JUDGMENT
Krishna Moorthy, J
1. This is an Appeal by the Assistant Commissioner and Land Acquisition Officer, Sedam District, Gulbarga, against the Award of the Land Acquisition Court in L.A.C.No. 73 of 1981. The Appeal came up for admission and the Appeal was admitted by us. When the learned Government Advocate moved for stay of execution of the decree, the respondent who had already entered appearance, opposed the same and with the consent of the parties, we heard the Appeal itself finally.
2. This case relates to the acquisition of 13 acres and 6 guntas of land on Sy.No. 913 in the limits of Sedam for the purpose of distribution as house sites by the Town Municipal Council, Sedam. The Preliminary Notification under Section 4(1) of the Land Acquisition Act was on 27.9.1973 and the award of the Land Acquisition Officer was on 31.1.1979, Possession was taken even before Section 4(1) Notification was issued. The Land Acquisition Officer awarded a compensation of Rs. 700/- per acre which was enhanced by the Land Acquisition Court to Rs. 10,000/- per acre with all consequential benefits. It is this award that is challenged by the appellant on the ground that the methodology adopted by the Land Acquisition Court in fixing the land value in the case is against the principles of law and that the land was only a tenanted land at the time of Section 4(1) Notification and the value should have been awarded accordingly.
3. As stated earlier, both the parties adduced evidence before the Land Acquisition Court and as, against the award of the Land Acquisition Officer at Rs. 700/- per acre, the Court enhanced the same to Rs. 10,000/- per acre. No evidence in regard to the price of comparable lands was adduced by the claimant. The land was acquired for laying a layout for distribution of house sites among various persons of the locality. The lower Court relied on Ex.P.4 which is a list of sale of 26 plots of 40′ x 60′ size by way of public auction. This auction was done in 1982 of the very same acquired land after making a layout in the land. The Land Acquisition Court came to the conclusion from Ex.P.4 that the average of highest and lowest prices of plots comes to Rs. 1,35,000/- which works out to approximately at Rs. 50/- per sq.yd. which comes to Rs. 2,42,000/- per acre. The land was acquired on 27.9.1973, whereas, the plots were sold in auction in the month of March, 1982 and there is a difference of 9 years between the date of Section 4(1) Notification and the sale in auction by the Town Municipal Council. Taking into account the lapse of time from the date of Section 4(1) Notification and the date of auction, the Land Acquisition Court adopted a reverse process and calculated the value as on 1973 based on the value of the lands fetched in 1982. He granted an appreciation of 10% per annum and deducted 90% of the value as on 1982 – for 9 years. He deducted another 53% for formation of a layout and came to the conclusion that the amount so calculated wilt come to Rs. 11,200/- per acre. Consequently, he fixed the market value of the acquired land at Rs. 10,000/- per acre, it is further found by the Land Acquisition Court that there is no evidence on behalf of the claimant or on behalf of the respondent with regard to the market value of comparable lands having building potentiality at the time in and around the date of Section 4(1) Notification. It is the correctness of this basis that is challenged by the appellant.
4. After hearing the learned Government Advocate for the appellant as also the learned Counsel for the Respondent, we are firmly of the opinion that the method adopted by the Land Acquisition Court is erroneous and against the principles laid down by the Supreme Court. It is to be noted that there is absolutely no evidence adduced by the claimant to prove the market value as on the date of Section 4(1) Notification. He has not produced any comparable sale deeds for ascertaining the market value as on that date. The Land Acquisition Court has fixed the value on the basis of the value fetched for the land in 1982 after a layout was formed and the property was divided into house-plots. This method of valuation has been deprecated by the Supreme Court in ADMINISTRATOR GENL. OF WEST BENGAL v. COLLECTOR, VARANASI 1. . Their Lordships of the Supreme Court followed the dictum laid down in STATE OF U.P. v. MAJ. JITENDER KUMAR 2. , and held at page 948:
“It is true that the sale deed Ext. 21 upon which the High Court has relied is of a date three years later than the Notification under Section 4 but no material was produced before the Court to suggest that there was any fluctuation in the market rate at Meerut from 1948 onwards till 1951 and if so to what extent. In the absence of any material showing any fluctuation in the market rate the High Court thought it fit to rely upon Ex.21 under which the Housing Society itself had purchased land in the neighbourhood of the land (in) dispute. On the whole we are not satisfied that any error was committed by the High Court in relying upon the sale deed Ex. 21…….”
But this principle could be appealed to only where there is evidence to the effect that there was no upward surge in the prices in the interregnum. The burden of establishing this would be squarely on the party relying on such subsequent transaction. In the present case appellant did not endeavour to show that between the date of preliminary notification i.e., 4.7.1959 and the date of Ext. 24 i.e., 18.8.1960 there was no appreciation in the value, of land in the area. Therefore, Ext. 24 cannot be relied upon as affording evidence of the market value as on 4.7.1959. We cannot accept the argument that the price indicated in Ext. 24 should be accepted after allowing an appropriate deduction for the possible appreciation of the land values during the period of one year. Apart from other difficulties in this exercise, there is no evidence as to the rate and degree of appreciation in the values of land so that the figure could be jobbed backwards from 14.7.1960 to 4.7.1959.”
5. In the above case, Their Lordships did not accept even the sale deed executed one year after the date of Section 4(1) Notification, whereas, in this case, the sale which is relied by the Land Acquisition Court is nearly 9 years after the acquisition and Judicial notice can be taken note of the fact that the prices of the lands are going up year by year and in these circumstances, the Land Acquisition Court erred in basing its decision on the value of the land in 1982. Moreover, the Land Acquisition Court has fixed the price of the land as on 1973 by jobbing backwards the price fetched in 1982 which the Supreme Court has held to be a wrong principle. Moreover, the prices fetched in 1982 cannot be taken into account, for, after the very acquisition, a layout was formed and the plots were sold and there is increase in the price due to the acquisition itself. In such circumstances, such sales also cannot be taken into account by virtue of Section 24 (clause fifthly) which says that the Court shall not take into consideration any increase to the value of the land acquired likely to accrue from the use to which it will be put when acquired.
6. Learned Counsel for the respondent-claimant alternatively contended that Section 4(1) Notification in this case was on 27.9.1973 and the award was passed only on 31.1.1979, nearly after a period of 5 1/2 years and in such circumstances, compensation can be fixed on the basis of the land value at least on the date of the award. In support of his contention, he relied on the Decision of this Court in PATEL BYRAPPA AND ORS. v. STATE OF KARNATAKA AND ORS 3. ., as confimed in W.A.No. 1688 of 1989 4. State of Karnataka v. P. Byrappa. He also relied on two Decisions of the Supreme Court in BIHAR STATE HOUSING BOARD, STATE OF BIHAR AND ORS. v. BAN BIHARI MAHATO AND ORS., and UJJAIN VIKAS PRADHIKARAN v. RAJ KUMAR JOHRI AND ORS 6. ., and also a Decision of the PUNJAB AND HARYANA Full Bench reported in RADHEY SHAM GUPTA AND ORS. v. STATE OF HARYANA AND ORS 7. ., it is to be noted that, in all these Cases, the very acquisition was challenged and in peculiar circumstances of the case, the Court directed the Land Acquisition Officer to fix the market value at a later date than the date under Section 4(1) Notification. It is also pertinent to note the observation of the Division Bench of this Court in W.A.No. 1688 of 1989, which is to the following effect:
“Accordingly, we dismiss the Writ Appeal. However, what we have observed now is purely for the purpose of this Writ Appeal and it will have no bearing on the compensation to be fixed by the Civil Court on the reference made under Section 18 of the Act.”
7. The above observation of the Division Bench makes it clear, that the Court while deciding a Reference under Section 18 of the Act, has to comply with the provision of the Land Acquisition Act. This Court is exercising jurisdiction in the matter under the provision of the Land Act and cannot ignore the provision contained in Section 23 that in determining the amount of compensation to be awarded, the Court shall take into consideration the market value of the land on the date of publication of the Notification under Section 4(1) of the Land Acquisition Act. While this Court is exercising jurisdiction under the provisions of the Land Acquisition Act, it has no jurisdiction to give a go by to the mandatory provisions contained in the aforementioned Section.
8. In Bihar State Housing Board, State of Bihar and others v. Ban Bihari Mahato and others5. Their Lordships of the Supreme Court, in the peculiar facts and circumstances of the case, decided that the compensation for the acquisition should be paid as if the acquisitions were made as on 1.3.1988. In Ujjain Vikas Pradhikaran v. Raj Kumar Johri and Ors., in the facts and circumstances of the case, though the Notification under Section 4(1) was in 1985, Their Lordships of the Supreme Court, held that the Notification under Section 4(1) of the Land Acquisition Act shall be deemed to have been on 1.1.1988 and directed the authorities to fix the compensation accordingly. No principle or guideline is mentioned in the aforesaid Decision as to how the date of Section 4(1) Notification shall be advanced and to what extent. They must be confined to the fact of those cases alone. Learned Counsel for the respondent laid great stress on the recent Decision of the Supreme Court in RAM CHAND AND ORS. v. UNION OF INDIA AND ORS 8. . In that case, an award was passed nearly 14 to 21 years after the Notification under Section 4(1) of the Land Acquisition Act and after elaborately considering the matter, came to the conclusion that some additional compensation has to be awarded to the cultivators. Taking into consideration the interest of the cultivators and the public, instead of quashing the proceedings for acquisition, Their Lordships directed that the petitioners shall be paid an additional amount of compensation to be calculated at the rate of 12% per annum after the expiry of two years from 23.8.1974, the date of the Judgment in AFLATOON AND ORS. v. LT. GOVERNOR OF DELHI AND ORS. 9. , till the date of the making of the awards by the Collector, to be calculated with reference to the market value of the lands in question on the date of the notifications under Sub-section (1) of Section 4. In that case, Their Lordships did not advance the date of Notification under Section 4(1) but granted an additional compensation by way of interest, in the peculiar facts and circumstances of the case and in view of the fact that, nearly 14 to 21 years have elapsed between the date of Section 4(1) Notification and the Award. In that Decision, from paragraph 4 it is clear that their Lordships exercised their power under Article 142 of the Constitution of India which is very wide and can be exercised in the ends of Justice. That also was a case wherein acquisition proceedings were itself challenged and Their Lordships exercised their power under Article 142 of the Constitution of India. Article 142 of the Constitution of India gives wide powers to the Supreme Court to pass such decree or make such orders as is necessary for doing complete Justice in any case or matters pending before it and they shall be enforceable throughout the territory of India. That power can be exercised only by the Supreme Court, but the High Courts are not vested with such a power and the High Courts are bound by the provisions contained in Section 23 of the Land Acquisition Act. It can thus be seen that the orders were passed by the Supreme Court in exercise of their power under Article 142 of the Constitution of India which this Court is not entitled to do.
9. That apart, if we go by the Land Acquisition Amendment Act, 68/84, the time taken in this case for passing the award cannot be said to be unreasonable. Though the amended provisions may not be applicable to the case in question, the provision made therein, fixing the time limit for making declaration under Section 6 as also for making an award after the declaration are relevant in considering as to whether there was unreasonable delay in passing the award or not. By the amending Act, a Proviso was added to Section 6 that no declaration in respect of any land covered by Notification under Sub-section (1) of Section 4 of the Act published after the commencement of the Land Acquisition (Amendment and Validation) Ordinance Act, 1 of 1967 and before the commencement of the Land Acquisition Act, 1984, beyond a period of three years from the date of the publication of the Notification. By Section 11-A it was further provided that the Collectors shall make an award under Section 11 within a period of two years from the date of the publication of the declaration and if no award is made within that period, the proceedings for the acquisition of the land shall lapse. It is pertinent to note that, no time limit was prescribed for making declaration under Section 6 or passing of the Award before the Amendment Act. But it is to be made within a reasonable time and under the amendment act, the Legislature has granted a period of 5 years between the date of Section 4(1) Notification and the passing of the Award. In this case, the Notification under Section 4(1) was published on 27.9.1973 and the Award was passed on 31.1.1979. In other words, time lag between the Notification under Section 4 and the Award is only 5 years and four months which cannot be said to be unreasonable when there was no time limit prescribed under the Land Acquisition Act as it existed then. In that view of the matter also, we do not think that there is any force in the contention raised by the learned Counsel for the respondent that the date of Notification under Section 4(1) shall be advanced in this case to 1979, the date of the Award.
10. As we have taken the view that the claimants are not entitled to any enhancement in the land value, the question as to whether the land was only a tenanted land at the time of Section 4(1) Notification does not arise for consideration and we leave the same open.
In the result, we allow this Appeal and set aside the Judgment and Award dated 19.6.1993 passed by the learned Addl. Civil Judge, Gulbarga, in L.A.C.No. 73 of 1981 and reject the Reference made under Section 18 of the Land Acquisition Act.
Parties shall bear their own costs in this Appeal.