M SAMIULLAH Vs. COLLECTOR OF ALIGARH

JUDGEMENT

(1.) These are two consolidated appeals from the judgment and decree of the High Court of Judicature at Allahabad, dated 3 September 1940, modifying the judgment and decree of the District Judge of Aligarh dated 18 August 1936, which in turn modified the award of the Land Acquisition Officer, Aligarh, dated 7th November 1933. The land to which the first appeal relates consists of twelve bighas and nine biswas, which were held by the appellant as the mutwalli of waqf property. The land to which the second appeal relates consists of one bigha which was the appellant's personal property. These lands were acquired, together with other adjacent lands belonging to other owners, for the Co-operative Housing Society, Ltd., Aligarh, under Government Notification dated 29 May 1930, and issued under the provisions of the Land Acquisition Act. At that time the whole area held by the appellant was occupied by two tenants, Abdul Karim and Karu. During the proceedings before the Land Acquisition Officer, it was agreed between all the parties before him first, that in order to ascertain, the market value of the land concerned all the sale-deeds relating to the sales in respect of an area less than 75 yards should be struck off, and secondly, that the exemplars for evolving sales, that is sale-deeds relating to other sales, should be taken into consideration as far back as the year 1923, i.e., 7 years preceding the year 1930, excluding the transactions which had some special grounds for being too high or too low or which might be inadmissible on any other ground to be decided by the Land Acquisition Officer.

(2.) The Land Acquisition Officer decided to apply a flat rate in "respect of the lands under acquisition and to fix that flat rate at 5 annas, 1 pie per square yard and he fixed the compensation payable to the appellant on that basis. It is not shown in the award made by the Land Acquisition Officer how the figure of 5 annas, 1 pie per square yard was arrived at, but from the judgment of the High Court now under appeal it appears that the Land Acquisition Officer took 28 exemplars, selected from a much larger number, which had taken place within the previous 7 years, that he added up the number of square yards sold in such transactions and the prices paid thereon and, by striking an average reached the figure of 5 annas, 1 pie per square yard, and awarded to the appellant in respect of both his personal and waqf property a sum of Rs. 14,127-13-6.

(3.) On 27 August 1934, the appellant lodged an application to the Collector as Land, Acquisition Officer under S. 18, Land Acquisition Act, 1894, for reference to the civil Court regarding the acquisition of the properties on the ground that the compensation awarded was inadequate. In his written statement the Collector pleaded that the award of the Collector was made on the basis of the statement of parties "that the value be fixed on the basis of certain sale-deeds on the file" and, therefore, the applicant had no right to question the award. The learned District Judge raised two issues which are material: "(1) Whether the compensation awarded is adequate? If not what is the proper compensation? (2) Whether the rate of compensation was fixed with the consent of the applicants and the acquiring body ? If so, how does it affect the case ?'' The learned Judge dealt with issue 2 first. He noted that the agreement of the parties excluding sale-deeds relating to areas less than 75 yards and sales more than 7 years before the notification were relied on behalf of the Collector to preclude the applicants from questioning the award. The learned Judge rejected this contention, holding that the agreement only related to the evidence to be relied on for the purpose of determining the value, and that the parties had not consented to be bound by the conclusion drawn by the Land Acquisition Officer on the basis of such evidence. The learned Judge then considered the 28 exemplars which had been relied on by the Land Acquisition Officer and came to the conclusion that the conditions of the sale-deed, Ex. 84, one of the 28 exemplars, bore a very close resemblance to the conditions relating to the acquisition of the appellant's land, and that the rate at which the land in that exhibit was sold, namely, 10 annas, 10? pies per square yard, afforded the best basis for valuation of the appellant's land. Accordingly he allowed that rate, and, adding 15 per cent. for compulsory acquisition, increased the amount awarded to the appellant to Rs. 29,202-6-10. From the decision of the learned District Judge, the appellant appealed to the High Court. There was also an appeal by the Collector and by one of the tenants of the appellant's property, but as those parties have not appealed to His Majesty in Council their cases need not be considered. The learned Judges of the High Court disagreed with the learned District Judge in his answer to issue 2, and stated their opinion in these words : "We are also of the opinion that there was a binding agreement between the parties that certain exemplars afforded the basis for determining the market value of the various properties. The agreement was not only that transactions involving less than 75 square yards and of a period anterior to 1923 should be excluded, but the Land Acquisition Officer was further given the power to reject some transactions on the ground of 'being too high or too low,? or by reason of being 'inadmissible on any other ground,' and, therefore, the parties agreed that the exemplars that might then remain after the exercise of discretion by the Land Acquisition Officer would constitute the basis for determining the market price, and we have to determine the market value of the land at the date of the publication of the notification under S. 4 of the Act."