# Harbans v. The State of U.P. & another

- **Citation:** (2001) 1 ILRA 32
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2001
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/harbans-v-the-state-of-u-p-another-39617
- **Pages:** 6

## Text

32 INDIAN LAW REPORTS ALLAHABAD SERIES [2001
against the petitioners only after verifying
the above allegations made against the
petitioners.

31. With these observations writ
petitions no. 310 of 2000, 1741 of 2000
1743 of 2000 & 2996 of 2000 and 3848 of
2000 are dismissed.

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By the Court

1. This appeal is directed against the
Award dated 30th May 1987 passed by the
Reference Court in Land Acquisition
Reference Case No. 40 of 1979.

2. Briefly stand the facts are that for
establishing
market
yard for Krishi
Utpadan Mandi Samiit at Shamli, District
Muzaffarnagar, the State Government
issued notification under Section 4 of the
Land Acquisition Act (hereinafter referred
to as the Act) on 6.11.1975. The plots of
the appellant unmbered as 282M, 284M,
285 and 286 total area 5 Bigha 11
Biswansis were sought to be acquired.
This notification was followed by another
notification under Section 6 of the Act.
The State Government took possession of
the land in question from the appellant on
16.1.1976. Notices under Section 9 of the
Act were issued requiring the persons
interested in the land forming subject
matter of the declaration to submit their
claims for compensation for acquisition of
their land. The appellant submitted the
claim petition before the Special Land
Acquisition Officer and he made an
Award
on
18.10.1977
awarding
compensation at Rs. 10,303.05 per bigha
and solatium at 15% and interest at 6%.
1All] Harbans V. The State of U.P. & another
33
3. The appellant, aggrieved against
the award of the Special Land Acquisition
Officer, sought reference under Section
18 of the Act. Various other claimants,
whose lands were adjoining to the land of
the appellant and were acquired by the
same notification. Also sought reference.
All the references were consolidated by
the Court and heard together. During the
pendency of the reference, the Land
Acquisition (Amendment) Act, 1968 of
1984 came into force by which certain
provisions were inserted and substantial
changes were made. The said Act has an
impact on the pending proceedings and as
a consequence thereof the appellant
moved an application before the Court
that the compensation be awarded as
envisaged by the amending provisions.

4. In the reference proceedings
documentary as well as oral evidence was
led by the parties. The State did not chose
to file any exemplar except one relied by
the Special Land Acquisition Officer
pertaining to the year 1973 i.e. more than
two years earlier than the notification
under Sections 4 and 6 of the Act. The
Court, considering the evidence, recorded
a finding that the market value of the land
was more than Rs.20,000/- per Bigha but
since compensation was claimed at the
rate of Rs.15,000/- per Bigha, it allowed
the claim at the aforesaid claimed rate.
The solatium was awarded at 30% and
interest at 12% per annum. The appellant
was not awarded the cost.

5. The appellant has filed the appeal
for enhancement of the compensation.
The first submission of the learned
counsel for the appellant is that though
the Court was recorded a finding that the
market value of the land was more than
Rs.20,000/- per bigha but awarded the
compensation at the rate or Rs.15,000/-
per bigha simply on the ground that the
appellant had claimed compensation at
the rate of Rs.15,000/- per bigha before
the Land Acquisition Officer without
considering the amended provisions of
Section 25 of the Act. Section 25 of the
Act before amendment read as under-:

"25.
Rules
as
to
amount
of
compensation -(1) When the applicant
has made a claim to compensation,
pursuant to any notice given under
Section 9, the amount awarded to him by
the Court shall not exceed the amount so
claimed or be less than the amount
awarded by the Collector under Section
11.

(2) When the applicant has refused to
make such claim or has omitted without
sufficient reason to be allowed by the
Judge to make such claim, the amount
awarded by the Court shall in no case
exceed the amount awarded by the
Collector.

(3) When the applicant has omitted for a
sufficient reason (to be allowed by the
Judge) to make such claim, the amount
awarded to him by the Court shall not be
less than, and may exceed, the amount
awarded by the Collector.

6. Sub-section (1) of Section 25 of
the Act clearly prohibited the Court from
awarding compensation in excess of the
amount
so
claimed.
Secondly,
this
restricted the power of the Court to
entertain any claim when aggrieved
person has not submitted any claim before
the Collector. To remove this mischief
Section 17 of the amending Act (Act 68
of 1984) was introduced. Section 25 as
substituted reads as under:-
34 INDIAN LAW REPORTS ALLAHABAD SERIES [2001
"25. Amount of compensation awarded by
the Court shall not be less than the
amount awarded by the Collector under
Section 11."

7. The embargo which was placed
upon the Court limiting its right to award
higher compensation than the claimed
before the Collector was removed and the
Court was in a position to award higher
claim if the parties lead evidence and
proved the marked value of the acquired
property. In Sharad Chandra V. State of
Gujrat and others, AIR 1987 Gujrat 55,
the Court in Para 10 of the judgment
considered the similar question and held
that the Court can award compensation in
excess of the amount claimed by the
claimant before the Land Acquisition
Officer. This decision was followed by
the Full Bench of Karnataka High Court
in The Special Land Acquisition Officer
(NHW) Dharwad v. Kallangouda and
others, AIR 1994 Karnataka 112, wherein
the Full Bench held that after the
amendment of the provisions of Section
25 of the Act, the claimant was entitled to
seek higher amount than what he had
claimed
before
the
Special
Land
Acquisition Officer. The Court observed
as Under:-

"While the law of course expects him to
make good the claim made before Court
by producing ample evidence, it has
nonetheless thought fit to remove all
barriers that may prevent or preclude him
from claiming the market value of the
land. Thus we find S. 25 as it now stands
totally liberates the claimant from all
restraints that held him in check earlier
from making a claim before Court from
the first time even where he had not made
any claom before the Collector and even
if he had made some claim the Section in
its new orientation gives him full liberty
to hike his claim before Court without
furnishing any reasons or affording an
explanation for making a lower claim
before the Collector".

8. There were two reasons assigned
to this conclusion. Firstly, Section 25(1)
of the un amended Act specifically
provided that the Court shall not award
the amount in excess so claimed but this
provision has been deleted and if this
provision was deleted, it will not be fair to
put similar restriction on the claim made
by a person before the Court under
reference under Section 18 of the Act.
The second reason is that the proceeding
before the reference Court under Section
18 of the Act is treated as an original
proceeding for the purpose of determining
market value afresh on the basis of the
material produced before it. The Supreme
Court
emphasized
this
aspect
in
Chimanlal Hargovinddas v. Special Land
Acquisition Officer. Poona, AIR 1988 SC
1652. The following principles were laid
down:-

"(1) A reference under Section 18 of the
Land Acquisition Act is not an appeal
against the award and the Court cannot
take into account the material relied upon
by the Land Acquisition Officer in his
Award unless the same material is
produced and proved before the Court.

(2) So also the Award of the Land
Acquisition Officer is not to be treated as
a judgment of the trial Court open or
exposed to challenge before the court
hearing the Reference. It is merely an
offer made by the Land Acquisition
Officer and the material utilised by him
for making his valuation cannot be
utilised by the Court unless produced and
1All] Harbans V. The State of U.P. & another
35
proved before it. It is not the function of
the court to sit in appeal against the
Award,
approve
or
disapprove
its
reasoning or correct its error or affirm,
modify or reverse the conclusion reached
by the Land Acquisition Officer, as if it
were an appellate Court.

(3) 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.

(4) 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. Of course the
materials placed and proved by the other
side can also be taken into account for this
purpose."

9. The principles laid down in
Chiminlal Hargovinddas's case had been
applied in various decisions vide Special
Tehsildar, Land Acquisition, Yerraguntla
v. Kamalagangi Reddy and others, AIR
1990
AP
124
and
Special
Land
Acquisition officer (NHW) Dharwar V.
Kallangouda, AIR 1994 Karnataka 112.

10. The Court while interpreting the
provisions of an amending Act has to
apply
the
principles
laid
down
in
Heydon's case (1584) 3 Co. Rep. 7a, p.
7b: 76 ER 637. Which is also known as
'Purpsive
Construction' or 'Mischief
rule'. The Court has to consider four
matters in construing such provision: (I)
What was the law before making of the
Act, (ii) what was the mischief for which
the law did not provide, (iii) What is the
remedy that the Act has provided, and (iv)
What is the reason of the remedy. The
rule then directs that the courts must
adopt that construction which "shall
suppress the mischief and advance the
remedy". The rule was explained in the
Bengal immunity Co. v. State of Bihar by
S.R. Das, C.J. as follows: " It is a sound
rule of construction of a statute firmly
established in England as far back as 1584
when Heydon's case was decided. The
Heydon's case was followed in various
decisions of this Court vide Dr. Waliram
Waman Hiray v. Mr. Justice B. Lentin Air
1988 SC 2267, CIT Oatiala v Shahzada
Nand & Sons AIR 1966 SC 1342, and
M/s Goodyear India Ltd. V. State of
Haryana AIR 1990 SC 781.

11. The provision of Section 25 of
the Land Acquisition Act was amended as
to permit the claimant to raise the dispute
before the reference Court as to the
amount irrespective of the claim he had
made before the Collector and even if he
had not made such claim he had made
before the Collector and even if he had
not made such claim he can make it
before the reference Court.

12. The parties are free to lead
evidence to prove the market rate. A
claimant might have made claim before
the Land Acquisition Officer on the basis
of his own ass3ssment without finding out
various exemplars when it receives notice
under Section 9 of the Act for submitting
the claim before the Land Acquisition
Officer but if he finds the exemplars and
other material evidence to show that the
value of the land is higher than what he
had claimed, the Court has to determine it
on the basis of the material evidence
produced before it and is not confined to
the confined to the claim as made before
the Collector.
36 INDIAN LAW REPORTS ALLAHABAD SERIES [2001
13.

Learned
council
for
the
respondent has relied upon the decision of
the Supreme Court in Ujjain Vikas
Pradhikaran
(Ujjain
Development
Authority) v. Tarachand and another,
judgement Today 1996 (7) SC 206,
wherein their Lordships observed that
even after the deletion of sub-section (2)
of Section 22 by amending Act 68 of
1984, it would be always open to a party
to claim a particular amount and having
claimed at that rate, the Court should not
allow compensation higher than the
amount
claimed
by
him
with
the
following observations:-

"It would be obvious that if one party
claims compensation at a particular rate,
he assesses the market value of the land at
that
particular
rate
and
seeks
compensation on that basis. Having
assessed
the
compensation
at
that
particular rate, the question emerges:
whether the Court could grant higher
compensation than was assessed by the
party? We find answer in the negative.
This principle squarely applied to the
facts in these cases. The party having
limited the compensation to Rs.20,000/-
per bigha in the memorandum of appeal
filed in the High Court, it would be
obvious that the respondents claimed that
they were entitled to the maximum of
compensation @ Rs.20,000/- per bigha."

14. In this case in the grounds of
appeal submitted before the High Court
the compensation was claimed at the rate
of Rs.20,000/- per bigha and the High
Court
enhanced
the
amount
of
compensation at the rate of Rs.26,000/-
per Bigha. It was not a case before the
Reference Court. The appellant himself
limited his claim before the High Court. It
was held that the High Court was not
entitled to enhance the compensation at a
rate
higher
than
claimed
in
the
memorandum of appeal. The claimant
before the Reference Court leads evidence
in regard to valuation of the land acquired
and when he files appeal before the High
Court he is fully aware of the materials on
the record in regard to valuation of the
acquired land and on appeal being filed
by him if he limits his claim, the High
Court, in both the circumstances, would
not be justified to enhance the value of the
property over and above the value fixed in
the memo of appeal. Here in the present
case higher claim was made before the
Reference Court and the parties led
evidence. The Reference Court itself
came to the conclusion on appraisal of
evidence that the market value of the land
war more than Rs.20,000/- per bigha and
there is no justification on the facts and
circumstances of the present case not to
award the amount at the market value as
assessed itself by the Reference Court.
The appellant shall be entitled to get
compensation at the rate of Rs20,000/-
per bigha from the respondents.

15. The next submission of the
learned counsel for the appellant is that he
is entitled to interest at the rate of 15% in
view of the amended provision of Section
28 of the Act. The Court has allowed
interest at 12% per annum from the date
of delivery of possession till the date of
award. It is contended that according to
the proviso to Section 28 of the Act where
Reference Court directs excess amount to
be paid and if such amount is paid after
the date of expiry of a period of one year
from the date on which the possession is
taken, the interest at the rate of 15% per
annum shall be paid from the date of
expiry of the said period of one year on
the amount of such excess or part thereof
1All] Raja Ram & another V. State of U.P. & others
37
which has not been paid into the
Court before the date of such expiry but
the appellant has not been awarded
interest at the rate of 15%. The proviso to
Section 28 of the Act leaves no discretion
to the Court to award interest less than
15% per annum. The appellant is
therefore entitled to interest at the rate of
15% on the amount determined by the
Court.

16. The last submission of the
learned counsel for the appellant is that
the Court has not awarded cost without
assigning any reason. Sub-section (2) of
Section 27 of the Act provides that when
the award of the Collector is not upheld
the cost shall ordinarily be paid by the
collector unless Court is of the opinion
that the claim of the applicant was so
extravagant or that he was so negligent in
putting his case before the Collector that
some deduction from his cost should be
made or he should pay a part of
collector's cost. In this case the appellant
had submitted the claim before the
collector at Rs.15,000/- per bigha but he
was awarded at the rate of Rs.10,303.05
per bigha and it has been enhanced to
Rs.15,000/- per bigha by the Court below,
the Court should have awarded the cost to
the appellant.

17. In view of the above the appeal
is allowed. The order of the reference
Court dated 30.5.1987 is modified. The
amount
of
compensation
shall
be
calculated by the reference Court keeping
in view the observation made above and
the decree shall be prepared accordingly.

18. The cost of this appeal shall
however, be borne by the parties.

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By the Court

The petitioners have come up with
following prayers:-

(i) To quash the Order dated
26.3.1998
passed
by
the