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Gauri Shanker Misra and ors. Vs. the Collector - Court Judgment

LegalCrystal Citation
SubjectProperty;Arbitration
CourtAllahabad High Court
Decided On
Case NumberFirst Appeal No. 60 of 1960
Judge
Reported inAIR1964All488
ActsUttar Pradesh Defence of India Act, 1939 - Sections 19, 19(1) and 19(2); Uttar Pradesh Defence of India (Compensation and Arbitration) Rules, 1943 - Rules 3, 4 and 75A; Land Acquisition Act, 1894 - Sections 11, 18 and 23
AppellantGauri Shanker Misra and ors.
RespondentThe Collector
Appellant AdvocateC.S.P. Singh and ;V.B. Upadhya, Advs.
Respondent AdvocateStanding Counsel
DispositionAppeal allowed
Excerpt:
property - determination of compensation - section 19 of defence of india act,1939 - acquisition of land and compensation by court in excess of arbitrators award - interest has to be allowed on such excess from the date of taking possession. - - 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. 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. 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.....jagdish sahai, j.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.....
Judgment:

Jagdish Sahai, J.

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 theGovernment of India Act, 1935, there shall be paidcompensation, 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 inthe 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 thesame are to be found in the U. P. Defence ofIndia (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 reproduced 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 examplarsare 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.'

4. The other type of evidence before the arbitrator consisted of the statements of P. W. 1, Gauri Shanker Misra, P. W. 2, Bhagwati Singh and P. W. 3, Sri Akshaibar Lal, patwari on behalf of the appellants, and of the statement of Jwala Prasad, Naib Tahsildar, on behalf of the respondent, the State of U. P. In addition to this parole evidence, a large number of documents were filed by the appellants which included the Khasras and khatau-nis of the villages in which the plots in dispute are situated for the year 1355 Fasli, two decrees ot a revenue Court, some settlement papers, the roster rates book and the papers prepared by Jwala Prasad, Naib Tahsildar. Admittedly, the revenue records of the year 1354 fasli, in which year the acquisition took place, were not filed in this case. The arbitrator has in his award made no reference to any of the documents that were filed before him or to oral evidence produced before him. He has relied upon the statement of Jwala Prasad Naib Tahsildar and the papers prepared by him. The only variation that the arbitrator made in the amount fixed by the Naib Tahsildar Jwala Prasad was that, whereas the former had applied multiples which were applied to land acquired in 1942, the arbitrator applied the multiples which were made applicable in the year 1946, to other land acquired. Except for this minor change, the arbitrator maintained almost intact the figures arrived at by the Naib Tahsildar Jwala Prasad.

5. Two submissions have been made before us by the learned counsel for the appellants. They are as follows:

1. That the arbitrator arbitrarily and withoutsufficient cause rejected the evidence furnished bythe sale deeds filed by the appellants on groundswhich are not tenable.

2. That the arbitrator did not consider the other evidence on the record and simply adoptedwhat the Naib Tahsildar Jwala Prasad had pre-pared, with minor changes as already stated above, with the result that the findings recorded by the arbitrator are in derogation of the evidence on the record and have been arrived at by ignoring it.

No other submission has been made before us.

6. It is admitted by the learned counsel for the parties that the revenue records of the year 1354 Fasli would have been a good piece of evidence in the present case. As it is, those records have not been filed. Counsel for the parlies have thrown the responsibility of not filing those records on the side opposite to them. It was contended by the learned Senior Standing Counsel that the burden was on the appellants to prove that Decompensation offered to them was not adequate and that inasmuch as they did not file the revenue records of the year 1354 Fasli, they are to blame with the result that they have failed to make out a case for the increase in the amount fixed by the Naib Tahsildar Jwala Prasad and therefore the award of the arbitrator should not be interfered with. The question that requires consideration is on whom lay the burden of proving as to- what was the correct amount of compensation. The only provisions in the Act, relevant in this connection are Clauses (e., (d) and (e) of Section 19 (1) which read as follows:

'(c) The Central Government may, in any particular case, nominate a person having expert knowledge as to the nature of the property acquired, to assist the arbitrator, and where such nomination is made, the person to be compensated may also nominate an assessor for the said purpose.

(d) At the commencement of the proceedings before the arbitrator, the Central Government and the person to be compensated shall state what in their respective opinions is a fair amount of compensation.

(e) The arbitrator in making his award shall have regard to-

(i) the provisions of Sub-section (1) of Section 23 of the Land Acquisition Act, 1894 so far as the same can be applicable and

(ii) whether the acquisition is of a permanent or temporary character.'

In our opinion, the position of the arbitrator under Section 19 of the Act is not similar to that of a District Judge under Section 18 of the Land Acquisition Act. It was contended on behalf of the State, on the analogy of the provisions of the Land Acquisition Act that the person who is dissatisfied with the amount fixed by the Collector should prove before the arbitrator that the amount is not adequate or it is not representative of the fair market value of the property acquired. In this connection reliance was placed upon Ezra v. Secy. of State, ILR 32 Cal 605 (PC) and Asstt. Development Officer v. Tayaballi AIR 1933 Bom 361 at p. 363 and it was submitted that these authorities' support the contention that the compensation award prepared under Section 11 of the Land Acquisition Act and filed under Section 12 of the same Act is nothing but in the nature of an offer made to persons whose land is acquired. This argument has been made in order to advance the case of the State that there is no difference between the offer made under Rule 4 of the U. P. Rules andthe award made under Section 11 of the Land Acquisition Act. Even if that was so, we do not see how the onus of proof would be on the appellants. Besides the ratio of these authorities which are not on Rule 4 is not that the word 'offer' as occurring in that Rule (4 of the U. P. Rules) has the same meaning which their Lordships have given to that word in the two decisions mentioned above.

In our judgment, the rationale of these cases is that the award made under Section 11 of the Land Acquisition Act is in the nature of an offer and not that it is an offer in the same sense in which an offer is made under Rule 4 of the U. P. Rules. Apart from it in 1954, Section 18 of the Land Acquisition Act was amended for Uttar Pradesh and a provision was introduced under which even the Land Reforms Commissioner can file an application for a reference being made to the District Judge on his behalf in respect of the amount awarded as compensation under Section 11 of the Land Acquisition Act with the result that it would be difficult to see how the compensation award can be treated to be a mere offer. A person cannot have a right to have a reference made in respect of his own offer. It is true that the notification in the present case was issued before the 1954 amendment was made but we are not applying the amendment to this case. All that we are saying is that in our judgment it is not correct to say that the offer envisaged by Rule 4 is the same thing or can be equated with the award given under Section 11 of the Land Acquisition Act. In our judgment, the provisions of the two Acts are very different from each other and it would be a mistake to decide the case giving rise to this first appeal in derogation of the provisions of the Act and the rules and on the basis of the provisions or on the analogy of the Land Acquisition Act. As we see Section 19 of the Act, we find that the arbitrator has got a vast discretion in the matter and it is his duty to find out the market value of the lands acquired by applying the provisions of Section 23 of the Land Acquisition Act. In other words, it is the duty of the arbitrator to determine the market value of the land acquired. There is no onus on any party in that sense. Both the parties had the duty and are entitled to lead such evidence which, in their opinion, would help and advance their cause. Five questions of burden of proof on the basis of the provisions contained in the Indian Evidence Act in our judgment are not applicable to the proceedings before the arbitrator. The view that we are taking finds support from Province of West Bengal v. Raja of Jhargram : AIR1955Cal392 and Surjan Singh v. The East Punjab Govt .

7. Having thus disposed of the submission of the learned Senior Standing Counsel that the burden of proving as to what was the actual market value of the property acquired was on the appellants and inasmuch as they did not produce the relevant revenue records of the year 1354 Fasli, they should be made to suffer, we would now proceed to decide the case on the basis of the material before us.

8. We are unable to agree with the arbitrator that the sale-deed filed by the appellants did not provide any guide in determining the market value of the land in dispute. The provisions of Section 23 of the Land Acquisition Act requiring the determination of the market value of the land sought to be acquired are applicable to the proceedings before us. Ext. A-35 is a sale-deed dated 10-6-1947, Exhibit A-36 is one dated 18-3-1949, Exhibit A-38 is one date 22-7-1949, Exhibit A-39 is one dated 11-6-1948, Exhibits A-40 and A-41 are dated 30-7-1951, Exhibit A-42 is dated 3-4-1951 and Exhibit A-44 is dated 21-1-1954. It is true that the sale-deed dated 21-1-1954 was executed about eight years after the notice for acquisition was published in this case, but the others are within a period of about 3-4 years of that date. It has been contended by the learned Senior Standing Counsel that these sale-deeds should not be treated as good examplars for the reason that they were executed after the date of notification and in all likelihood with a view to create evidence so that the amount of compensation in the present case may be inflated. There is no material before us to show that the sale deeds do not evidence genuine transaction. P. W. 2, Bhagwati Singh is a party to the sale-deed Exhibit A-35. He has stated that he purchased plots Nos. 295 and 287, area .12 and .8 acres respectively. He has proved the execution and the attestation of the document. We have carefully perused his statement. In our opinion, no good ground exists to reject his testimony.

It is well settled that the burden is always on the party which alleges a document to be sham and fictitious to prove it and it is he who must show that the document solemnly executed and registered evidences a collusive transaction. See Parasnath Thakur v. Smt. Mohini Dasi AIR 1959 SC 1204. It is equally well settled that a transaction must be taken to be genuine and that the testimony of a witness must be accepted unless something is shown to justify rejecting the same. See Hirachand Punamchand v. Temple, (1911) 2 KB 330 at p. 339, Uttam Chand Saligram v. Mahmood Jewa Mamooji, 23 Cal WN 704 : (AIR 1920 Cal 143) and Ambar Ali v. Emperor : AIR1928Cal769 . We cannot proceed on the assumption that the sale-deeds mentioned above were fictitious or collusive and had been executed solely to provide material to the appellants to have their compensation inflated. Under these circumstances, we take these sale-deeds to be evidencing genuine and bona fide transactions. It is true that no sale-deed earlier than the 30th September, 1946 has been filed in the present case. The learned Senior Standing Counsel has strenuously contended that that circumstance alone would show that the sale-deeds relied upon by the learned counsel for the appellants and produced before the arbitrator cannot be relied upon. The argument is based upon an assumption for which there is no material on the record, the same being that there are in existence sale-deeds anterior in time to the 30th September, 1946.

9. Alternatively, the learned Senior Standing Counsel has contended that even in case there are no earlier sale-deeds, the sale-deeds filed should be looked with reservation because it is a suspicious circumstance that no sales took place before 30th September, 1946, but thereafter there was a crop of sale transactions. This again to our mind is not a cogent argument. The general rule is that fraud and collusion cannot be presumed andmust be proved by the party pleading it See AIR 1959 SC 1204 Supra), Mathura Pandey v. Ram Rucha Tewari, 11 Suth WR 482, Kubeerood-deen v. Jogul Shaba, 25 Suth WR 133 and Raj Narain v. Rowshin Mull, 22 Suth WR 124. The learned Senior Standing Counsel should, therefore, have placed some evidence before us on the basis of which we could reject the sale-deeds mentioned above.

10. It was next contended on behalf of the State that the sales evidenced by the deeds mentioned above are in respect of very small portions of land and consequently cannot provide a safe guide for determining compensation in the present case where the land acquired is about 500 acres. We agree that this is a circumstance which should be taken into consideration while deciding the question whether the rate at which properties have been sold in the transactions evidenced by the sale-deeds mentioned above should be applied to the present case also or a lower rate should be applied. This does not however mean that evidence furnished by these sale-deeds should be rejected.

11. We have, therefore, come to the conclusion that the sale deeds mentioned above were wrongly rejected by the arbitrator and should have been taken into consideration by him on the ground that they furnished relevant and admissible evidence entitled to consideration from the Court.

12. We now come to the oral evidence. P. W. 1, Gauri Shankar who is one of the appellants, and holds power of attorney from the other appellants, has stated that he has filed original sale-deeds and when originals were not available certified copies of sale-deeds evidencing transactions relating to adjoining plots, the copies of Khasras and khataunis prepared by the Compensation Officer (obviously meaning the Naib Tahsildar Jwala Prasad), the register of roster rates and the copies of other papers. P. W. 3, Akshaibar Lal,--is the patwari of the Baikunthpur Circle, in which villages Karmi and Ghamhapur where the plots in dispute lie are situated. He clearly stated that he had been to these villages and made enquiries about sub-tenants, entering the result of his enquiries in the roznamcha and obtaining the signatures or thumb impressions of the tenants thereon. He has appeared to us to be a trustworthy witness.

13. D. W. Jwala Prasad Naib Tahsildar has stated that he was working as aerodrome Naib Tahsildar and had got prepared valuation report and Compensation Statement in respect of land acquired with the help of the land acquisition amin. patwari's records and the local patwari. According to him in all 515.82 acres of land was acquired out of which the land in dispute is 48.01 acres. This witness did not prepare his records exactly on the basis of the record prepared by the revenue department in the regular course. What he did was that wherever he thought there were wrong entries regarding rent, he scored them out from the village records. He admitted that he did not consider any examplars because in his opinion there was no provision for considering the same. No provision has been brought to our notice, except para 460 of the Revenue Manual, under which the Naib Tahsildar could have either overlooked or discarded the entries in the Khasras and Khataunisprepared in the normal course by the revenue department. Para 460 aforesaid reads as follows:

'460. The tenant's rental recorded in the pat-waris' papers should usually be accepted unless there is reason to doubt its genuineness; When an objection is made that the recorded rent is less than the rent actually paid, the claim should be regarded with suspicion, and clear proof should be demanded before the difference between the recorded and the alleged actual rent is included in the estimate of profits.'

In our judgment, this paragraph did not confer on Naib Tahsildar Jwala Prasad any authority to make any changes in the revenue records even for the purpose of fixation of compensation. Para 460 occurs in Ch. XV of the Revenue Manual. That Chapter is headed as 'Instructions regarding the award and apportionment of compensation'. Nothing has been brought to our notice by the learned Senior Standing Counsel to show that this paragraph has any statutory support. Apart from it the instructions contained in the U. P. Revenue Manual are meant for purposes of compensation under the provisions of the Land Acquisition Act and not under the Defence of India Act or the Rules framed thereunder. It is true that Rule 3 of the U. P. Rules provides that the compensation shall be determined 'in accordance with the instructions issued from time to time by the Provincial and the Central Government' and it is contended by the learned Senior Standing Counsel that even though para 460 may not have any statutory force not having any statutory foundation, it acquires the force of law by virtue of Rule 3. We are unable to agree with this contention.

There are two difficulties in accepting that para 460 of the Revenue Manual has statutory force. The first one is that in order for that paragraph to have statutory force, there should be some statutory foundation. Merely because Rule 3 of the U. P. Rules says that in determining compensation the Collector shall take into account general and special directions issued by the Provincial or the Central Government would not provide a statutory base to para 460. There should have been a provision under which that paragraph was framed. Rule 3 only makes that paragraph applicable to the present proceedings but without giving it any statutory support. If that instruction or rule has no statutory status, it cannot acquire one only because it has been made applicable to compensation proceedings by virtue of Rule 3. But quite apart from it it is the Collector who has been given the power under Rule 3 to take into consideration any special or general directions issued by the Provincial or the Central Government. In the present case, the papers prepared by Naib Tahsildar Jwala Prasad do not bear any signatures or initials. There is nothing on the record to show that the Collector approved of them or that the same were prepared under the directions and the supervision of the Collector. It is true that a Collector can get the ministerial and spade work done by his subordinates but in that case there must be evidence to show that the particular subordinate did it under his orders. That evidence is missing in the present case.

The learned Senior Standing Counsel has contended that the defect of the papers of Sri JwalaPrasad not having been signed or initialled by the Collector is made good by the circumstance that certain documents on the record have been signed by Sri Jowhary, Special Land Acquisition Officer, Admittedly, Sri Jowhary was not the Collector of the district, It has not been shown to us that the Collector of the district had delegated his powers under the Land Acquisition Act to him. We will however come to this question a little later. At this stage we may only state that under Rule 3 it is the Collector who has either to prepare himself or get prepared by his subordinates compensa-tion papers and it is for him to follow any special or general instructions issued by the Central or the Provincial Government. Merely because Sri Jowhary has signed some documents, which appear to be the offer of compensation to the appellants, does not mean--assuming that he was a Collector--that he had also directed the Naib Tahsildar Jwala Prasad to prepare the compensation papers according to the provisions of para 460. Neither that paragraph nor Rule 3 of the U. P. Rules confer on the Naib Tahsildar power to reject the rental recorded in patwari's papers on the ground that he had doubt about its genuineness. The question of correctness or otherwise of revenue entries has not been left by law to a ministerial officer. It has not been shown to as that the Collector or even Mr. Jowhary, who may, for purposes of argument, be assumed to be a Collector, had issued directions to Sri Jwala Prasad not to treat certain recorded rentals as genuine and to ignore them. Besides, -it is difficult to hold that Mr. Jowhary was the Collector within the meaning of Rule 3 of the U. P. Rules. Clause (d) of Rule 2 of the U. P. Rules provides that the Collector and the Commissioner shall have the same meaning as assigned to them in the U. P. Land Revenue Act, 1901 (III of 1901). Section 14 of the U. P. Land Revenue Act reads as follows:

'14. The Local Government shall appoint in each district an officer who shall be the Collector of the district, and who shall, throughout his district, exercise all the powers and discharge all the duties conferred and imposed on a Collector by this Act or any other law for the time being in force.'

In other words Section 14 provides that the Collector shall be the person who shall be the principal executive head of a district and not one of his subordinates who may be performing the functions of the Collector. In the Land Acquisition Act the word 'Collector' has been differently defined than the U. P. Land Revenue Act, 1901. Clause 3 (a) of the former Act defines 'Collector' as follows:

'The expression 'Collector' means the Collector of a district, includes a Deputy Commissioner and any officer specially appointed by the appropriate Government to perform the functions of a Collector under this Act.'

Therefere, if a Deputy Collector acts for a Collector under Section 9, 11 or 12 of the Land Acquisition Act, he does so not because he is a Collector of the district but because he has been appointed to perform the functions of a Collector by the Government. Mr. Jowhary may have been a Collector within the meaning of the Land Acquisition Act but in our judgment he was not a Collector, with-in the meaning of Rule 3 of the U. P. Rules. The learned Senior Standing Counsel has placed reliance upon Section 14-A of the Land Revenue Act,1901 which reads' as follows:

'14-A. (1) The Local Government may appoint an Additional Collector in a district of in two or more districts combined.

(2) An Additional Collector shall hold his office during the pleasure of the Local Government.

(3) An Additional Collector shall exercise such powers and perform such duties of a Collector in such cases or class of cases as the Local Government or, in the absence of orders from the Local Government, the Commissioner concerned, may direct.

(4) This Act and every other law for the timebeing applicable to a Collector shall apply to everyAdditional Collector, when exercising any powersor discharging any duties under Sub-section (3) as ifhe were the Collector of the district.'

14. On the basis of this provision the learned counsel contends that Sri Jowhary may have beea delegated the powers of a Collector in respect of the acquisition in the present case. There are two hurdles in the way of the learned counsel. The first one is that whenever a question of delegation arises, the delegatee must prove his authority and it must be proved to the satisfaction of the Court that the power was actually delegated. In the present case, there is no such evidence on the record. The learned Senior Standing Counsel says that the point was not raised in the Court below nor in the grounds before us. In our judgment, it was not necessary for this point to have been raised in the grounds for the simple reason that it is the State which wants to take advantage of the provisions of Section 14 of the U. P. Land Revenue Act, in order to prove a question of fact and not one of pure law, the question of fact being whether actually there was delegation o power, in this particular case, to Mr, Jowhary.

15. For the reasons mentioned above, we are of the opinion that Jwala Prasad, Naib Tahsildar had no jurisdiction or justification for ignoring cer-tain entries in the village records on the ground that the same had not been properly prepared. The arbitrator did not look into this aspect of the matter and accepted the figure of compensation arrived at by Naib Tahsildar Jwala Prasad. We have already said above that the relevant year was 1354 Fasli but no village records of that year have been produced in the present case. We have also said above that the figures given in the village records of the year 1355 Fasli could not have been interfered with by D. W. Jwala Prasad. It is clear that even if compensation was to be awarded on the basis of the papers of 1355 Fasli, as they were, without noticing the unauthorised changes made therein by Jwala Prasad, Naib Tahsildar, the amount of compensation would be Rs. 1,91,272.50 nP. Actually, Mr. C. S. P. Singh the learned counsel for the appellants has worked out the compensation amount on a piece of paper on the basis of 1355 Fasli papers and gave a copy of it to the Court and another to the learned Senior Standing Counsel. The learned Senior Standing Counsel has not challenged the correctness of the figures worked out by Mr. Singh. We are however of the opinion that the relevant year being 1354 Fasli and not 1355 Fasli compensation should not be awarded on the basis of 1355 Fasli revenue papers.

16. The other type of evidence on the record is that furnished by the sale-deeds. We do not think that the sale-deed Exhibit A-44 should be treated as a good examplar. The acquisition took place in 1946 and the transaction evidenced by that sale-deed, admittedly took place eight years after the date of notice. It cannot, therefore, provide a good basis. The other sale-deeds are either of the year 1947, 194S, 1949, 1950 and 1951. These, in our opinion, are good pieces of evidence. The sale-deed Exhibit 42 dated 3rd April, 1947 is in respect of sale of .26 acre of Goind III quality land for Rs. 1000/-, The price of one acre, therefore, would be Rs. 3,846.12 nP. The land acquired includes Geond II, Geond III, Palo I and rice, Exhibit A-11 is the 'Roster Year's 1335 F. 1927-28 Rent-Rate Report of Pargana Kol Asia Tahsil Renaras, district Benaras'. The land acquired falls in villages in pergana Kol Asla. The following table gives the rates sanctioned by the Board of Revenue for pergana Kol Asla:

SOILSOCCUPANCY

STATUTORY

WET

DRY

WET

DRYRs.as Rsas.Rs.as.Rs.as.Goind A278. . 428. . Goind I1710. . 274. . Goind II131211021417' 0Goind III118961714148Palo I9147121841114Palo II726011096Palo III. . 314..60Rice I..6...96Rice II..46..612Rice III..34..52

17. If the sale-deed Exhibit A-42 were to be accepted as a basis and the proportion given in the table mentioned above adopted, the price per acre for Goind II land would be Rs. 4,572/5/-, for Goind II Rs. 3,846/2/-, for Palo I Rs. 3,281/4/-for Palo II Rs. 2,366/13/-, for Palo III Rs. 1,291/-, for Rice I Rs. 2,017/2/- for Rice II Rs. l,452/6/-and for Rice III Rs. 1,102/12/-. The area to which the present appeal relates is 48.01 acres. This includes .83 acre Goind II, 1.25 acres Goind III, 16.78 acres Palo I, 18.04 acres Palo II, 8.39 acres Palo III, 1.17 Rice II and 1.55 Rice III. Worked out on the basis of other sale-deeds exhibited in the case, the rate would be much higher. The area of land conveyed by Exhibit A-42 is much less than an acre. The land acquired is a very big piece of land. It is trite that the price of small plots is much higher than that of big ones. In our judgment, considering the fact that the sale-deed Exhibit A-42 relates to a small plot, there is some scope for reducing the rate as furnished by that sale-deed, with regard to the land acquired. We are of the opinion that three-fourths of the rates mentioned above should be applied to the various qualities of land acquired in the present case. Worked on the basis of those rates, the compensation for the land in dispute in the present case, i. e., 48.01 acres, would be Rs. 90,446/3/- is would be apparent from the chart appended to this judgment. The chart also gives the amount of compensation receivable by each of the appellants.

18. We are also of the opinion that there is substance in the submission of Mr. Singh that the appellants are entitled to receive interest. There has been some controversy between the parties as to what should be the rate of interest. The learned Senior Standing Counsel has contended that it should not be more than 4 per cent. On behalf of the appellants reliance has been placed upon . The Province of Bengal v. Pawn Kissen Law and Co : AIR1950Cal498 and District Collector of Krishna v. Viswanadam : AIR1953Mad867 where interest was awarded at the rate of 4 to 6 per cent. Considering all the circumstances of the case, we are of the opinion that the appellants be awarded interest at the rate of 4 1/2 per cent per annum over the sum awarded to them in excess of that awarded by the arbitrator i. e., over Rs. 63,999.44 nP.

19. It was also contended that the appellants are not entitled to 15 per cent allowed by the arbitrator over the amount awarded by him. There is no cross-appeal in respect of that item. Consequently that part of the decree stands.

20. The result therefore, is that the appeal is allowed to the extent mentioned above. The parties shall pay and receive costs in proportion to their success and failure. Interest over the amount awarded to the appellants in excess of that awarded by the arbitrator i. e., Rs. 63,999.44 nP. will run from 6-4-1948 the day on which possession was taken after the land had been acquired upto the date of payment.


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