GAURI SHANKER MISRA Vs. COLLECTOR

JUDGEMENT

(1.) This First Appeal by 29 persons, who are fixed rate tenants, under Section 19 (1) (f) of the Defence of India Act, 1939 (hereinafter referred to as the Act) has been filed against the award made by Sri S. Malik, District Judge, Varanasi on 4th July, 1959, in the capacity of an arbitrator.

(2.) The Central Government acquired land for building Babatpur aerodrome near Varanasi. In all 500 acres of land was acquired. The present dispute is in relation to 48.01 acres. The Zamindar of the land in dispute is the Maharaja of Banaras. There are also sub-tenants in some plots. Neither the Maharaja of Banaras nor the subtenants were parties to the proceedings before the arbitrator nor are they before us in appeal. The land was acquired under the provisions of Rule 75-A of the Rules framed under the Act (hereinafter referred to as the Rules). Section 19 of the Act provides that "whereby or under any rule made under this Act, any action is taken of the nature described in Sub-section (2) of Section 299 of the Government of India Act, 1935, there shall be paid compensation, the amount of which shall be determined in the manner, and in accordance with the principles hereinafter set out, that is to say ...." Clause (2) of Section 299 of the Government of India Act, 1935 (hereinafter referred to as the 1935 Act) provides: "(2) Neither (he Federal nor a Provincial Legislature shall have power to make any law authorising the compulsory acquisition for public purposes of any land or any commercial or industrial undertaking, or any interest in or in any company owning, any commercial or industrial undertaking, unless the law provides for the payment of compensation for the property acquired and either fixes the amount of the compensation or specifies the principles on which, and the manner in which, it is to be determined." The provisions of the Act are obviously subject to the provisions of the 1935 Act because the latter is the Constitution Act. There is no provision in the Act or the Rules relating to the manner in which compensation shall be fixed or shall be offered or paid to the person whose land or interest is being acquired. Provisions relating to the same are to be found in the U. P. Defence of India (Compensation and Arbitration) Rules, 1943 (hereinafter referred to as the U. P. Rules). These Rules have been framed "in exercise of the powers conferred by Sub-section (2) of Section 19 of the Defence of India Act, 1939 (Act XXXV of 1939), read with the Government of India Defence De- partment Notification No. 1365-O.R/42, dated September 19, 1942". Rules 3, 4 and 5 of the U. P. Rules, which are relevant for our purposes, are re produced below: "3. Determination of compensation.--When any immovable property is requisitioned or permanently acquired under the provisions of the Defence of India Act and the Rules made thereunder by or on behalf of the Provincial Government or by an officer Of the Provincial Government on behalf of the Central Government and the circumstances are such as to render the provisions of Section 19 (1) of the Act applicable, the Collector of the district in which such property is situate shall, in accordance with the instructions issued from time to time by the Provincial and the Central Government, determine the amount of compensation paid for the property and shall also apportion it, where necessary, among all the persons known or believed to be interested in the property, of whom or of whose claim to compensation he has information. "4. Communication of the amount of compensation to the person interested.--The Collector shall communicate to the person interested an offer of the amount of compensation determined by him under Rule 3. "5. Payment of compensation where agreement is reached.--Where the offer of the amount oi compensation under Rule 4 is accepted the Collector shall enter into an agreement with the person interested and pay the amount agreed upon." In the present case, the appellants did not accept the offer of compensation made to them by the Collector. Clause (a) of Section 19 (1) of the Act provides that "Where the amount of the compensation can be fixed by agreement, it shall be paid in accordance with such agreement" and Clause (b) of the same section provides that "where no such agreement can be reached, the Central Government shall appoint as an arbitrator a person qualified under Sub-section (3) of Section 226 of the above-mentioned Act for appointment as a Judge of a High Court." Inasmuch as there was no agreement between the parties with regard to the amount of compensation, the Central Government appointed Sri S, Malik, the then District Judge, Varanasi as the arbitrator who determined the compensation payable to the appellants.

(3.) Before the District Judge two kinds of evidence was produced; one consisted of sale deeds in respect of neighbouring plots and the other of the oral statements of witnesses and some records prepared by Jwala Prasad, Naib Tahsildar. The learned arbitrator was of the opinion that the copies of sale deeds filed in the case could not provide a good examplar and consequently did not rely upon them. He has expressed himself in the following words: "The only examplars on the record are those filed by the applicant. A perusal of the examplars will show that they are not reliable and they could not be taken as basis for determining the market Value of the plots in question. Firstly, besides Exs. 35 and 39 all are in respect of plots situate in villages other than those in which the plots in question are situate and there is no reliable evidence on the record to prove that the land mentioned in those examplars are contiguous or even situate near the plots acquired. Moreover, many of the examplars are in respect of rent free or revenue, free plots which are bound to be more expensive than other plots and therefore no reliance could be placed on prices paid for such land. It may further be pointed out that market value of the plots in the year 1946 has to be determined as the first notice which was issued under the D. I. R. for acquisition was issued on 30th September, 1946. Most of the examplars are of 1949, 1951 and even of a later date. There is only one examplar, viz., Ex. 35 which is of June 1947. During the period in question there was a rapid rise in price of land after the war ended. Ex. 35 which is in respect of a plot situate in village Ghamhapur shows that plots Nos, 295 and 287 measuring .12 acre and .16 acre respectively were sold for Rs. 1200/-, As has been mentioned, this could not be relied upon as it is in respect of revenue free and rent free plots. Similarly Ex. 39 shows that .41 acre of land situate in village Raghunathpur was sold for Rs. 2900/- in the year 1948 that is about two years after the period in question. At this rate the price of 1 acre would be more than Rs. 7000/- which on the face of it appears excessive and is much more than the rate at which the applicants themselves have claimed compensation. Thus all the examplars have to be rejected and it is not possible to determine the market value of the plots on the basis of any of the examplars brought to the notice of the arbitrator."