BHOPENDRA SINGH Vs. AWAS VIKAS PARISHAD

JUDGEMENT

(1.) THIS appeal, preferred under Section 54 of Land Acquisition Act, 1894, is directed against the judgment/award dated 19 -8 -2002 passed by the learned Additional District Judge/First Fast Track Court, Nainital, whereby the market value of the land in question has been assessed at Rs. 17,400/ - and 30% solatium thereon and 12% interest has also been directed to paid.

(2.) BRIEF facts of the case are that 16.38 acres of land was acquired in Village -Ujjain, Tehsil -Kashipur for U.P. Housing and Development Board. For that purpose notification under Section 28 of U.P. Housing and Development Board Act was issued on 11 -1 -1975. The follow up notification under Section 32 of the said Act was issued on 3 -4 -1976 and possession was taken of the land on 15 -5 -1976. The Appellants were not given any amount of compensation by the Special Land Acquisition Officer probably on the ground that they are not owners of land, though their land in plot No. 126 -C measuring 30 acre and that of plot No. 127 -C measuring 30 acre was also included in the aforesaid acquired land. It appears that initially the present Appellants filed a petition before the Allahabad High Court which was disposed of on 09 -02 -1987 and against the said order the Appellants knocked to the doors of the Apex Court. From where it was directed that since the aforesaid land has been acquired as such if they make an application before the Collector the same shall be referred under Section 18 of the Land Acquisition Act, 1894, to the District Judge, Nainital. Accordingly, on the request of the Appellants the collector made the reference, which was registered as Land Acquisition Reference Case No. 3 of 1997. After recording the evidence of the parties and hearing them the impugned judgement/award was given by the learned Additional District Judge against which this first appeal has been preferred. The claim of the Appellant was contested before the reference court by the Respondents on the ground that land total measuring 60 acres of plot No. 126 -C and 127 -C in fact belonged to Gaon Samaj and Appellants were only recorded as occupants under class -3. As such the learned reference court was required not only to give its finding on the market value of the land in question but also as to the rights of the Appellants over the said land. In view of the observations and directions of the Apex Court and the High Court passed in the writ petition No. 1001 of 1995, after recording the evidence of witnesses produced on behalf of the parties and perusing form -45 prepared under U.P. Consolidation of Holdings Act, the reference court held that the Appellants were occupants as 'asaamee' in the plot No. 126 -C and 127 -C total measuring 60 acres. The said court after considering the claim of the parties as to the market value of the land assessed it at Rs. 6/ - per square feet and directed that amount of compensation be paid to the tune of Rs. 17,400/ - for area measuring 6 acre (i.e. 2900 sq. yard) with 30% solatium and 12% interest there on from 15 -5 -1976. Aggrieved by which this appeal has been filed by the claimants for enhancement of amount of compensation. (It appears that learned reference court committed clerical error in multiplying unit of 'Sq. feet' with 'Sq. yard').

(3.) LEARNED reference court has assessed the market value of similar land @ of Rs. 6/ - per square feet on the ground that other land of the same area which was acquired with land in question was also valued at the said rate by the Special Land Acquisition Officer. However, learned Counsel for the Appellants argued that the land in question is adjoining to the main road unlike the land which was taken in to consideration by the reference court. It is further argued that the land in question should not have been valued less than Rs. 50/ - Square feet. On perusal of the oral evidence adduced by the parties we found that P.W. -1 Smt. Raj Dulari has stated that in the year 1976 value of land in question was Rs. 50/ - per square feet. P.W. -2 Arvind Singh, P.W. -3 Ranvir Singh and P.W. -4 Harpal Singh have also made the similar statements. But in the matters of Land Acquisition best way to assess the market value is to examine the value in the light of price paid by the purchaser of similar land in the neighbourhood of the land in question. Such Transaction if nearer the date of notification of acquisition, facilitates the court to assess the more accurate market value of the land. However in the present case none of the above witnesses have adduced any evidence as to the exemplar sale deed pertaining to the near by similar land. In absence of such sale, deeds we are compelled to see the valuation of the surrounding land made by the Collector Nainital under Rule 340 -A of the U.P. Stamp (first amendment) Rules, 1976. Paper No. 44 -C/1 is copy of the Circle rate showing market value assessed by the Collector for the purposes of registration of instrument of sale. The said documents shows that the circle rate of the land in question for imposing the stamp duty over the documents is Rs. 95/ - to Rs. 135/ - per sq. meter as market value of the land adjoining to road and Rs. 67/ - to Rs. 80/ - per sq. meter for the land away from the road. From the evidence on record it is clear that the land in question was near the main road. As such the market value as per the circle rate was treated for the purpose of realising stamp duty not less than Rs. 95/ - per sq. meter. It would be injustice to the owner of land if for realising the stamp duty we apply the circle rate and deny at -least the said rate in making payment of compensation on acquisition of his land. The total area of the land in question is 2900 sq. yard. The learned reference court has erred in law by multiplying the rate mentioned per sq, feet with area in terms of sq. yard. That is why due to miscalculation the amount has been stuck at meager Rs. 17,400/ -. Area measuring 0.6 acre is equal to 2900 Sq, yard which is equal to 2397 sq. meter. If we assess the market value relying on the circle rate it would be Rs. 95/ - per sq. meter, the market value of the land in the year 1976 comes out to be Rs. 95/ - Ã - 2397.80 sq. meters = 2,27,791/ -.