986 (1) CCC 91, 1985 (2) Scale 246, 1985 (3) SCC 737, 1985 (S2) SCR 949, 1985 UJ 910 and overruled the same. In that case Court observed that the benefit of Section 30(2) will be available to an award of the Collector or the Court made between 30th April, 1982 and 24th September, 1984 or to an appellate order of the High Court or of the Supreme Court which arises out of an award of the Collector or the Court made between the said two dates. It was further observed that if the proceeding has terminated with the award of the Collector or of the Court made between the aforesaid two dates, the benefit of Section 30(2) will be applied to such award made between the aforesaid two dates. If the proceedings has passed to the stage of appeal before the High Court or the Supreme Court, it is at that stage when the benefit of Section 30(2) will be applied. But in every case the award of the Collector or of the Court must have been between 30th April, 1982 and 24th September, 1984.


15. The matter regarding entitlement of higher solatium to cases pending as on the date of commencement of the Amending Act particularly with reference to Section 23(1-A), 23(2), 30(2) and Section 28 again came up for consideration before the Supreme Court in the case of Union of India & Others v. Filip Tiago De Gama of Vedem Vasco De Gama reported in A.I.R. 1990 page 981 when the Supreme Court observed:


"The submission that Section 23(2) by itself has no retrospective operation seems to be justified. It is significant to note that S. 23(2) forms part of a scheme of determining compensation for land acquired under the Act. It provides 30 per cent solatium on the market value of the land in consideration of the compulsory nature of the acquisition. It thus operates on the market value of the land acquired. The market value of the land is required to be determined at the date of publication of the notification under Section 4(1). It cannot be determined with reference to any other date. That has been expressly provided for under Section 23(1) of the Act. In the instant case, S. 4(1) notification was published on 20 October, 1967. The Amending Act 68 of 1984 came into force on 24th September, 1984. The amended S. 23(2) by itself is not retrospective in operation. It cannot proprio vigore apply to awards in respect of acquisition proceedings commenced prior to 24 September, 1984. If therefore, Section 30(2) does not cover the present case, then amended S. 23(2) has no part to play.


This in effect is the result of the plain meaning rule of interpreting S. 30(2) of the Amending Act 68 of 1984. But then, it would seem very odd indeed and anomalous too to exclude the present case from the operation of S. 30(2). S. 30(2) is the Transitional Provisions. The purpose of incorporating Transitional Provisions in any Act or amendment is to clarify as to when and how the operative parts of the enactments are to take effect. The Transitional Provisions generally are intended to take care of the events during the period of transition. Section 30(2) provides that amended provisions of S. 23(2) shall apply, and shall be deemed to have applied, also to, and in relation to, any award made by the collector or Court between 30 April, 1982 and 24 September, 1984, or to an appellate order there from passed by the High Court or Supreme Court. The purpose of these provisions seems to be that the awards made in that interregnum must get higher solatium in as much as to awards made subsequent to 24 September, 1984. Perhaps it was thought that awards made after the commencement of the Amending Act 68 of 1984 would be taken care of by the amended S. 23(2). The case like the present one seems to have escaped attention by innocent lack of due care in the drafting. The result would be an obvious anomaly. The legislators do not always deal with specific controversies which the Courts decide. They incorporate general purpose behind the statutory words and it is for the court to decide specific cases."


16. Each case has to be decided on its own merits. The fact of pendency of the reference even after the coming into force was taken into consideration by the Supreme Court in Filip Tiago De Gama's case and to that extent the provision of Section 23(2) read with Section 30(2) were made applicable.


17. It is not disputed before us and for that matter it cannot be disputed that the proceedings in the instant case were pending on 30th April, 1982 i.e. on the date of commencement of the Amending Act. In the instant case the notification under Section 4 of the Act was issued on 30th November, 1959. The award was declared on 28th February, 1962 by the Land Acquisition Collector. The reference was answered by the learned Additional District Judge vide his judgment dated 3rd February, 1968. The appeal was filed in the High Court on 13th May, 1968.


18. Since appeal which is a continuation of proceedings was pending as on the date of commencement of the amending Act hence appellant would be entitled to higher solatium.


19. From the foregoing discussion it is apparent that the provision of the Amended Section 23(2) shall apply to this extent retrospectively if the proceeding in the Court and for that matter in the High Court were pending between those two dates. Section 30(2) reads:


"The provisions of sub-section (2) of section 23 and section 28 of the principal Act, as amended by clause (b) of section 15 and section 18 of this Act respectively, shall apply, and shall be deemed to have applied, also to, and in relation to, any award made by the Collector or Court or to any order passed by the High Court or Supreme Court in appeal against any such award under the provisions of the principal Act after the 30th day of April, 1982 (the date of introduction of the Land Acquisition (Amendment) Act, 1982, in the House of the People) and before the commencement of this Act."


20. The benefit of higher solatium is available to such a appellant. For all intents and purposes the proceedings were pending before this Court. The title of the Collector on the land had not been established till the disposal of the appeal before the High Court. The statutory provision for filing of appeal are envisaged under Section 54 of the Act which reads:


"Subject to the provisions of the Code of Civil Procedure, 1908 (5 of 1908), applicable to appeals from original decrees, and notwithstanding anything to the contrary in any enactment for the time being in force, an appeal shall only lie in any proceedings under this Act to the High Court from the award, or from an part of the award, of the Court and from any decree of the High Court passed on such appeal as aforesaid an appeal shall lie to the Supreme Court subject to the provisions contained in Section 110 of the Code of Civil Procedure, 1908, and in Order XLV thereof".


21. A bare reading of this Section shows that the award is not final till the appeal is determined. The appeal is a continuous process of the proceedings initiated and would culminate only after appeal is decided in the higher court. Thus under Section 23(2) read with Section 30(2) of the Act, the benefit of higher solatium, the appellant would be entitled. Finality to the award had not been given before 30th April, 1982. Therefore, relying on the decision of Union of India v. Filip Tiago De Gama we hold that the appellant in this case shall be entitled to higher solatium at the rate of 30%.


22. Accordingly, we direct that the appellant shall be entitled to further enhanced compensation at the rate of Rs. 10, 000 per bigha for whole of his land instead of what is awarded by the Land Acquisition Collector or Additional District Judge. He would be entitled to solatium of 30 per cent including the solatium already awarded. Furthermore, the appellant shall be entitled to interest at the rate of 9 per cent per annum for a period of one year from the date of possession and thereafter at the rate of 15 per cent per annum till payment on the excess amount that is the amount which was increased by the Additional District Judge and now by this Court because that is the excess in terms of Section 28 of the Act as Amended. However, in view of the Supreme Court decision in Union of India v. Filip Tiago De Gama the appellant will not be entitled to an additional amount at the rate of 12 per cent per annum on the market value in terms of Section 23(1A) as Amended. Appellant shall also be entitled to proportionate costs
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