TaxTMI 
TaxTMI 
2004 (3) TMI 835
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....area of about 4 bighas. The preliminary notification under Section 4(1) of the Land Acquisition Act (hereinafter referred to as 'the Act') was published in the Gazette on 7.1.1987 and it was recited therein that the land is being acquired for a public purpose namely for construction of residential flats by ADA and in view of urgency, the provisions of Section 17 were being invoked. The Special Land Acquisition Officer (hereinafter referred to as 'SLAO') made an award for the acquired land on 15.6.1987 and further directed that the compensation payable for the building and the trees standing thereon shall be determined subsequently after their valuation had been ascertained. The question of apportionment of the compensation for the acquired land was referred for determination by the Court in accordance with Section 30 of the Act. The ADA thereafter took possession of the land on 16.6.1987. It is the admitted case of the parties that the land in dispute, namely, 2 Circular Road was owned by the State Government which had been given on lease. According to the claimant Ravindra Kumar Tandon (husband of the appellant Smt. Kiran Tandon) the lease in his favour was to expi....
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....erred a review petition in which notice was issued on 3.8.1999. Having heard counsel for the parties at some length, we are of the opinion that there is substance in the special leave petition preferred by the ADA as discussed hereinafter. Accordingly review petition is allowed and leave is granted. 4. Shri Sunil Gupta, learned senior counsel for the claimant has at the very outset assailed the order of the High Court whereby the application moved by the State of U.P. for transposing it as appellant in the, appeals preferred by ADA was allowed. In the appeals preferred by the ADA against the judgment and award of the Addl. District Judge Smt. Kiran Tandon (widow of the original claimant Ravindra Kumar Tandon) was arrayed as respondent No. 1 and State of U.P. was arrayed as proforma respondent No. 2. The applications for transposition were supported by the affidavit of Tehsildar Sadar, Allahabad wherein it was averred that an objection had been raised on behalf of State of U.P. before the Addl. District Judge that the acquired land was State land and therefore the entire compensation amount should be awarded to State of U.P. The land had been acquired for construction o....
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....mant was entitled to entire amount of compensation having not been challenged either by the ADA or by the State of U.P. by filing an appeal, the said finding would operate as res judicata and it was not open to the High Court to apportion the compensation amount and to hold that claimant would get only half and remaining half would go to the State Government. In order to examine the contention raised it is necessary to mention the relevant facts. In reference No. 126 of 1987 the State Government was shown as applicant-plaintiff and (1) Lalji Tandon (2) Ravindra Kumar Tandon (3) Officer Incharge Estate Institution, Allahabad and (4) Allahabad Development Authority were shown as defendant-opposite parties. Lalji Tandon claimed that he was the sole lessee of the land in dispute and, therefore, he was entitled to entire amount of compensation. Ravindra Kumar Tandon also made a similar claim that he was entitled to entire amount of compensation as he was the sole lessee of the plot in dispute. The State Government on the other hand claimed that Lalji Tandon was not the lessee of the land and the lease having expired and the same having not been renewed it was entitled to receive th....
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....se filed by the claimant, the Additional District Judge noticed the contention raised on behalf of State of U.P. in the following manner: "On behalf of the State of Uttar Pradesh and Allahabad Development Authority it was argued that the period of lease had expired and Sri Ravindra Kumar Tandon was not the owner of the said leased land. They also argued that even if it may be assumed that at the time when the property was acquired, the rights of Sri Ravindra Kumar Tandon were existing in the property at that time, then he can get compensation for that period alone. For the period for which the lease was still subsisting and not for the entire period. On the basis of the said two argument? they argued that Sri Ravindra Kumar Tandon was not the owner of the property and he is not entitled to receive the amount of compensation and the Estate Department of Govt. of Uttar Pradesh should get the said compensation. I do not find any force in the aforesaid arguments of the opposite parties." Thereafter, he observed that it is settled law that nobody can acquire his own property and if the State of U.P. was the owner there was no necessity for it to acquire the property. He furt....
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....h such issue has been subsequently raised, and has been heard and finally decided by such Court. A finding which has attained finality operates as res-judicata. In view of the fact that appeal had been preferred against the award decree made in reference No. 123 of 1988 it was always open to ADA or the State of U.P. to contend in the appeal that the claimant was not entitled to receive the amount of compensation as held by the learned Addl. District Judge and that the State of U.P. alone was entitled to receive said amount. Sh. Gupta has relied upon two decisions of this Court in Badri Narayan Singh v. Kamdeo Prasad Singh and Anr. [1962] 3 SCR 760 and Premier Tyres Ltd. v. Kerala Road Transport Corporation AIR 1993 SC 1202 in support of his submission that no appeal having been preferred against the judgment and award in reference No. 126 of 1987, the same became final and the issue regarding the entitlement of the claimant to receive the entire amount of compensation could not be examined in the appeal preferred against the judgment and award in reference No. 123 of 1988. The authorities cited by learned counsel are clearly distinguishable on....
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....ensation made by the Government to the claimants whose property is acquired. The burden of proving that the amount of compensation awarded by the Collector is inadequate lies upon the claimant and he is in a position of plaintiff. The Court has to treat the reference as an original proceeding before it and determine the market value afresh on the basis of the material produced before it. The claimant is in the position of a plaintiff who has to show that the price offered for his land in the award is inadequate on the basis of the materials produced in the court. The material produced and proved by the other side will also be taken into account for this purpose. (See Chimanlal Hargovind Das v. Special Land Acquisition Officer AIR 1988 SC1 652 and Periyar Pareekanni Rubbers v. State of Kerala AIR 1990 SC 2192). 11. A question which arises here is as to what method for determining the value of the property should be adopted when the land is comprised of buildings, trees or some other additions of like nature. In Principles & Practice of Valuation by J.A. Parks (published by Eastern Law House 1998 Edn.) the following paragraph on page 332 illustrates the different aspec....
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....ihar v. Ratanlal Sahu AIR 1996 SC 3500. But there is no hard and fast rule that land and building must be valued as one unit. They can be separately assessed if the large portion of the land is lying vacant and is capable of better use as stated by Venkatachaliah, J. (as His Lordship then was) in Administrator General of West Bengal v. Collector, Varanasi [1988] 2 SCR 1025 and it will be useful to extract the relevant part para 8 of the reports: "Usually land and building thereon constitute one unit. Land is one kind of property, land and building together constitute an altogether different kind of property. They must be valued as one unit. But where, however, the property comprises extensive land and the structures thereon do not indicate a realisation of the full developmental potential of the land, it might not be impermissible to value the property estimating separately the market value of the land with reference to the date of the preliminary notification and to add to it the value of the structures as at that time. In this method, building value is estimated on the basis of the prime-cost or replacement-cost less depreciation. The rate of depreciation is generally, a....
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....city supply, road and sewer lines were already in existence and as such there was no occasion for any further deduction from the market value of the land. Normally, the principle is that when a large area is acquired and the area is not fully developed a deduction of about 33 per cent from the market value is made. This view has been taken in Vijay Kumar Motilal v. State of Maharashtra AIR 1981 SC 1632, Sahib Singh Kalha v. Amritsar Improvement Trust AIR 1982 SC 940 and Special Tehsildar Land Acquisition v. A. Mangla Gowri [1991] 3 SCR 472 . The evidence on record indicates that the acquired land is situate in a developed area and approach road to the land and also power lines are available. However, in construction of multi-storeyed residential flats a considerable portion of the land has to be left out for internal roads, sewer line, open space etc. In such circumstances the High Court was justified in directing deduction of 20 per cent from the market value of the land. 17. Shri Gupta has submitted that the finding recorded by the Reference Court was perfectly correct that the claimant was entitled to entire amount of compensation and the H....
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....nce of this document mentions "this lease made the 20th day of one thousand nine hundred and forty five between the Government of the United Provinces.......". Here the month is missing though at a later stage, there is a recital "to hold unto the lessee from the 20th day of Feb. 1945 for the terms of 42 years 3 m. 48 ds." Mention of 48 days does not carry any sense and looks wholly illogical as in the event the days were exceeding 30, they would have been counted in month. It is mentioned in the document itself that the earlier lease had expired on 8th June, 1937. It appears that the figure "48" has been wrongly written for "18". If the period of 42 years 3 months and 18 days is counted from 20 Feb. 1945, it will end on 8th June, 1987. As mentioned in this very document the earlier lease had expired on 8th June, 1937 and therefore a fresh lease had been granted for a period of 50 years expiring on 8.6.1987. This shows that when ADA took possession of the land on 16.6.1987 the lease in favour of the claimant had already expired. Further this document does not contain any renewal clause. 19. The Reference Court has relied upon two letters in order to hold that the lease in favour....
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....e aforesaid departments, some of whom were in Allahabad itself who could produce the relevant records or even the communication received from the Government to the effect that a decision had been taken to renew the lease. But nothing of the sort was done. A decision taken by the Government can only be proved by production of relevant records by some authority or officer of the concerned department of the Government and not in the manner attempted to be done in the present case. The plea raised by the claimant that the Government had taken a decision to renew the Lease in his favour is therefore not established by the evidence on record. 21. There are other circumstances which also throw great doubt Upon the genuineness of the aforesaid letters. In the first letter of 28.7.1987 it is mentioned that "the Government after having due consideration had agreed to execute a new residential lease in place of the expired lease with effect from 25th May, 1987". According to the claimant his lease expired on 7.7.1987 or even if it treated as 8.6.1987 as discussed earlier there was no occasion for the Government to execute a new lease with effect from 25.5.1987 as mentioned in the letter. T....
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....e fact that the claimant was only a lessee of the acquired land, whether he would be entitled to entire amount of compensation. Leasehold rights being limited in nature and entirely different from ownership right, a lessee is not entitled to the entire amount of compensation for the acquired land. The High Court has held that claimant would be entitled to 50 per cent of the amount and balance would be payable to the State Government. 24. Radha Charan v. Secretary of State AIR 1943 Allahabad 238 is a case from Allahabad city itself where a considerable area on the Bank Road was acquired by the Government for Allahabad University in the year 1930. The Division Bench held that it is a full owner of land who normally gets the entire amount of compensation and there is no reason why a person who holds a lease should get compensation as an owner. It was further held that the amount of compensation he would get would depend upon the terms of the lease and the length of time that he might be expected to remain in possession of the property. In Inder Parshad v. Union of India (1994) 5 SCC 239 the appellant had obtained a perpetual lease of Nazul land from the Government. The High Court h....
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....of the compensation amount and the balance 80 per cent is payable to the State Government. 26. Shri Gupta has also assailed the finding of the High Court regarding the amount of compensation fixed for the building. The High Court has held that the report of the consulting engineer filed by the claimant shows that while assessing the value of the building he had also taken into consideration the land underneath the same which was more than 400 square meters and consequently the value of the land had been assessed all over again. There is another fallacy in his report. He has assessed the age of the building from the time of its renovation. There is no evidence that the foundation, walls and roof had been made all over again when renovation was done, nor it appears logical. So, the whole method of calculation was faulty. We are of the opinion that the view taken by the High Court that the value of the building which was more than 90 years old is Rs. 60,000/- is perfectly correct and calls for no interference. Similarly we find no ground which may warrant interference with the assessment made by the High Court regarding the value of the trees. 27. Shri Gupta has also submit....