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State of U.P v/s Mohd Bashir Khan & Others

    First Appeal No. 30 of 1981

    Decided On, 24 February 2014

    At, High Court Of Judicature At Allahabad Lucknow Bench

    By, THE HONOURABLE MR. JUSTICE SATISH CHANDRA & THE HONOURABLE MR. JUSTICE RAJIV SHARMA

    For the Appearing Parties: ------.



Judgment Text

1. At the outset it is relevant to point out that during pendency of the instant appeal, respondents arrayed in the appeal died and as such it is imperative to give details of it. Respondent No. 3-Ashir Khan died on 19.1.1983 during pendency of the instant appeal and as such an application was moved to bring the legal heirs of deceased, namely, Smt. Zaitoon Begum in place of deceased respondent. Thereafter an application for substitution of Smt. Zubaida Khatoon and Smt. Kamrul Nisa as heirs of respondent No. 3 (deceased Ashir Khan) in addition to his widow Zaitoon Begum was moved, which was allowed vide order dated 8.8.2013. Smt. Musara Bibi-respondent No. 4 died during pendency of the appeal. Respondent No. 1-Bashir Khan also died on 11.7.2005 survived by Smt. Zubaida Khatoon (daughter) and Smt. Khatoon Bibi widow of Bashir Khan. Bibi Khatoon wife of Bashir Khan also died on 11.12.2007 survived by said daughter Zubaida Khatoon.

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2. Heard learned Counsel for the parties.

3. Plot Nos. 220M, 221M and 223M area 1-11-7 as well as plot Nos. 177 to 187 situated in village Chawni, Civil Lines, Sultanpur were leased out through a lease deed dated 19.1.1944 to the respondents for construction of the building for a period of 90 years, which were renewable after 30 years each. As per the lease deed, the lessee was given a right of transfer and the lease was also heritable.

4. The aforesaid plots were acquired by the State Government and the Land Acquisition Officer made an Award on 3.4.1979 holding that the lessees are not entitled to receive any compensation as no renewal of the lease was made after 1975. The lessees (opposite parties), Mohd. Basheer Khan alongwith Mohd. Naseer Khan, respondent No. 1, 2/1 to 2/6, 3/1, 4 and 5 filed a reference before the Collector, Sultanpur which was referred by the Collector vide order dated 22.8.1979 to the District Judge, Sultanpur for deciding the reference u/s 18 of the Land Acquisition Act.

5. The learned District Judge allowed the Reference and awarded a sum of Rs. 7,45,325/- as compensation vide its judgment and order dated 3.2.1981, which has been assailed by the appellants u/s 54 of the Land Acquisition Act by filing the instant First Appeal.

6. It has been contended by the learned Counsel for the appellant that the land was given to the respondents on lease and there was no renewal of lease in accordance with the terms and condition of the lease and as such the Court below erred in holding that the lease stood renewed after the expiry of 30 years period. Moreover, the compensation has been awarded at the rate of Rs. 4500/- per biswa for some plots while Rs. 3500/- for certain other plots is too high. The Court below also erred in not considering the fact that the possession of the disputed land was taken on 10.4.1979 in pursuance of the Award and the Court below erred in awarding interest @ 6% per annum with effect from from 28.2.1978.

7. Refuting the allegation of the appellants, Counsel for the respondents submitted that on the land in question a huge bungalow was situated, which had been acquired maliciously at the instance of the Collector, Sultanpur with whom the answering respondents had a very long litigation in respect of the arrears of rent and damages which the Collector, Sultanpur lost upto the stage of the High Court and at his instance, the land in question and the building had been requisitioned without payment of any compensation by the land Acquisition Officer. All these facts have been well considered by the learned District Judge in his impugned judgment. It has also been added that the Land Acquisition Officer got the compensation assessed from the Tehsildar Sadar, Sultanpur and he after going through the several sale-deeds in respect of the land of the locality assessed the compensation amounting to Rs. 8,54,550/-. The bungalow, which was existing over the said land had been assessed to an amount of Rs. 73,300/-.

8. Clarifying the position, learned Counsel for the contesting respondents submitted that the land in question was taken on lease by two different leases. The first lease was granted in the year 1915 and the second in the year 1944. These leases were for building purposes for a period of 90 years, to be renewed after 30 years. After a period of 30 years, they had been actually renewed and thereafter again after this period, the respondent had applied for renewal of their respective leases, which had to be renewed according to the terms and conditions of the leases. Further, the amount of compensation be enhanced by exercising the power under Order 41 Rule 33 CPC at the present market value of the land acquired.

9. There is no dispute to the fact that the land in question was given on lease to the predecessor in interest for a period of 90 years, renewable after 30 years each. As per lease deed the lessee was given a right of transfer and the lease also heritable. The aforesaid land including the building was acquired by the State Government and the Land Acquisition Officer made an Award on 3.4.1979 holding that the lessees are not entitled to receive any compensation as no renewal of the lease was made after 1975. The opposite parties (deceased) Mohd. Basheer Khan alongwith Mohd. Naseer Khan [respondent No. 1, 2/1 to 2/6, 3/1, 4 and 5] filed a reference before the Collector, Sultanpur, which was referred by the Collector vide order dated 22.8.1979 to the District Judge, Sultanpur for deciding the reference u/s 18 of the Land Acquisition Act.

10. The District Judge, Sultanpur after careful examination of the entire evidence on record and framing necessary issues held that notification u/s 4 of the Land Acquisition Act was published on 23.2.1975 and the possession over the land was taken on 28.2.1978 u/s 17 of the Act. It was also held that at the time of issue of notification u/s 4, the lessees were in possession of the land in question. Moreover, the rights of a lessee did not extinguish automatically in view of Section 116 of the Transfer of Property Act unless the lease deed is cancelled after giving due notice strictly in accordance with law.

11. As regard the compensation, the Land Acquisition Officer had erred in law in not awarding the compensation to the lessees and the Land Acquisition Officer while determining the compensation in respect to the land acquired could not look into the fact as to whether the lessees had violated any terms and conditions of the lease. The District Judge accordingly determined the compensation and awarded interest @ 6% per annum from the date of taking possession of the land in question.

12. Hon'ble Supreme Court in the case of M/s. Printers House Pvt. Ltd. Vs. Mst. Saiyadan (Deceased) by L. Rs., and others, , and P. Ram Reddy and Others Vs. Land Acquisition Officer, Hyderabad Urban Development Authority, Hyderabad and Others, , has discussed the principles on the basis of which the market value has to be determined. It is now settled law that the building potentiality of the acquired land existing on the date of notification under Sub-section (1) of Section 4 of the Land Acquisition Act, is the correct market value of the acquired property, which has to be judged on consideration of various factors and materials which are brought on record and such building potentiality is not only to be judged merely on the basis of its existing value but also after taking into consideration the future advantages.

13. It is important to note that some factors, which are relevant for determination of the amount of compensation, are the nature and quality of land, whether irrigated or unirrigated, facilities for irrigation, presence of fruit bearing trees, location of the land, closeness to any road or highway, evenness of the land, existence of any building or structure and a host of other factors bearing on the valuation of the land. The learned District Judge while determining the market value of the acquired land in his impugned order has considered all these relevant factors and recorded a finding of fact that the land in question situates at Civil Line, Sultanpur on the Allahabad-Faizabad State Highway. Thus, it is wrong to say that compensation awarded by the Court below is excessive as alleged by the appellants.

14. In view of the above discussions, the findings recorded by the Court below cannot be said to be either perverse or erroneous rather the same are based on sound and cogent reasons based on various decisions of the Apex Court, referred to in the impugned judgment. Consequently, the instant appeal is dismissed and the order of the Court below is approved. All the miscellaneous applications also stand disposed of accordingly. It may be pointed out that vide order dated 18.8.1981, this Court ordered that the appellant will deposit the entire decretal amount in the trial Court. Out of the amount so deposited, the respondents shall be allowed to withdraw Rs. 3 lacs on furnishing adequate security to the satisfaction of the District Judge, Sultanpur. The remaining amount shall be invested in interest bearing security. The interest accrued on the security shall be payable to the successful party. Therefore, we direct that the unpaid amount together interest shall be released in favour of the respondents within two months. The security, if given earlier in any form shall also stand discharged.
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