THE COLLECTOR, VARANASI Vs. SURESH PRASAD AND OTHERS

JUDGEMENT

(1.) The Collector of Varanasi has filed this first appeal against the award dated Sept. 26, 1967 of the Tribunal constituted under Sec. 371 of the U. P. Nagar Mahapalika Adhiniyam, 1959 for the Nagar Mahapalika, Varanasi (hereinafter "the Tribunal") given by it in Reference No. 8 of 1955. By the impugned award, the Tribunal enhanced the compensation payable for acquisition of the land of Munshi Durha Vinayak Lal, the claimant respondent (since deceased and now represented by his widow, Smt. Jadubanshi Devi (for brevity "the claimant) situate near Durga Kund in the city of Varanasi as well as for a a pakka well, a kachcha construction, fruit bearing and other trees and the crop of Bora and Bhindi existing thereon.

(2.) On Dec. 17, 1949, a notification under Sec. 36 of the U. P. Town Improvement Act (corresponding to Sec. 4 of the Land Acquisition Act) was issued for acquisition of land including the area of plot No. 1939 and part of plot No. 1940 belonging to the deceased-claimant, Durga Vinayak Lal by the Collector for Improvement Trust, Varanasi for project No. 3 1949-50 of the Bhelupura Housing and General Development Scheme. A notice under Sec. 42 of the Town Improvement Act (corresponding to Sec. 9 of the Land Acquisition Act) was published in the U. P. Gazette and served on the claimant on Oct. 19, 1953. An objection was filed by the claimant on Nov. 27, 1953. The Land Acquisition Officer awarded a sum of Rs. 11,196/- by his award dated July 5, 1955. Being dissatisfied, the claimant sought a reference under Sec. 18 of the Land Acquisition Act disputing the award on various grounds. One of the grounds taken was that the Land Acquisition Officer had erred in awarding compensation for the acquired land on the basis that it was agricultural land. According to the claimant, the same should have been calculated as for land appurtenant to a residential bungalow and should have been valued at the prevailing market rate for similar land. The claimant also disputed the rate at which compensation had been awarded for the pakka well and the kachcha construction as also for the fruit bearing and other trees as well as Bora and Bhindi crop raised by him in the space between those trees. There was some dispute between the claimant and the Collector about the area out of plot' No. 1940 which had been acquired. According to the Collector, it was, 0.16 acres whereas according to the claimant, it was 0.35 acres. In its reply, the Collector justified the basis of the compensation for the acquired land as agricultural land as well as the amounts awarded by the Land Acquisition Officer in respect of the remaining items. The parties adduced oral and documentary evidence before the Tribunal.

(3.) The Tribunal framed as many as 7 issues as arising from the pleadings of the parties. Of these, issues Nos. 3 and 7 were in regard to the correct basis of compensation and the rate at which it should be awarded. Dealing with the plea of the appellant about the nature of land being agricultural on the date of the initial notification under Sec. 36 of the Town Improvement Act, the Tribunal observed that "the opposite party (the Collector) did not adduce any evidence to show that the land of the applicant acquired for the Improvement Trust was being used as agricultural land" and that "we, therefore, believe the applicants (claimants) evidence that the applicants land acquired for the Improvement Trust on which there was garden and on a part of which there was kachcha structure, which was said to be a servants quarter, was appurtenant to the bungalow of the applicant which was situate in Mohalla Durga Kund in the city of Varanasi and that it was not an agricultural land. The land should, therefore, be valued not as agricultural land but as land appurtenant to bungalow of the applicant in the city of Varanasi. The facts of this case are almost similar to the facts of the case of Babu Kailash Chandra Jain Vs. Secretary of State (AIR 1946 PC 132) . In that case, the land appurtenant to the building was valued at the prevailing, market rate of the land and not agricultural land. The same principal should be adopted in the present case."