# Union of India & others v. Anil Kumar and others

- **Citation:** (2012) 3 ILRA 1413
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-10-12
- **Case number:** First Appeal No. 967 of 1999
- **Bench:** Sheo Kumar Singh, Arvind Kumar Tripathi (Ii
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/union-of-india-others-v-anil-kumar-and-others-42434
- **Pages:** 10

## Headnote

Act-Appeal
against
reference order-possession of land taken
in
the
year
1971-on
failure
of
negotiation
between
parties-as
per
direction of Court Notification under
Section 4 issued in the year 1971considering
exempler
by
reference
compensation enhanced from 1000/-per
square yard to 1200 per square yard-for
the
period
of
possession
without
notification
too
till
the
date
of
publication
of
notification-claimant
entitled
about
rent
for
use
and
occupation
with
9%
interest
and
thereafter to pay interest @ 15%-
accordingly order of reference Court
modified-appeal partly allowed.

Held: Para-27

In
this
case,
the Apex
Court
has
specifically held that in a case where a
land owner is dispossessed prior to issue
of earlier notification under section 4 (1)
of the Act, the Government merely take
possession of he land. It is fully open to
the land owner to recover compensation
of the land by taking appropriate legal
proceedings,
therefore,
he
is
only
entitled to get rent or damages for use
1414 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

and occupation for the area government
has taken possession of the property.
Where possession is taken prior to the
issues of the preliminary notification it
will be just and adequate that the
Collector may also determine rent or
damages for use of the property to each
of the land owner is entitled while
determining the compensation amount
payable to the land owner for the
acquisition for the property. As the
matter is too old hence it will not be
proper to remand the matter for such
determination. Hence we are of the view
that Collector be directed and is so
directed to determine such amount as
compensation for use and occupation of
the
land
from
the
date
of
taking
possession till the date of notification i.e.
01.07.1971 till 16.02.1997, within a
period of one year from producing a
certified copy of this order. If the
Collector fails to do so within that
period, then it will be open to the
claimants to resort to appropriate legal
action/remedy.
Case Law discussed:
AIR 2010 SC 2322; 2011 3 AWC 2650 SC;
(1995) 2 SCC 142; (2004) 4 SCC 79; (2004) 9
SCC 337; (2004) 9 SCC 344; (2005) 1 SCC
545; (2005) 12 SCC 443.

## Text

3 All] Union of India & others V. Anil Kumar and others

1413

- The direction given by Apex Court
in some of its authorities to insurance
companies
to
pay
the
amount
of
compensation to the victims/claimants in
cases other than those covered under 'third
party risk', with intent to do complete
justice between the parties in any cause or
matter pending before the Supreme Court
in its extraordinary jurisdiction vested
under Article 142 of the Constitution of
India would be binding in between the
parties of that cause or matter but can not
be taken as binding precedent in other
matters."

11. No other point was pressed,argued
or raised by the Counsel for Appellant.

12. In view of the above proposition
of law in the light of the fact of this case, the
appeal is allowed. The award is modified to
the extent that the amount of compensation
determined by the Tribunal shall be paid by
the Appellant Insurance Company and
recover the same from the owner or driver
of the vehicle in question, the respondent
no. 3 and 4, who are jointly and severally
liable to pay the compensation to claimant
respondent no. 1 and 2 by moving an
application before the Tribunal concern.

13. The amount deposited by the
Appellant Insurance Company in this court
including the statutory deposit be remitted
to the Tribunal concerned forthwith but not
later than a month. The Tribunal thereafter
will disburse the amount of compensation to
the claimant respondents no. 1 and 2 in
terms of the award within two months
thereafter.

14. There shall be no order as to costs.
---------

APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.10.2012

BEFORE
THE HON'BLE SHEO KUMAR SINGH, J.
THE HON'BLE ARVIND KUMAR TRIPATHI (II), J.

First Appeal No. 967 of 1999

Union of India & others
 ...Appellant
Versus
Anil Kumar and others ...Respondents

Counsel for the Petitioner:
Sri Subodh Kumar
S.C.

Counsel for the Respondents:
Sri A.K. Gupta

Land
Acquisition
Act-Appeal
against
reference order-possession of land taken
in
the
year
1971-on
failure
of
negotiation
between
parties-as
per
direction of Court Notification under
Section 4 issued in the year 1971considering
exempler
by
reference
compensation enhanced from 1000/-per
square yard to 1200 per square yard-for
the
period
of
possession
without
notification
too
till
the
date
of
publication
of
notification-claimant
entitled
about
rent
for
use
and
occupation
with
9%
interest
and
thereafter to pay interest @ 15%-
accordingly order of reference Court
modified-appeal partly allowed.

Held: Para-27

In
this
case,
the Apex
Court
has
specifically held that in a case where a
land owner is dispossessed prior to issue
of earlier notification under section 4 (1)
of the Act, the Government merely take
possession of he land. It is fully open to
the land owner to recover compensation
of the land by taking appropriate legal
proceedings,
therefore,
he
is
only
entitled to get rent or damages for use
1414 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

and occupation for the area government
has taken possession of the property.
Where possession is taken prior to the
issues of the preliminary notification it
will be just and adequate that the
Collector may also determine rent or
damages for use of the property to each
of the land owner is entitled while
determining the compensation amount
payable to the land owner for the
acquisition for the property. As the
matter is too old hence it will not be
proper to remand the matter for such
determination. Hence we are of the view
that Collector be directed and is so
directed to determine such amount as
compensation for use and occupation of
the
land
from
the
date
of
taking
possession till the date of notification i.e.
01.07.1971 till 16.02.1997, within a
period of one year from producing a
certified copy of this order. If the
Collector fails to do so within that
period, then it will be open to the
claimants to resort to appropriate legal
action/remedy.
Case Law discussed:
AIR 2010 SC 2322; 2011 3 AWC 2650 SC;
(1995) 2 SCC 142; (2004) 4 SCC 79; (2004) 9
SCC 337; (2004) 9 SCC 344; (2005) 1 SCC
545; (2005) 12 SCC 443.

(Delivered by Hon'ble Arvind Kumar
Tripathi-(II), J)

1. Heard learned counsel for the
parties and perused the record.

2. These four first appeals have
arisen out of the judgement and decree
dated 09.07.1999 passed by Additional
District Judge, Kanpur Nagar in Land
Acquisition Reference Case No. 64/70 of
1997 Anil Kumar and others vs. Union of
India and others and Land Acquisition
Reference Case No. 92/70 of 1997, Deoraj
and others vs. State of Uttar Pradesh and
others.

3. These two references were decided
by a single judgement and both state and
claimants have preferred their respective
appeals, hence all the cases are being taken
together.

4. Briefly stated, the claimants of the
two cases, are owners of land Khasra plot
No. 42 and 43 (area 0-17-10) which is
equal to 2144Sq. Yards situate in village
Shafipur, Kanpur Nagar, known as Lal
Banglow. The claimants of Misc. Case No.
64/70 of 97 Anil Kumar and others are the
owners of the above land to the extent of
2/3rd share while the claimant of Misc.
Case No. 92/70 of 97 are owners of 1/3rd
share. The possession of the above land is
said to have taken place some time in the
year 1971 for construction of the stadium
of Air Force and there was some talk about
the settlement of compensation and
exchange of land, but this could not be
finalised and the case went up to the High
Court. The High Court vide order dated
07.02.1996 passed in Civil Misc. Writ
Petition No. 23834 of 1995 directed the
State Government to acquire the above
land under the Land Acquisition Act.
Consequently,
the
notification
under
section 4 of the Land Acquisition Act was
issued on 16.02.1997 and notification
under section 6 of the Land Acquisition
Act was made on 18.03.1997. The formal
possession of the above land is alleged to
have been taken on 31.03.1997 and the
award was also made on 31.03.1997.In the
award the S.L.A.O. Kanpur Nagar found
the acquired land as potential for building
purpose and awarded compensation at the
rate of Rs. 1,000/- per sq. yard. Aggrieved
by this award the claimants filed this two
references, References Case No. 64/70 of
1997 Anil Kumar and others vs. Union of
India and others and Reference Case No.
3 All] Union of India & others V. Anil Kumar and others

1415
92/70 of 1997 Deoraj and others vs. State
of U.P. and others.

5. It has been alleged by the claimant
that the possession of the acquired land
was taken in the year 1969 and on the land
there were 45 Sheesham Trees. They
claimed the market value of the acquired
land to be Rs. 5,000/- on the date of
notification and the alleged compensation
is insufficient and inadequate. It has been
further alleged that the acquired land is
situate at the heart of Lal Banglow which
is highly modernised commercial area
abutting to Jajmau area internationally
famous for leather and leather goods. It
was also alleged that the land was
surrounded by roads, markets etc. and on
account of dispossession the claimant have
suffered a loss and have not been properly
awarded interest and solatium.

6. Opposite parties no. 1, 2 and 4
filed common written statement and denied
the allegations advanced in the claim
petition. But admitted that the acquisition
proceedings started as per direction of the
Hon'ble High Court in Writ Petition No.
23834 of 1995 and Khasra plots No. 42
and 43 were acquired under the Land
Acquisition Act. They further alleged that
the compensation awarded by the S.L.A.
O. Kanpur is sufficient and adequate and
alleged that the acquired land is far from
Kanpur City and as such the claimants not
entitled for any additional amount.

7. Opposite party No. 3 filed their
separate written statement and denied the
allegations advanced in the claim petition
and
alleging
that
the
compensation
awarded by the S.L.A.O. Kanpur is
sufficient and proper.

The learned court below framed
following issue:-

1. Whether the compensation award
is inadequate, if yes, at what rate they are
entitled to get compensation of the
acquired land.

2. On which date possession was
claimed by the Government of India and
what will be its effect.

3. Whether claimants have not been
paid compensation for the Sheesham trees
situated in the plot, if yes, then to what
amounts the claimants are entitled.

4. To what relief if any claimants are
entitled.

8. The learned court below after
considering the oral and documentary
evidence held that the market value of the
acquire land was Rs. 1,200/- per sq. yard
on the date of notification and thus
compensation awarded is insufficient and
inadequate. While deciding issue no. 2
learned court below held that possession of
the land acquired is taken in the year 1971
and the acquisition was made later on at
the direction of the Hon'ble High Court
and thus the claimants are entitled for 12%
additional amount on the market value of
the acquired land from the date of
possession i.e. 01.07.1991 till the date of
notification
i.e.
16.02.1997.
While
deciding issue no. 3, the court below
opined that it has not been proved that
there were Sheesham trees in the plot, so
they are not entitle for any compensation
for the trees as alleged in the claim
petition. In view of the above findings,
issue No. 1 to 4 were decided accordingly.
1416 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

9. Feeling aggrieved by findings
recorded by the reference court on issue
no. 1, 2, 3 and 4, Anil Kumar and others
have filed First Appeal No. 971 of 1999,
Deo Raj and others has filed First Appeal
No. 963 of 1999 and State of U.P. has filed
First Appeal No. 966 of 1999 and First
Appeal No. 967 of 1999.

10. It was argued from the side of
Union of India that the learned judge has
wrongly and illegally ignored the exemplar
sale deed filed by them to the adjoining
plot and also wrongly relied upon sale
deed which is situated at a distance of
more than one Km. for the purpose of
enhancing valuation from Rs. 1,000/- to
Rs. 1,200/-. It was also argued that the
learned lower court has erred in law in
calculating the compensation and by
giving 12% interest from the date prior to
the notification under section 4, because
the collector has no jurisdiction to take into
consideration any matter relating to the
land acquisition prior to notification under
section 4/17 of the Land Acquisition Act.
The possession contemplated under section
23(1) (a) of the Land Acquisition Act
denotes the date of taking possession in
pursuance of Notification and not prior to
that period. Taking possession under the
Land acquisition Act cannot be construed
to be anything done or any happening
which took place before the Notification.

11. Learned counsel of Anil Kumar
and Deoraj argued that the learned court
below was wrong as per calculating the
mean of the value given of exemplar relied
by the Union of India and one of which
learned court below has relied. He has
further argued that from that mean,
decrease of amount by Rs. 50/- is not
according to law.

12. From the discussion and
argument above, following points are to be
decided:-

1. What can be the method of
calculation
for
calculating
the
compensation?

2. What remedy is available to the
claimants, if the possession has been taken
prior to the date of notification.

13. A perusal of the impugned
judgement reveals that the building
potentiality of the acquired land has not
been disputed by acquiring body or the
State. On the other hand, S.L.A.O. himself
was of the opinion that the acquired land
was situated in developed locality and as
such he awarded Rs. 1,000/- per sq. yard
compensation being market value of
acquired land. The claimants have alleged
that the acquired land is situated abutting
Kanpur-Lucknow Highway. They have
further alleged in para 10 of the claim
petition that the acquired land is situated
within the Municipal Limits of Kanpur
City and at the heart of Lal Banglow,
highly modernised Commercial market
abutting to Jajmau area. Even Tayyab
Khan, Amin as D.W.1 from the side of
Union of India has accepted that towards
west of the acquired land there are houses,
shops and bye-pass. Towards east side
there is a link road, which connects to the
G.T. Road. Towards north side a road and
after that Vihar Colony, a sub-post-office
is there and towards south there is Bangali
Colony. Towards east also Air force gate
and office are there.

14. In view of this, the reference
court was right in holding that the acquired
land possessed building potentiality on the
date of notification.
3 All] Union of India & others V. Anil Kumar and others

1417

15. The S.L.A.O. has awarded the
compensation at the rate of Rs. 1,000/- per
sq. yard. The claimants have claimed
compensation at the rate of Rs. 5,000/- per
sq. yd. Claimants have filed several lease
and three sale deeds to prove the market
value of the acquired land.

16. First sale deed was executed by
Bhopendra Singh in favour of Onkar Nath
Tripathi in respect of Khasra plot No. 369,
area 88 sq. yard of village Muzaffarpur,
Kanpur,
which
was
transferred
on
27.09.1995. The reference court has not
relied upon this exemplar as the sale deed
relates to the land of another village
Muzaffarpur, Kanpur, while the acquired
land is situated in village Shafipur.
Another sale deed was filed which was
executed by Thakurdin Jaiswal in favour of
Smt. Meena Gupta in respect of Khasra
plot No. 167, area 144 sq. yd. With some
construction over it for consideration of
Rs. 3, 20,000/- on 27.11.1996. In this deed
the cost of construction has been shown a
Rs. 1,02,000/- and the cost of land was
shown as Rs. 2,18,000/- This goes to show
the market value of the land to be Rs.
1,500/- per sq. yd. Another sale deed was
executed by Radhakrishna Pal in favour of
Shyam Kishan Ram in respect of house no.
115, area 160 sq. yd. Of village Shafipur
for consideration of Rs. 2,25,000/- on
27.11.1992. The court below has rejected
this exemplar as this transaction took place
much before the date of notification.

17. What the court below has done
that it accepted the mean of the two
transactions, one relied by S.L.A.O. and
another of the sale deed by Thakurdin
Jaiswal in favour of Smt. Meena Gupta.
Thus, court below come to figure of Rs.
1250/- per sq. feet and by abundant
caution, he further decreased the amount
by 50% and decided the market value as
Rs. 1200/- per sq. yd. On the date of
notification.

18. Both the parties have challenged
this market value.

19. It has been mentioned itself in the
judgement that possession of the above
land is said to have been taken some time
in the year 1971 for construction of the
stadium of Air force and there was some
talk about the compensation and exchange
of land between the parties, but this could
not be finalised and the matter went up to
the High Court and the High Court
directed the State Government to acquire
the above land under the Land Acquisition
Act. Consequently, the notification under
section 4 of the Land Acquisition Act was
issued on 16.02.1997 and notification
under section 6 of the Land Acquisition
Act was made on 18.03.1997 and the
formal possession of the above land has
been shown to be taken on 31.03.1997.
These circumstance clearly goes to show
that at the time of notification of land has
already been used for stadium. This fact
has
also
to
be
considered
while
determining the market value of the land.

20. In the case of Special Land
Acquisition Officer vs. Karigowda &
others AIR 2010 SC 2322, the Apex Court
has held that :-

"By development of law, the Courts
have
adopted
different
methods
for
computing the compensation payable to
the land owners depending upon the facts
and circumstances of the case. The Courts
have been exercising their discretion by
adopting different methods, inter alia the
following
methods
have
a
larger
acceptance in law;
1418 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

(a)
Sales
Statistics
Method:
in
applying this method, it has been stated
that, sales must be genuine bona fide,
should have been executed at the time
proximate to the date of notification under
section 4 of the Act, the land covered by
the sale must be in the vicinity of the
acquired land and land should be
comparable to the acquired land. The land
covered under the sale instance should
have similar potential and occasion as that
of the acquired land.

(b) Capitalization of Net Income
Method; This method has also been
applied by the Courts. In this method of
determination
of
market
value,
capitalization of net income method or
expert opinion method has bee applied.

(c ) Agriculture Yield Basis Method:
Agricultural yield of the acquired land
with reference to revenue records and
keeping in mind the potential and nature of
the land wet (irrigated), dry and barren (
banjar).
Normally,
where
the
compensation is awarded on agricultural
yield or capitalization method basis, the
principle of multiplier is also applied for
final determination. These are broadly the
methods which are applied by the Courts
with further reduction on account of
development charges. In some cases,
depending upon the peculiar facts, this
Court has accepted the principle granting
compound increase at the rate of 10% to
15% of the fair market value determined in
accordance with law to avoid any unfair
loss to the claimants suffering from
compulsive acquisition. However, this
consideration should squarely fall within
the parameters of S. 23 while talking care
that the negative mandate contained in S.
24 of the Act is not offended. How on or
any of the principles afore stated is to be
applied by the Court, would depend on the
facts and circumstances of a given case."

21. In case of Anjani Molu Dessai
vs. State of Goa and another 2011 3 AWC
2650 SC, the Apex Court has held that :-

"The legal position is that even where
there are several exemplars with reverence
to similar lands, usually the highest of the
exemplars,
which
is
a
bona
fide
transaction, will be considered. Where
however there are several sales of similar
lands whose prices range in a narrow
bandwidth, the average thereof can be
taken, as representing the market price. But
where the values disclosed in respect of
two sales are markedly different, it can
only lead to an inference that they are with
reference to dissimilar lands or that the
lower value sale is on account of undervaluation or other price depressing reasons.
Consequently
averaging
can
not
be
resorted to."

22. The above discussion of above
case clearly goes to show that if there are
several sales of similar lands whose price
range in narrow bandwidth, average
thereof is to be taken. In the present case,
the exemplar relied upon by the S.L.A.O.
was Rs. 1,000/-per sq. yard and one relied
upon by the reference court was of Rs.
1,500/- per sq. feet, so the value disclosed
in the two sales are markedly different.

23. From the above discussion, we
are of the view that the sale deed relied
upon by the S.L.A.O. ought to have been
refused for consideration and the sale deed
executed by Thakurdin Jaiswal in favour of
Smt. Meena Gupta should have been taken
into account.
3 All] Union of India & others V. Anil Kumar and others

1419

24. From the above discussion, we
are of the view that method used by the
reference court was wrong and the market
value should have been Rs. 1,500/- per sq.
yard and we thus decide the market value
of Rs. 1,500/- per sq. yard. Union of India
has cited several rulings to show that the
claimant are entitled to interest on
additional amount from the period of date
of section 4 (1) notification and not from
the date of taking possession. Union of
India has relied upon Special Tahsildar
(LA), P.W.D. Schemes, Vijayawada vs.
M.A. Jabbar (1995) 2 SCC 142, R.L. Jain
(D) By LRS vs. DDA and others (2004) 4
SCC 79, Lila Ghosh (Smt.) (Dead)
through LR. Tapas Chandra Roy vs. State
of W.B (2004) 9 SCC 337, State of Bihar
and another vs. Kedar Sao and Another
(2004) 9 SCC 344, Ahad Brothers vs.
State of MP. And another (2005) 1 SCC
545 and Land Acquisition Officer & Asstt
Commissioner
and
another
vs.
Hemanagouda and others (2005) 12 SCC
443.

25. It is admitted that the possession
was taken prior to the date of notification.
So it is to be examined as to what remedy
was available to the claimants and whether
the reference court has erred in granting
interest from the date of possession.

26. The case of R.L. Jain vs. DDA
and others (supra) is Full Bench decision.
In this case, it has been held in para 11, 12
and 12 that :-

11-"In order to decide the question
whether the provisions of Section 34 of the
Act regarding payment of interest would be
applicable to a case where possession has
been taken over prior to issuance of
notification under section 4 (1) of the act,
it is necessary to have a look at the scheme
of the Land Acquisition Act. Acquisition
means taking not by voluntary agreement
but by authority of an Act of Parliament
and by virtue of the compulsory powers
thereby conferred. In case of acquisition
the property is taken by the State
permanently and the title to the property
vests in the State. The Land Acquisition Act
makes complete provision for acquiring
title over the land, taking possession
thereof and for payment of compensation
to the land owner. Part II of th Act deals
with acquisition and the heading of Section
4
is
"
Publication
of
preliminary
notification
and
powers
of
officers
thereupon". Sub-section (1) of Section 4
provides that whenever it appears to the
appropriate Government that land in any
locality is needed or is likely to be needed
for any public purpose or for a company, a
notification to that effect shall be published
in the Official Gazette and in two daily
newspapers circulating in that locality and
the Collector shall cause public notice of
the substance of such notification to be
given at convenient places in the said
locality. Sub-section (2) provides that
thereupon it shall be lawful for any officer
either generally or specially authorised by
such Government in this behalf and for his
servants and workmen, to enter upon and
survey and take levels of any land in such
locality, to dig or bore in the subsoil and to
do all other acts necessary to ascertain
whether the land is adapted for such
purpose, etc. etc. This provision shows that
the officers and servants and workmen of
the Government get the lawful authority to
enter upon and survey the land and to do
other works only after the preliminary
notification under Section 4 (1) has been
published. Section 5-a enables a person
interested in any land which has been
notified under Section 4 (1) to file
objection against the acquisition of the
1420 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

land and also for hearing of the objection
by the Collector. If the State Government is
satisfied, after considering the report, that
any particular land is needed for public
purposes or for a company, it can make a
declaration to that effect under Section 6 of
the Act and the said declaration has to be
published in the Official Gazette and in
two daily newspapers and public notice of
the substance of such declaration has to be
given in the locality. Thereafter the
Collector is required to issue notice to
persons interested under Section 9(1) of
the Act stating that the Government intends
to take possession of the land and that
claims to compensation for all interests in
such land may be made to him. Section 11
provides for making of an award by the
Collector of the compensation which
should be allowed for the land. Section 16
provides that when the Collector has mad
an award under Section 11, he may take
possession of the land which shall
thereupon
vest
absolutely
in
the
Government, free from all encumbrances.
This provision shows that possession of the
land can be taken only after the Collector
has made an award under Section 11.
Section 17 is in the nature of an exception
to Section 16 and it provides that in cases
of urgency, whenever the appropriate
Government so directs, the Collector,
thought no such award has been made,
may, on the expiration of fifteen days from
the publication of the notice mentioned in
Section 9 (1), take possession of any land
needed for a public purpose and such land
shall thereupon vest absolutely in the
Government, free from all encumbrances.
The urgency provision contained in
Section 17 (1) can be invoked and
possession can be taken over only after
publication of notification under Section 9
(1) which itslef can be done after
publication of notification under Section 4
(1) and 6 of the Act. Even here in view of
sub-section (3-A) the Collector has to
tender 80 per cent of the estimated amount
of
compensation
to
the
persons
interested/entitled thereto before taking
over possession. The scheme of the Act
does not contemplate taking over of
possession prior to the issuance of
notification under Section 4 (1) of the Act
and if possession is taken prior to the said
notification it will be dehors the Act. It is
for this reason that both Sections 11 (1)
and 23 (1) enjoin the determination of the
market value of the land on the date of
publication of notification under Section 4
(1) of the Act for the purpose of
determining the amount of compensation
to be awarded for the land acquired under
the Act. These provisions show in
unmistakable terms that publication of
notification under Section 4 (1) is the sine
qua non for any proceedings under the Act.
Section 34 of the Act, on the basis whereof
the appellant laid claim for interest, reads
as under:

"34. Payment of interest- When the
amount of such compensation is not paid
or
deposited
on
or
before
taking
possession of the land, the Collector shall
pay the amount awarded with interest
thereon a the rate of nine per centum per
annum for the time of so taking possession
until it shall have been so paid or
deposited:

Provided that if such compensation or
any part thereof is not paid or deposited
within a period of one year from the date
on which possession is taken, interest at
the rate of fifteen per centum per annum
shall be payable from the date of expiry of
the said period of one year on the amount
of compensation or part thereof which has
3 All] Union of India & others V. Anil Kumar and others

1421
not been paid or deposited before the date
of such expiry."

12- The expression "that Collector
shall pay the amount warded with interest
thereon at the rate of nine per centum per
annum from the time of so taking
possession until it shall have been so paid
or deposited" should not be read in
isolation divorced from its context. The
words "such compensation" and " so
taking possession" are important and have
to be given meaning in the light of other
provisions of the Act. "Such compensation"
would mean the compensation determined
in accordance with other provisions of the
Act, namely, Sections 11 and 15 of the Act
which by virtue of Section 23 (1) means
market value of the land on the date of
notification under Section 4 (1) and other
amounts like statutory sum under subsection (1-A) and solatium under subsection (2) of Section 23. The heading of
Part II of the Act is "Acquisition" and there
is a sub-heading " Taking Possession"
which contains Sections 16 and 17 of the
Act. The words "so taking possession"
would therefore mean taking possession in
accordance with Section 16 or 17 of the
Act. These are the only two sections in the
Act which specifically deal with the subject
of taking possession of the acquired land.
Clearly, the stage for taking possession
under the aforesaid provisions would be
reached only after publication of the
notification under Section 4 (1) and 9 (1)
of the Act. If possession is taken prior to
the issuance of the notification under
Section 4 (1) it would not be in accordance
with Section 16 or 17 and will be without
any authority of law and consequently
cannot be recognised for the purposes of
the Act. For parity of reasons the words
"from the date on which he took possession
of the land" occurring in Section 28 of the
Act would also mean lawful taking of
possession in accordance with Section 16
or 17 of the act. The word "so taking
possession" can under no circumstances
mean such dispossession of the owner of
the land which has been done prior to
publication of notification under Section 4
(1) of the Act which is dehors the
provisions of the Act.

13- In Union of India vs. Budh Singh
(1995) 6 SCC 235 after analysis of the
provisions of the Act the Bench arrived at
the following conclusions: (SCC P. 236,
para 5)

"The parameter for initiation of the
proceedings is the publication of the
notification under Section 4 (1) of the Act
in the State Gazette or in an appropriate
case in District Gazette as per the local
amendments. But the condition precedent
is publication of the notification under
Section 4 (1) in the appropriate gazette.
That would give legitimacy to the State to
take possession of the land in accordance
with the provisions of the Act. Any
possession
otherwise
would
not
be
considered to be possession taken under
the Act."

27. In this case, the Apex Court has
specifically held that in a case where a land
owner is dispossessed prior to issue of
earlier notification under section 4 (1) of
the Act, the Government merely take
possession of he land. It is fully open to the
land owner to recover compensation of the
land
by
taking
appropriate
legal
proceedings, therefore, he is only entitled
to get rent or damages for use and
occupation for the area government has
taken possession of the property. Where
possession is taken prior to the issues of
the preliminary notification it will be just
1422 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

and adequate that the Collector may also
determine rent or damages for use of the
property to each of the land owner is
entitled
while
determining
the
compensation amount payable to the land
owner for the acquisition for the property.
As the matter is too old hence it will not be
proper to remand the matter for such
determination. Hence we are of the view
that Collector be directed and is so directed
to determine such amount as compensation
for use and occupation of the land from the
date of taking possession till the date of
notification i.e. 01.07.1971 till 16.02.1997,
within a period of one year from producing
a certified copy of this order. If the
Collector fails to do so within that period,
then it will be open to the claimants to
resort to appropriate legal action/remedy.

28. As of discussion above, all four
appeals are liable to be partly allowed.

29. F.A. No. 961 of 1999 and F.A.
No. 963 of 1999 are partly allowed. The
claimants
shall
be
entitled
for
a
compensation of Rs. 1,500/- per sq. yard
being the market value of the acquired
land. The claimants shall be further entitled
for 30% solatium on the enhanced amount.

30. Claimants are further awarded
9% interest on excess amount that has been
found due by this Court and that has not
been paid by the S.L.A.O., Kanpur Nagar,
from
the
date
of
notification
i.e.
16.02.1997 till the period of one year and
after the expiry of the above period,
claimants are further entitled for 15% p.a.
interest on the above excess sum which has
been found due by this court and which has
not been awarded by the S.L.A.O. Kanpur
Nagar till the date of payment under
section 28 of Land Acquisition Act.

31. F.A. No. 966 of 1999 and F.A.
No. 967 of 1999 are also partly allowed.
The 12% additional amount of the market
value from 01.07.1971 to 16.02.1997 i.e.
from the date of taking possession to the
date of notification which has been
allowed
by
the
reference
court
is
disallowed and instead, claimants are
entitled to rent/damages as determined by
Collector Kanpur Nagar, as directed above.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 08.10.2012

BEFORE
THE HON'BLE DINESH GUPTA, J.

FIRST APPEAL No. - 1006 of 2000

Sri Vikas Pandey

 ...Applicant
Versus
Smt. Vandita Gautam
 ...Respondents

Counsel for the Petitioner:
Sri Rajesh Tandon
Sri Komal Mehrotra
Sri Manoj Kumar Sharma
Sri Some Narayan Mishra

Counsel for the Respondents:
Sri P.K. Jain

Hindu Marriage Act, 1955-Section-18Maintenance-whether a divorced wifepossessing much better financial and
academic position than the husbandcompetent to maintain herself-entitled
to claim maintenance? held-"No"

Held: Para-18

The word 'unable' means that a person is
not able to do what he is supposed to do.
In the present matter, it is not a case
that the wife is an illiterate lady or is not
in a position to do any job, on the
contrary the wife is highly educated
particularly more than the husband and