# Kondiba Dagadu Kadam v. Savitribai

- **Citation:** (2008) 2 ILRA 380
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-03-13
- **Case number:** First Appeal No.47 of 1980
- **Bench:** S.U. Khan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kondiba-dagadu-kadam-v-savitribai-41183
- **Pages:** 4

## Headnote

Act-principle
for
determination of market value-sale deed
executed after 40 days of Notificationrelied
by
revisional
Court-held-not
proper-uniform deduction 25% comes
Rs.5.70 per square yard instead of 7.62/-
with proportionate interest and solatium
thereon.

Held: Para 9

Accordingly, in my opinion, an uniform
deduction of 25% is the most informed
guess, which may be made in this case.
The rate of Rs.7.62/- (of the exemplar)
deducted by 25% comes to Rs.5.72/-,
which is rounded off to Rs.5.70/- per
square yard.
Case law discussed:
AIR 1996 SC 3140, AIR 1997 SC 3889, AIR
1997 SC 2664, AIR 1998 SC 781, AIR 1998 SC
1028, AIR 1999 SC 317, AIR 2002 SC 1105,
AIR 2006 SC 447, AIR 1933 Bombay 361, AIR
1997 SC 3889, 2007 AIR SCW 7835, AIR 2007
SC 740, AIR 2005 SC 355, AIR 2004 SC 1031,
AIR 2003 SC 202,

## Text

380 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
under Section 100 C.P.C. For ready
reference, extract of paragraph no.7 of the
case of Veerayee Ammal Vs. Seeni Ammal
(2002) I SCC, 134 is quoted below:

"7. .....We have noticed with distress
that despite amendment, the provisions of
Section 100 of the Code have been
liberally
construed
and
generously
applied by some Judges of the High
Courts with the result that objective
intended to be achieved by the amendment
of Section 100 appears to have been
frustrated. Even before the amendment of
Section 100 of the Code, the concurrent
finding of facts could not be disturbed in
the second appeal. This Court in Paras
Nath Thakur Vs. Mohani Dasi held: (AIR
p.1205 para 3).
It is well settled by a long series of
decisions of the Judicial Committee of the
Privy Council and of this Court, that a
High Court, on second appeal, cannot go
into questions of fact, however, erroneous
the findings of fact recorded by the courts
of fact may be. It is not necessary to cite
those decisions. Indeed, the learned
counsel for the plaintiff-respondents did
not and could not contend that the High
Court was competent to go behind the
findings of fact concurrently recorded by
the two courts of fact."

12. Similar view has been expressed
in a number of other decisions by the
Apex Court in the cases of Thiagarajan
and others Vs. Sri Venugopalaswamay B.
Koil and others, JT 2004 (5) SC, 54,
Rajeshwari Vs. Puran Indoria (2005) 7
Supreme Court Cases, 60, Gurdev Kaur
and others Vs. Kaki and others 2006
All.C.J. (Supreme Court) 1481 and
Kondiba Dagadu Kadam Vs. Savitribai
Sopan Gujar and others (1999) 3
Supreme Court Cases, 722.
13. The Apex Court in the recent
case of Santosh Hazari Vs. Purshottam
Tiwari, (2001) 3 SCC, 179, ruled that a
point of law which admits of no two
opinions may be preposition of law but
cannot be a substantial question of law.
To be 'substantial' a question of law must
be debatable, not previously settled by
law of the land or a binding precedent,
and must have a material bearing on the
decision of the case, if answered either
way, in so far as the rights of the parties
before it are concerned. It will, therefore,
depend on the facts and circumstances of
the each case whether a question of law is
substantial one and involved in the case or
not? The same view has been expressed
by the Apex Court in the case of Govinda
Raju Vs. Mariamman (2005) 2 Supreme
Court Cases, 500.

14. In view of the aforesaid
decisions and after going through the
entire record, I do not find any substantial
question of law worth consideration in the
instant appeal. I am satisfied that the civil
court has no jurisdiction and the findings
recorded by the two courts do not call for
any interference. The instant second
appeal lacks merit and is, accordingly,
dismissed with costs.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.03.2008

BEFORE
THE HON'BLE S.U. KHAN, J.

First Appeal No.47 of 1980

State
of
U.P.
through
Collector,
Saharanpur

...Appellant
Versus
Mohd. Ashik Khan
...Respondent
2 All] State of U.P. through Collector, Saharanpur V. Mohd. Ashik Khan
381
Counsel for the Appellant:
Sri Surya Nath Upadhyaya
S.C.

Counsel for the Respondent:

Land
Acquisition
Act-principle
for
determination of market value-sale deed
executed after 40 days of Notificationrelied
by
revisional
Court-held-not
proper-uniform deduction 25% comes
Rs.5.70 per square yard instead of 7.62/-
with proportionate interest and solatium
thereon.

Held: Para 9

Accordingly, in my opinion, an uniform
deduction of 25% is the most informed
guess, which may be made in this case.
The rate of Rs.7.62/- (of the exemplar)
deducted by 25% comes to Rs.5.72/-,
which is rounded off to Rs.5.70/- per
square yard.
Case law discussed:
AIR 1996 SC 3140, AIR 1997 SC 3889, AIR
1997 SC 2664, AIR 1998 SC 781, AIR 1998 SC
1028, AIR 1999 SC 317, AIR 2002 SC 1105,
AIR 2006 SC 447, AIR 1933 Bombay 361, AIR
1997 SC 3889, 2007 AIR SCW 7835, AIR 2007
SC 740, AIR 2005 SC 355, AIR 2004 SC 1031,
AIR 2003 SC 202,

(Delivered by Hon'ble S.U. Khan, J.)

1. Even after 24 years of elevation
of learned counsel for the respondent,
respondent did not engage any other
counsel. Notices issued to the respondent
to engage another counsel returned unserved. Accordingly, only arguments of
learned counsel for the appellant were
heard.

2. This appeal is directed against
judgment,
award
and
decree
dated
26.05.1979
given
by
V
A.D.J.,
Saharanpur in L.A. Case No.56 of 1973.
It appears that 25 claimants, whose lands
had
been
acquired
under
Land
Acquisition Act being dissatisfied with
the award of S.L.A.O., applied for making
reference under Section 18 of Land
Acquisition Act. Accordingly, references
were made. It appears that all the
references were registered as one case, i.e.
L.A. Case No.56 of 1973. This appeal is
confined to the claim of the respondent
Mohd. Ashik Khan.

3. A large area of land of about 33
bighas (81279 squire yards) was acquired.
Notification under Section 4 of Land
Acquisition Act was issued/ published on
20.11.1968. Land was situate in village
Pathan Pura, Saharanpur appurtenant to
main Saharanpur-Delhi Road. Land was
acquired for construction of residence for
various
categories
of
Government
Servants at Saharanpur.

4. Special Land Acquisition Officer
for determining the market value of the
land placed reliance upon sale deed dated
03.11.1968 in respect of 344 squire yards
of land for Rs.2500/-, situate in a
residential colony called Vinay Nagar.
The rate comes to about Rs.7.62/- per
squire yard. Copy of this sale deed was
filed before reference court also. S.L.A.O.
divided the acquired land into two belts.
In the belt adjacent to the road, 40 %
deduction from the aforesaid rate of
Rs.7.62/- per squired yard was made and
in the other belt, 50% deduction was
made. Through the impugned judgment,
award and decree, learned A.D.J. awarded
uniform rate of Rs.6.70/- per squire yard.

5. As far as awarding uniform rate is
concerned, no fault can be found in view
of the following authorities:-
382 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
1.
AIR 1996 SC 3140 "Ram Piari v.
Land Acquisition Collector, Solan"
2.
AIR 1997 SC 3889 "Karan Singh
v. Union of India"
3.
AIR 1997 SC 2664 "Meharban v.
State of U.P."
4.
AIR
1998
SC
781
"Land
Acquisition Officer, Revenue Divisional
Officer, Chittoor v. L. Kamalamma"
5.
AIR 1998 SC 1028 "U.P. Avas
Evam Vikas Parishad v. Jainul Islam"
6.
AIR 1999 SC 317 "Kanwar Singh
v. Union of India"
7.
AIR 2002 SC 1105 "Kashiben
Bhikabai v. Special Land Acquisition
Officer"
8.
AIR 2006 SC 447 "Union of India
v. Harinder Pal Singh"

However, the principle adopted for
determining the market value by the
learned A.D.J. cannot be approved.
Copies of about 15 sale deeds had been
filed before the learned A.D.J., however
learned A.D.J. placed reliance upon a sale
deed dated 30.12.1968, i.e. executed after
40 days of notification under Section 4 of
Land Acquisition Act. The learned A.D.J.
placed reliance upon AIR 1933 Bombay
361 to hold that post Section 4
notification, sale deed could also be relied
upon. Through the said sale deed, an area
of more than 11000 squire yards land was
sold @ Rs.6.70/- per squire yard.

6. The Supreme Court AIR 1997 SC
3889 "Karan Singh v. Union of India"
has held that only in rare cases sale deed
executed after notification under Section
4 of Land Acquisition Act can be relied
upon. One of such situations, where such
sale deed can be relied upon, is where no
sale deed of the land in the area in
question during last three years from
notification under Section 4 of Land
Acquisition Act is available.

7. The S.L.A.O. had applied the
deduction percentage of 40-50. When
exemplar is of small area in comparison
to the total area, some deduction is
necessary.
However,
percentage
of
deduction varies from 10% to 50%. (vide
2007 AIR SCW 7835 "Atma Singh Vs.
State of Haryana," AIR 2007 SC 740
"Deputy Direction of Land Acquisition
Vs. Malla Atchinaidu", AIR 2005 SC
355 "Ahad Brothers, M/s. v. State of
M.P.", AIR 2004 SC 1031 "L.A.O.,
Kammarapally Village (A. P.), v.
Nookala Rajamallu", AIR 2003 SC 202
"Kasturi v. State of Haryana"). In the
first authority of Atma Singh, 10%
deduction was applied.

8. In the instant case, the exemplar,
even though of a small area, was of a land
situate in a residential colony, which must
be containing roads etc. and the amount
for which the said plot was sold must
have taken care of aspect of development
to some extent.

9. Accordingly, in my opinion, an
uniform deduction of 25% is the most
informed guess, which may be made in
this case. The rate of Rs.7.62/- (of the
exemplar) deducted by 25% comes to
Rs.5.72/-, which is rounded off to
Rs.5.70/- per squire yard.

10. Accordingly, appeal is allowed
in part. Impugned judgment, award and
decree is modified and it is held that
claimants are entitled to the compensation
taking the market value of the acquired
land at the relevant time to be Rs.5.70/-
per squire yard. Impugned judgment
modified
accordingly.
Proportionate
2 All] Ram Nayan Singh and another V. State of U.P. and others
383
interest and solatium shall be paid at the
rates awarded in the impugned judgment.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.03.2008

BEFORE
THE HON'BLE V.M. SAHAI, J.
THE HON'BLE R.N. MISRA, J.

Civil Misc. Writ Petition No. 45321 of 2004

Ram Nayan Singh & others ...Petitioners
Versus.
State of U.P and others ...Respondents

Counsel for the Petitioners:
Sri V.K. Singh
Sri G.K. Singh

Counsel for the Respondents:
S.C.

Constitution
of
India,
Art.
300-AConstruction of Road-over private land
of citizen-without adopting recourse of
law without consent of recorded tenure
holder-held-illegal-unconstitutional
collector either to pay full compensation
at the market rate within 4 months with
30% solatium and interest @ 12% or to
give back the possession by dismasting
the road-court expressed deep concern
regarding
illegal
approach
of
the
authorities.

Held: Para 13

In view of our above discussions, we
allow the writ petition and direct the
Collector,
Azamgarh
to
pay
compensation to the petitioners for their
land on which road has been constructed
within a period of four months from the
date, a certified copy of this order is
produced before him. While assessing
the compensation, the Collector will give
opportunity to the petitioners to produce
evidence and then decide the market
value of the land on the date of taking
possession. The petitioners will also be
given solatium on the market value at
the rate of 30% and interest @ 12 % per
annum
from
the
date
of
taking
possession till the date of payment. If
the compensation is not paid within the
said period, the petitioners will be given
back
possession
of
their
land
by
dismantling the road.
Case law discussed:
1999(1) AWC 661, 2004(4) SCC 79, 2005(2)
SCC 126, 2004( 2) UPLBEC 1820, (Civil Misc.
Writ Petition No. 46187 of 2000 decided on
25.2.2004), 2008(2) ADJ 476

(Delivered by Hon'ble V.M. Sahai, J.)

1. The petitioners have come up
before this Court for wrongful act of the
respondents in taking away their land
against the provisions of law. They have
claimed compensation and damages for
their dispossession from the land.

2. We have heard Sri G.K. Singh,
learned counsel for the petitioners and
learned
Standing
Counsel
for
the
respondents.

3. The facts disclosed in the writ
petition show that the petitioners were
owners of plots mentioned in para 4 to 8
of the writ petition separately and
different portion of different plots were
taken away by the respondents for the
construction of Lalganj by-pass Road on
Azamgarh-Varanasi highway. No legal
procedure was adopted by the respondents
in taking away the land of the petitioners.
The compensation awarded was also
nominal. The land of the petitioners was
taken in the year 1986 as disclosed in para
20
of
the
writ
petition,
but
the
compensation has not been paid so far.
The
Executive
Engineer,
PWD,
Azamgarh had proposed compensation at