# / v. Shyam Sundar and others

- **Citation:** (2007) 1 ILRA 147
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006-08-04
- **Case number:** First Appeal No. 851 of 1992
- **Bench:** Prakash Krishna
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/v-shyam-sundar-and-others-40809
- **Pages:** 7

## Headnote

Land Acquisition Act, 1989, Section 23
(1)-Compensation-referance
court
awarded Rs.50,000/- towards damagewithout discussion of evidence-held not
proper-only
after
satisfactory
proof
incurred expences-on account of change
148 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
of residence or the place of Business
Rs.10,000/- held proper.

Held: Para 16

From the earlier part of the judgment it
is clear that the only evidence worth the
name
is
own
affidavit
wherein
he
assessed the damages at Rs.75,000/-.
The reference court was of the opinion
that
as
the
said
affidavit
is
uncontroverted, therefore, reliance can
be placed upon it. It is difficult to
approve the above approach of the
reference court. The reference court was
not justified in awarding damages for
rehabilitation being not admissible in
law. At the most inciden1al expenses
that too on production of satisfactory
evidence could have allowed under
Clause 5 of Section 23 (1). Interestingly
it may be noted that the said affidavit
has not been made part of the Paper
Book. During course of the argument,
the
learned
counsel
for
the
claimant/respondent chosen not to place
or refer even the said affidavit from
record before the I Court. In this view of
the
matter
there
is
practically
no
evidence
to
show
that
the
claimant/respondent has incurred such a
huge expenses on account of change of
residence and place of busineses, which
may be incidental to such change.
Case law discussed:
J.T. 2001 (10) SC-200
2005 (58) ALR-477
J.T. 2003 (5) SC-160
1998 (2) SCC-467
1996 (2) SCC-62

## Text

1 All] U.P. Avas Evam Vikas Parishad V. Shyam Sundar and others
147
60 days or refused approval in writing, it
would mean that such order of suspension
ceases to exist in eyes of law after expiry
of 60 days. Full Bench of this Court
further held that the power of the District
Inspector of Schools to approve such
suspension after 60 days is not lost.
However,
if
approval
is
granted
subsequently by the District Inspector of
Schools, the suspension would revive
from the date the approval is granted.
Meaning thereby that for the interregnum
i.e. the period between the date when 60
days expired and the date approval is
granted in writing, it is presumed that the
order of suspension was not existing in
the eye of law. Accordingly for this
interregnum period Principal or teacher
cornered is entitled to payment of full
salary as well as for being permitted to
continue in the office.

20. The legal position in that regard
has also been explained by the Court in
the judgment reported in 1992 (2)
UPLBEC 132 and 1994 (23) ALR 334.

21. In the facts of the case, there is
no order of District Inspector of Schools
approving the suspension of the Principal
of the institution. Consequently the order
of suspension passed by the Committee of
Management ceases to exist in the eyes of
law after expiry of 60 days of its being
communicated and therefore, the principal
of the institution becomes entitled for full
salar for the period subsequents to expiry
of 60 days form the date he was placed
under suspension. Accordingly it is
provided that the principal of the
institution shall be entitled to his full
salary for the period the order of
suspension was non-existent in the-eyes
of law i.e. 28th August, 2005 till the
conclusion of the proceedings by the U.P.
Secondary Education Services Selection
Board as directed herein above.

22. Till such decision by the U.P.
Secondary Education Services Selection
Board as aforesaid, the Principal of the
institution shall be entitled to his full
salary, it shall be open to the Committee
of Management of the institution to take
work or not to take work of the post of
principal from the petitioner.

23.

With
the
aforesaid
directions/observations, both the writ
petitions are disposed of finally.
Petition Disposed of.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.08.2006

BEFORE
THE HON'BLE PRAKASH KRISHNA, J.

First Appeal No. 851 of 1992

U.P. Avas Evam Vikas Parishad

...Opposite Party/Appellant
Versus
Shyam Sundar and others

...Opposite Party/Respondents

Counsel for the Appellant:
Sri P.K. Singhal
Sri V.K. Barman
Sri Pankaj Barman

Counsel for the Respondents:
Sri Faujdar Rai
Sri C.K. Rai

Land Acquisition Act, 1989, Section 23
(1)-Compensation-referance
court
awarded Rs.50,000/- towards damagewithout discussion of evidence-held not
proper-only
after
satisfactory
proof
incurred expences-on account of change
148 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
of residence or the place of Business
Rs.10,000/- held proper.

Held: Para 16

From the earlier part of the judgment it
is clear that the only evidence worth the
name
is
own
affidavit
wherein
he
assessed the damages at Rs.75,000/-.
The reference court was of the opinion
that
as
the
said
affidavit
is
uncontroverted, therefore, reliance can
be placed upon it. It is difficult to
approve the above approach of the
reference court. The reference court was
not justified in awarding damages for
rehabilitation being not admissible in
law. At the most inciden1al expenses
that too on production of satisfactory
evidence could have allowed under
Clause 5 of Section 23 (1). Interestingly
it may be noted that the said affidavit
has not been made part of the Paper
Book. During course of the argument,
the
learned
counsel
for
the
claimant/respondent chosen not to place
or refer even the said affidavit from
record before the I Court. In this view of
the
matter
there
is
practically
no
evidence
to
show
that
the
claimant/respondent has incurred such a
huge expenses on account of change of
residence and place of busineses, which
may be incidental to such change.
Case law discussed:
J.T. 2001 (10) SC-200
2005 (58) ALR-477
J.T. 2003 (5) SC-160
1998 (2) SCC-467
1996 (2) SCC-62

(Delivered by Hon'ble Prakash Krishna, J.)

1. Present appeal arises out of Land
Acquisition Reference No.8 of 1989 and
is directed against the award of Civil
Court dated 24th August, 1991, passed by
the learned Addl. District Judge, Ballia,
whereby he granted compensation of 0.09
acres of land at the rate of Rs.1,80,000/-
per
acre,
out
of
which
claimant/respondent no. 1 is entitled to
3/8 of it; the compensation for trees and
construction at Rs.97,500/- and damages
under Clauses (4) and (5) of Section 23
(1) of the Land Acquisition Act at
Rs.50,000/- together with interest and
solatium etc.

2. Feeling aggrieved against the
aforesaid award, the acquiring body has
preferred the above appeal under Section
54 of the Land Acquisition Act 1894.

3. The land was acquired for the
benefit of the appellant by i~uing a
notification dated 8th March, 1980 under
Section 28 of the U.P. Avas Vikas
Parishad Adhiniyam, read with Section 4
of the Land Acquisition Act. By means of
the aforesaid notification 0.9 acres of land
m village Madhavpur was acquired,
which includes plot no. 195 area 0.09
acres. Claimant/respondent no. 1 is the
Asami of the said plot no. 195. It is not in
dispute that being Asami, he was entitled
and
has
been
rightly
granted
compensation at the rate of 3/8 of the total
compensation awarded by the reference
court. The possession of the said plot was
taken on 25th March, 1980 and the award
passed by the Land Acquisition Officer is
dated 22nd September, 1986. It is
common case of the parties that the
aforesaid land was acquired for the
scheme known as Harpur Q Bhumi Vikas
Evam Grah Sthan Yojna. The reference
court as noted above enhanced the
compensation by the order under appeal,

4. Feeling aggrieved against the
aforesaid enhancement made by the
reference court the present appeal is at the
instance
of
U.P.Avas
Evam
Vikas
Parishad.
1 All] U.P. Avas Evam Vikas Parishad V. Shyam Sundar and others
149
5. Sri V.K. Burman, learned Senior
Counsel appearing for the Parishad has
challenged the judgment of the reference
court only on the following two points:-

6. Firstly, the rate of compensation
granted to the claimant/respondent is
towards higher side. In other words the
reference court has granted compensation
over and above the market value of the
land thus acquired. Elaborating the
argument it was submitted that there is no
evidence on record to show the cost
escalation of the land in the village.
Elaborating the argument it was submitted
that
while
determining
the
final
compensation the reference court has
made deduction at the rate of 25% on
account of the bulk acquisition, while it
should have been at the rate of 300/0.
Secondly,
he
submitted
that
the
compensation awarded to the tune of
Rs.50,000/- under Clauses 4 and 5 of
Section 23 (1) of the Land Acquisition
Act, (para 13 of the judgment of the
reference court) is unjustified and is not
tenable in law. There being no reliable or
cogent evidence that the claimant has
suffered damages to the tune of Rs.
50,000/- by reason of the acquisition
which injuriously affected the earnings
and compelled the claimants to change
their residence and place of business. In
contra, the learned counsel for the
claimant/respondent no. 1 placed reliance
upon the judgment of the reference court
in support of his submission.

7. The first point which falls for
determination is with regard to the
question of amount of compensation
towards acquisition of plot no. 195,
measuring 0.09 acres. The reference court
under issue no. 1 has noted that as many
as 41 sale deeds were produced m respect
of the lands lying in village Madhavpur
within a period of three years prior to the
date of notification. It has treated the two
sale deeds dated 10th May, 1977 and 14th
February,
1978
as
exemplars
for
determination of the compensation of the
market value of the land in question. It
has rightly taken into account the
aforesaid two sale deeds in as much as the
sale deeds are with respect to the land,
which has been acquired under the
notification. The learned Senior Counsel
has not disputed for treating these two
sales deeds as exemplars. His argument is
that on the basis of the sale deed of 10th
May, 1977, the market value of the land
comes to Rs.1,54,000/- per acre and it
comes to Rs. 1,84,000/- per acre on the
basis of subsequent sale deed, dated 14th
February, 1978. Elaborating the argument
he
submitted
that
there
was
no
justification for the reference court to take
into consideration any increase in the
price of the land. The said argument is not
correct on the facts and circumstances of
the case. Undoubtedly the aforesaid two
sale deeds are with respect to the land
acquired under the notification and prior
to three years of the relevant notification,
which is dated 8th March, 1980. The
reference court has rightly concluded on
the basis of two sale deeds that the
escalation in the price of the land is well
established. In the present case even the
Land Acquisition Officer did not doubt or
dispute the genuineness and correctness
of the aforesaid two sale deeds. He
rejected the subsequent sale deed of the
year 1978, which gives the market value
of the land at Rs.1,84,000/- per acre on
the ground of guess, conjectures and
surmises as it is for higher price. The
reference court having it found that the
aforesaid two sale deeds depict true and
honest sale transactions, in my view was
150 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
justified to draw an inference that there is
price escalation of the land in the village
and has rightly fixed the market value of
the land at the rate ofRs. 2,40,000/- per
acre as on the relevant date i.e. in the year
1980. It may be noted here that after
fixation the aforesaid market value of the
l~d at Rs.2,40,000/- per acre, it has
reduced it by 25% on account of bulk
acquisition and finally determined the
market value at the rate of Rs. 1,80,000/-
per acre. At this place, the argument of
the learned counsel for the appellant that
there should have been deduction of 30%
or more is to be considered. He has placed
reliance upon the following judgments of
the Apex Court in support of his
submission:-

8. K.S. Shivadevamma and others
Vs. Assistant Commissioner and Land
Acquisition Officer and another (1996)
2 Supreme Court Cases 62. In this case
it was held that extent of deduction for
development charges depends upon the
development needed in each case. This
case is distinguishable on the facts and
has no application to the controversy
involved in the present appeal. In this
very case it was noted by the Apex Court
in para 10 of the judgment that as a
general rule for laying of the roads and
other amenities 33.33% is required to be
deducted. Where development has already
taken place appropriate deduction needs
to be made. It has been further noted that
situation as existed on the date of
notification and other relevant facts as on
that day has to be taken into account.
Considering these facts and also the
situation of the land in question, it is
evident in the case in hands the land
acquired
was
Abadi
of
the
claimant/respondent no.l. His residential
house was indisputably existed on the
land in question. The plot in question was
already
being
used
for
residential
purposes. The area in question was not an
undeveloped area. The next case relied
upon is U.P. Avas Evam Vikas Parishad
Vs. Jainul Islam and another (1998) 2
Supreme Court Cases 467, wherein it
was held that deduction of 1/3 of the
value of land towards cost of development
was
justified
on
the
ground
for
determining the market value of a large
property on the basis of the sale
transaction
for
small
properties
a
deduction should be given. In this very
case, the Apex Court has noted its other
decision also, wherein the deduction of
25% was also justified. To the same effect
is Ravindra Narain and another Vs.
Union of India IT 2003 (5) SC 160
wherein it was held that exemplars of
small plots can not be said to be safe
criteria, however, in appropriate cases in
the absence of other material such
instances may be used for determination
of compensation after making reasonable
deductions. To the same effect is Hans
Rai
Sharma
Vs.
Collector
Land
Acquisition 2005 (58) ALR 477.

9. Coming to the facts of the present
case the total land kquired is itself is not a
big area, but a small area measuring 0.90
acres. In other words it is less than one
acre ad admitted by the learned counsel
for the parties. Out of it the area of the
land acquired of respondent no. 1 is 0.09
acres. It comes to 1/10 of the total area
acquired. The exemplars which have been
relied upon referred to above are also of
the small areas, i.e. for 0.065 acres and
0.0475 acres, as mentioned in para 8 of
the judgment. In this view of the matter
there was no justification in making
deduction of 25% on account of bulk
acquisition. Taking into consideration the
1 All] U.P. Avas Evam Vikas Parishad V. Shyam Sundar and others
151
entire facts and circumstances of the case,
the fixation of the market value at Rs.
1,80,000/- by the reference court can not
be said to be unjustified. It has taken into
account the potentiality of the land
acquired. A reference can be made to a
judgment of Apex Court in Land
Acquisition
Officer
Vs.
Morisetty
Satyanarayana and others IT 2001 (10)
SC 200, wherein it has been held as
follows:-

"It is true that normally while
fixing the market price of the land under
acquisition, when the sale instances are
for small piece of land then appropriate
reduction is required to be made while
fixing the market price of the land under
acquisition. However, in the present
case, the land which is acquired is out of
the same survey number. Various sale
deeds produced on record reflect the
increase in price of the portions of land
of the same survey number. Other
evidence on record indicates that in the
village there is increase in market price
of land during the relevant years.
Therefore, considering the increasing
trend of the market price and the fact
that small pieces of land owned by
different persons are acquired, this
would not be a fit case for reducing the
amount on the ground that relevant sale
deed is for a small piece of land."

10. There is thus, no legal infirmity
in the judgment of the reference court, so
far as it relates to grant of compensation
at the rate of Rs.1,80,000/- per acre, out of
which the claimant has been held to be
entitled being Asami at 3/8 of it. The fIrst
point is decided accordingly.

11. The next point urged by the
learned counsel for the appellant is with
regard to the grant of compensation
amounting to Rs.50,000/- under section
23 (1) Clause 4 and 5 towards damages,
under issue no.2. The claimants claimed
Rs.
75,000/as
damages
under
the
aforesaid clauses on the ground that the
acquisition of the land has injuriously
affected their earnings and they were
compelled to shift their place of residence
and business. It is established on the
record that at the time of acquisition the
claimants were residing in their house
existing on the land which has been
acquired. Obviously acquisition of land
and the house compelled them to shift to
other place. The question which arises
whether under such circumstances any
amount as compensation can be granted
under Clause 4 and 5 of Section 23 (1) of
the Land Acquisition Act. Clause 4
provides that while determining the
compensation to be awarded for the land
acquired under the Act. Court shall also
take into account the damages if any
sustained by the person interested at the
time of the Collectors's taking possession
of the land.

12. The said Clause reads as
follows:-

"fourthly, the damages (if any)
sustained by the person interested, at the
time of the Collector's taking possession
of the land, by reason of the acquisition
injuriously affecting his other property,
movable or immovable, in any other
manner, or his earnings."

13. Neither there is any evidence nor
there is any pleading or fmding by the
court below that by reason of taking
possession of the land in question any
other property of the claimants has been
152 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
affected in any manner, or his earning has
been suffered.

14. Learned counsel for the
claimant/respondent tried to justify the
award of Rs.50,000/- as compensation
under this head with reference to Clause 5
of the aforesaid Section 23 (1) of the Act.

15. The said Clause reads as
follows:-

"fifthly, if, in consequence of the
acquisition of the land by the Collector,
the person interested is compelled to
change his residence or place of business
the
reasonable
expenses
(if
any)
incidental to such change."

This clause refers to the payment of
reasonable expenses, if any, incidental to
change, if in consequence of acquisition
of the land by the Collector, the person
interested is compelled to change his
residence and place of business. Words
"incidentally
to
such
change"
are
important. It means the only expenses of
removal can be admissible under this
Head. There is no evidence on record to
show that the expenses, if any, borne by
the claimants on account of the change of
his residence or place of business. In the
absence of material to show that the
claimant has incurred expenses for taking
his new residence for starting business at
new place, the reference court was not
justified in awarding a sum of Rs.50,000/-
as compensation under the aforesaid
provision. The judgment of th w lacks
discussion of relevant facts on this issue
without making any reference to the
relevant facts and circumstances, in a
cursory manner, it has awarded a sum of
Rs.50,000/- The relevant portion from the
judgment of the reference court is
reproduced below:-

"Unfortunately, there is nothing on
record to show as to what is the status of
the claimants and other property owned
by them. It is also not shown that the
claimants were doing some other business
ever prior to the acquisition. In fact, no
cross version has been put about the
damage caused to the claimants as
envisaged in fifth clause of section 23. In
the circwnstances I have no reason to
reject the only evidence in this respect.
The claimants have, however, claimed
Rs.25000/- as damages for change of
residence and Rs. 50,000/- as damages for
rehabilitation. The damages on account of
rehabilitation necessarily include change
of residence. The damages for the same
event can not be granted only because a
circwnstances can be defmed in two
separate words. I, therefore, hold that the
claimants are entitled to Rs.50,000/- only
as damages for rehabilitation and are not
entitled to any additional damages for
change of residence."

16. From the earlier part of the
judgment it is clear that the only evidence
worth the name is own affidavit wherein
he assessed the damages at Rs.75,000/-.
The reference court was of the opinion
that
as
the
said
affidavit
is
uncontroverted, therefore, reliance can be
placed upon it. It is difficult to approve
the above approach of the reference court.
The reference court was not justified in
awarding damages for rehabilitation being
not admissible in law. At the most
inciden1al
expenses
that
too
on
production of satisfactory evidence could
have allowed under Clause 5 of Section
23 (1). Interestingly it may be noted that
the said affidavit has not been made part
1 All] Rama Shankar Singh and others V. U.P. Rajya Vidhyut Utpadan Nigam and others
153
of the Paper Book. During course of the
argument, the learned counsel for the
claimant/respondent chosen not to place
or refer even the said affidavit from
record before the I Court. In this view of
the matter there is practically no evidence
to show that the claimant/respondent has
incurred such a huge expenses on account
of change of residence and place of
busineses, which may be incidental to
such change.

17. Looking to the facts and
circunstances of the case, this Court is of
the opinion that a sum of Rs.10,000/- by
way of token should be awarded towards
expenses which was incidental to change
of residence and place of business. The
judgment of the reference court is
modified
accordingly.
In
place
of
Rs.50,000/- granted under Section 23 (1)
of the Act it is held that the claimants are
entitled for a sum of Rs.10,000/- only.

18. In the result the appeal is
allowed in part and the judgment of the
court below is modified by reducing the
amount of compensation awarded under
Section 23 (1) Clause 4 and 5 to Rs.
10,000/- only. The remaining part of the
judgment is confirmed. No order as to
costs.

Appeal Allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.08.2006

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 18340 of 2004

Rama Shankar Singh and others

...Petitioners
Versus
U.P. Rajya Vidhyut Utpadan Nigam Ltd.,
Lucknow and others ...Respondents
Counsel for the Petitioners:
Sri Vinod Sinha
Sri S.P. Singh

Counsel for the Respondents:
Sri R.D. Khare
Sri Anil Kumar Mehrotra

U.P. Intermediate Education Act, 1921Chapter III-Reg. 21-as amended by
Notification
6.1.2005-Retirement
age
principal, teachers working in recognized
Inter College-run by U.P.R.V.U. Nigamwhether their service conditions shall be
governed
by
the
provisions
of
Intermediate Education Act 1921 or by
U.P. Rajya Vidyut Parishad Siksha Seva
Niyamawali 1995? Held-provisions of
Regulation 21 Chapter III shall govern
the recognized educational Institutions
also-teacher
and
the
Head
of
the
institution will retire at the age of 62
years as amended by Notification dated
6.1.2005.

Held: Para 21 & 23

In this view of the matter, I am clearly of
the view that Regulation 21 Chapter III
as
amended
by
notification
dated
6.1.2005
is
applicable
to
Teachers,
Principles and Head Masters of all
recognized institutions whether aided or
unaided and otherwise contention of the
learned counsel for the respondents is,
therefore rejected.

In the result the writ petition is allowed.
The impugned notice dated 12.1.2004
communicating the petitioners regarding
their retirement on attaining the age of
58 years is quashed and the respondents
are directed to permit the petitioners to
continue in service in accordance with
Regulation
21
Chapter
III
of
the
Regulations framed under Intermediate
Education Act. 1921 as amended by
notification dated 6.1.2005.
Case law discussed:
AIR 1930 O.P.C.-120, AIR 1951 SC-41, AIR
1953 SC-58, AIR 1957 SC-121, AIR 1964 SC1230, AIR 1969 SC-530, AIR 1988 SC-782, 4