R.K.Mahajan, J. - (1.) THIS is a writ peti tion filed by the petitioner for issuance of the a writ in the nature of certiorari quash ing the impugned orders dated 22-9-1987 and 2-3-1992 (Annexure Nos. 2, 4 and 5 respectively to the writ petition) passed by respondent Nos. 4, 2 and 4 respectively. It has been further prayed that the respon dents be commanded not to give effect to the aforesaid impugned orders.
(2.) IN order to understand the con troversy involved in this case the following dates are relevant: -Notification under Section 4 of the Land Acquisition Act was issued on 8-9-1975. -Notification under Section 6 read with Section 17 of the Land Acquisition Act was issued on 8-9-1975. -The Writ petition which was filed to challenge the notifications was dismissed on 10-3-1978. -Possession of the land to the petitioner was transferred on 22-3-1978. -Award by the S.L.A.O. was passed on 22-9-86 after hearing the objections of both the parties. -An application was moved on behalf of Krishi Utpadan Mandi Samiti, Mauranipur, Dis trict Jhansi for the purpose of referring the matter of the Court for determination of compensation on 29-1-1987. -On 23-6-1987 application aforesaid was rejected by the Land Reforms Commissioner. -On 4-8-1988 reference was made by the Collector under Section 30 of the Land Acquisi tion Act pertaining to the dispute of claim of compensation by respective share holders. Case was registered as Misc. Case No. 188 of 1988. Collector moved an application before the Dis trict Judge seeking return of reference. -On 19-11-1988 reference under Section 30 returned to the Collector, Jhansi by the District Judge, Jhansi. -Writ Petition was filed by respondent and it was decided on 19-3-1991 with a direction to the Collector, Jhansi to decide the matter of appoint ment within six months. It appears that Notification under Section 4 and of the Land Acquisition Act, 1894 (hereinafter referred to as the Act) were issued acquiring 19 plots measuring 46.83 acres in Village Maukhas, Tehsil and Pargana Mauranipur, District Jhansi for the construction of market yard. It appears that the writ petition was filed by the respondent earlier and stay order was granted on 25-9-1975 and it remain operative till 1-3-1978. Possession was also taken by Mandi Samiti on 22/24-3-1978 after dismissal of the writ petition on 10-3-1978. The Special Land Acquisition Officer made an award on 22-9-1986 on the basis of exemplar of a similar plot No. 2103 measuring 40 x 20 square feet which was sold with for Rs. 1, 000/- and total compensation was determined with solatium @ 30% and interest @ 12% which comes to Rs. 50, 21, 588.83 paise on the basis of belt system. The award was passed after eleven years. The grievance of the petitioner is that the Land Acquisition Officer has taken unreasonable delay in passing in award i.e. within two years of the enforce ment of the Act 68 of 1984. The solatium @ 30% and the interest @ 12% from the date of possession 22/24-3-1978 has been challenged. It appears that the petitioner has filed an application under Section 18(3) of the U.P Amendment Act (Act XXII of 1954) (hereinafter referred to as the Act No. XII of 1954) before the respondent No. 3 i.e. the Land Reforms Commissioner (Member of the Board of Revenue, Lucknow) for referring the matter to the Court. The order of the Land Acquisition Officer was chal lenged requesting that the matter may be referred by the Collector to the competent Court by way of reference. It is alleged that the ground was taken that the land was "Bunjar" and the valuation cannot be more than Rs. 1500/- per acre. It appears that the respondent No. 2 by means of order dated 23-6-1987 rejected the application on the ground that award made by the Collector under Section 25 of the Act cannot be reduced and it would be futile to make a reference under Section 18 of the Act No. XII of 1954 vide Annexure No. 4 dated 23-6-87. It is alleged that the right has been given under Section 18(3) of Act No. XII of 1954 for making reference to the Collector by the Land Acquisition Of ficer and as such Section 25 of the Act has been rendered nugatory.
(3.) IN brief the grievance of the petitioner is that the petitioner sought ad vice from the Government and the Law Department gave advise that the matter can be challenged by the petitioner whose land has been acquired byway of award. It is also alleged that this land was subject to the determination of two rights i.e. proprietary rights belonging to the State and the con testing defendants claims themselves to be hereditary tenants. Tenancy rights of the petitioner was contested by the petitioner on the ground that land in dispute was within the municipal limits. It was averred that U.P Zamindari Abolition and Land Reforms Act would not apply. It was also averred that patta could not be granted to the contesting respondent and the posses sion is unauthorised being invalid. So the matter still remains under adjudication as it has been sent after remand by the Commis sioner to the competent authority. It is pleaded that in case 40% amount is granted to the respondent Le. Rs. 54, 00, 000 it would not be possible for the Samiti to get back as the matter is still under adjudication and if patta is still held to be unauthorised by the competent authority the amount would go back to the Samiti as the Govern ment may not charge cost of the land from it. It is alleged that the amount has been deposited. The plea of the respondent, as ap pears from the counter affidavit is that the writ petition is not maintainable on the fol lowing facts: The award was given after considering the facts by Mandi Samiti on 22-9-1986. It is also alleged that reference was also made under Section 30 of the Act pertaining to dispute of the claim of the compensation by respective share holders. The District Judge, Jhansi registered reference as Misc. Case No. 188 of 1988 and the Collector moved the application before the District Judge, Jhansi seeking return of reference. It is alleged that reference was returned on 19-11-1988 under Section 30 of the Act to the Collector, Jhansi by the District Judge as the Collector was not deciding the matter of apportionment. It appears that on 19-3-1991 the writ petition was filed by the respondent and direction was given to the Collector, Jhansi for deciding the matter of apportionment of the Commissioner within six months. It is not disputed that the matter has not been decided regarding the validity of the Patta conferring the rights of lessee or tenancy by virtue of which the respondents were entitled to get possession. It is also alleged that the petitioner has not availed remedy under Section 54 of the Act which was passed under Section 11 of the Act and as such the writ petition was not main tainable. 7-8. It is also alleged on behalf of the respondents that the writ petition is not maintainable on account of laches as the award was passed in the year 1986 and the writ petition is filed in the year 1992. It is also averred that the petitioner is barred to file the writ petition as there is no valid explanation that why it did not approach this Hon'ble Court in the year 1987. It also did not approach the High Court by filing an appeal. It is also averred that in the present petition there is no mention of the earlier petition filed by the respondents in which the Samiti was the party regarding return of a reference of apportionment by the Collec tor on 19-11-1988. 9. Now the following questions which require determination: (1). Whether in facts and circumstances of the case the writ petition lies ? (2). Whether the petitioner has an interest to maintain the petition and in view of the withdrawal of the reference regarding apportion ment by the Collector ? (3). Whether mala fides I unreasonableness can be inferred in the facts and circumstances of the case to award such heavy amount on the petitioner by the Collector and the petitioner was justified to rely upon the legal advise of the Law Department to file the writ petition ? (4). Whether the petitioner can still avail remedy under Section 54 of the Act? 10. In our considered view the petition is maintainable on the following reasoning and facts and circumstances of the present case. The land was acquired more than 20 years ago. The question of apportionment is still hanging before the competent authority. The Collector took a reference back from the reference Court. Bureaucratic machinery moves very slowly. The files come from one channel to another channel and it takes years for taking decision. There is observation of Hon'ble Supreme Court in a recent judgment regarding how the machinery moves in Government matters regarding the con donation of delay. [Kindly see JT (1996) 3 SC 371 State of Haryana v. Chandra Mani. JCLR 1996(2) (SC) 235] In the aforesaid judgment it was observed that: "It is notorious and common knowledge that delay in more than 60 per cent of the cases filed in this Court - be it by private party or the State - are barred by limitation and this Court generally adopts liberal approach in condonation of delay finding somewhat sufficient cause to decide the appeal on merits. It is equally common knowledge that litigants including the State are accorded the same treatment and the law is ad ministered in an even-handed manner. When the State is an applicant, praying for condonation of delay, it is common knowledge that on account of impersonal machinery and the inherited bureaucratic methodology imbued with the note-making, file-pushing, and passing-on-the buck ethos, delay on the part of the State is less difficult to approve, but the State represents collective cause of the community. It is axiomatic that decisions are taken by officers/agencies prover bially at slow pace and encumbered process of pushing the files from table to table and keeping it on table for considerable time causing delay-intentional or otherwise - is a routine. Consider able delay of procedural red tape in the process of their making decision is a common, feature. Therefore, certain amount of latitude is not im permissible. If the appeals brought by the State are lost for such default no person is individually affected but what in the ultimate analysis suffers, is public interest. The expression "sufficient cause" should therefore, be considered with pragmatism in justice - oriented approach rather than the technical detention of sufficient cause for explain ing every days delay. The factors which are peculiar to and characteristic of the functioning of the Governmental conditions would be cognizant to and requires adoption of pragmatic approach in justice - oriented process. The Court should decide the matters on merits unless the case is hopelessly without merit. No separate standards to determine the cause laid by the State vis- a-vis private litigant could be laid to prove strict stand ards of sufficient cause. The Government at ap propriate level should constitute legal cells to ex amine the cases whether any legal principles are involved for decision by the Courts or whether cases require adjustment and should authorise the officers take a decision or give appropriate permission for settlement. In the event of decision to file appeal needed prompt action should be pursued by the officer responsible to file the ap peal and he should be made personally respon sible for lapses, if any. Equally, the State cannot be put on the same footing as an individual. The individual would always be quick in taking the decision whether he would pursue the remedy by way of an appeal or application since he is a person legally injured while State is an impersonal machinery working through its officers or ser vants. Considered from this perspective, it must be held that the delay of 109 days in this case has been explained and that it is a fit case for condona tion of delay." 11. The ratio of this ruling is that why the petitioner should suffer, ultimately society, when the system r- ns gone in a state of inaction and hibernation. Everywhere there is slackness and indifferences. So State was not put on the same footing in matter of condonation of delay in filing ap peal. State is not personal individual who takes decision immediately. Even in another ruling AIR 1996 SC 2750 Special Tehsildar, Land Acquisition, Kerala v. K.V Aysiumtna. In this case it was observed that there should not be insistence upon explain ing every day's delay by Court would be improper. Such adoption of strict standard of proof leads to grave miscarriage of jus tice. 12. Learned Counsel for the petitioner further submitted that there are no latches on the part of him in filing a writ petition as respondents were keeping him busy in con testing so many litigations and even the award was passed late. No doubt the award was passed on 22-9-1986 and the respon dents also filed one writ petition in 1991 seeking direction to the Collector to decide the matter of apportionment within six months. Legal opinion was to be taken by the petitioner and Law Department advised there is no remedy except to file the writ petition. There is an interesting question which would be discussed in next limb of the discussion that Commissioner refused to refer the matter to the Collector. There is allegation in para 12 of the writ petition that acquiring body happened to approach of Land Reforms Commissioner for the pur poses of getting direction to the Collector to file reference in the Court but reference was not made on the ground that Section 25 of the Land Acquisition Act is a bar as the amount cannot be reduced. In such situa tion the petitioner has no remedy except to knock at the door of the High Court in writ petition under Article 226 of the Constitu tion of India. There is no limitation in filing the writ petition. It is only rule of prudence and caution so that the aggrieved person should approach the Court within reasonable time. Abuse of process of law or misadministration is not in the hands of acquiring body. Why the society should suf fer and ultimately acquiring body ? The High Court can certainly interfere in such situation when such situation arises. It has been further submitted that appeal lies under Section 54 of the Act and as such writ petition by way of alternative remedy does not lie. There is averment in the writ peti tion, reference regarding which has been made, that acquiring body did approach competent authority under Section 18(3) of Land Acquisition (U.P Amendment) Act, XXII of 1954 but the request was not ac ceded to. 13. I would like to make a reference to Section 18(3) of Land Acquisition (U.P. Amendment) Act XXII of 1954 Land Reforms Commissioner has been given power under Section but it does not appeal that why the power was not used. The power is coupled with duty. Duty is to be per formed with sense of responsibility and in the larger interest of society. Exercise of power has to be reasonable and not ar bitrary otherwise it is hit by Article 14 of Constitution of India. Section 18(3) of Land Acquisition (U.P. Amendment) Act XXII of 1954 is quoted with advantage:- "18 (3). Without prejudice to the provisions of sub-section (1) the Land Reforms Commis sioner may, where he consider the amount of compensation allowed by the award under Section 11 to be excessive, require the Collector that me matter be referred by him to the Court for determination of the amount of compensation." 14. We are of the considered view that power was not exercised reasonably and it is hit by Article 14 and we strike down the impugned orders of not referring the matter to the Court for determination of the com pensation at the request of the Samiti. 15. Shri Mandhyan has invited our attention to Section 25 of the Act. In Section 25 of the Act it has been provided that the amount of compensation awarded by the Court shall not be less than the amount awarded by the Collector under Section 11. He further submits that new Amendment Act i.e. 68 of 1984 the amount of compensa tion awarded by the Collector shall not be less than the amount awarded by the Com missioner under Section 11. This is a Central Act and when there is repugnancy within the Central Act and the State Act, the Central Act will prevail. 16. In our view there is confusion prevailing in the mind of the authorities who were ceased with the making a refer ence. It is a well established proposition of law that the party who had preferred a claim/objection for increase of compensa tion the claim would be restricted to whatever amount is mentioned in Section 25 of the Act and the Collector or the Court cannot give more than demanded by the claimant. But we fail to understand how the right of making a reference has been denied by way of putting interpretation by the con cerned authority of local amendment. Uttar Pradesh is the State where the State can go in an appeal under Section 3 for reduction of the amount. Uttar Pradesh is the only State where the State can go in appeal under Section 18(3) by virtue of Land Acquisition (U.P. Amendment) Act XXII of 1954 for reduction of the amount. If there Stat" can go there is no logic why the acquiring body at whose instance the land has been ac quired, cannot go to agitate the matter in appeal. IV. Now there is one objection that acquiring body has no right to appeal. It is a very noble argument. The body for whom the land is being acquired by the Collector it has no right to appeal. This question has been settled by Hon'ble Supreme Court in a judgment reported in AIR 1995 SC 724 U.P. AvasEvam Vikas Parishadv. Cyan Devi. The Hon'ble Supreme Court observed that: "Section 50(2) of the L.A. Act confers on a local authority for whom land is being acquired a right to appear in the acquisition proceedings before the Collector and the reference Court and adduce evidence for the purpose of determining the amount of compensation. The said right carries with it the right 10 be given adequate notice by the Collector as well as the reference Court before whom acquisition proceedings are pending of the date on which the matter of determination of compensation will be taken up. The proviso to Section 50(2) only precludes a local authority from seeking a reference but it does not deprive the local authority which feels aggrieved by the determination of the amount of compensation by the Collector or by the reference Court to invoke the remedy under Article 226 of the Constitution as well as the remedies available under the Land Acquisition Act. In the event of denial of the right conferred by Section 50(2) on account of failure of the Collector to serve notice of the acquisition proceedings the local authority can invoke the jurisdiction of the High Court under Article 226 of the Constitution. Even when notice has been served on the local authority the remedy under Article 226 of the Constitution would be available to the local authority on grounds on which judicial review is permissible under Article 226. The local authority is a proper party in the proceedings before the reference Court and is entitled to be imp leaded as a party in those proceedings wherein it can defend the determination of the amount of compensation by the Col lector and oppose enhancement of the said amount and also adduce evidence in that regard. In the event of enhancement of the amount of compensation by the reference Court if the Government does not file an appeal, the local authority can file an appeal against the award in the High Court after obtaining leave of the Court, " 18. So the Apex Court has settled the law on this point and the argument of the learned counsel for the petitioner is not sustainable in view of the latest judgment of the Apex Court. 19. Coming to the next aspect of the case Shri Mandhyan has submitted that the respondents were not granted patta as they were not humidors. It so happened that the contesting respondents filed a suit for declaration under Section 229 of U.P. Zamindaii Abolition and Land Reforms Act seeking declaration that they are "Sir-dari" tenants of the land in dispute and the patta was given to them by the Government in 1995 under the U.P. Tenancy Act and now the Zamindari has been abolished, there fore, they have become 'sirdars' thereof. The State Government filed written statement denying the plaint's allegations and alleged that they have got no rights. The State Government contested their claim by way of filing appeal under law. It was averred that the Act is not applicable in the municipal limits. Ultimately the State Government filed an appeal before the Commissioner, Jhansi Division, Jhansi who remanded the matter on 16-7-74 after allow ing the appeal by order dated 16-7-1974. The main ground of the petitioner is that the Act is not applicable in the municipal limits. In case the Act is not applicable then 40% share of compensation which has been given to the contesting defendants and the compensation has been determined Rs. 50 lakhs and in that eventuality Government would be entitled. The matter is still pend ing and no document has been produced. Compensation has been stayed by the Court in the present writ petition. It is also inter esting to note that even the apportionment matter was not determined under Section 30 of the Act and reference was taken back. Shri Mandhyan has submitted that respon dents are influential persons. The award was delayed for more than eight years after taking possession the petition cannot be referred remediless. There is a famous saying "If there is right there is remedy". This aspect has been touched to show that writ petition is maintainable under these cir cumstances. 20. Now coming over to another question that the market value of the land ac cording to the learned counsel for the petitioner is arbitrary and highly excessive. He submitted that there were 32 sale-deeds on the record, out of which six related to agricultural land which were not relied upon and only three sale-deeds were relied upon and out of which one was chosen. According to the affidavit of Deputy Collec tor it would not have made any difference as exemplar which has taken is almost of the identical vicinity and of the same value as other two. So according to the affidavit of Deputy Collector after examining the only one exemplar regarding which reference has been made and it was identified for the pur pose of valuation. It is undisputed that ex emplar is of a very small plot. It is now settled law and the Hon'ble Supreme Court has also discouraged in so many judgments that if the land has been acquired runs into large chunk of acres and the smaller plot cannot be made as a basis for determination of compensation which was 40 x 20 square feet being plot No. 2103 and the value can not be fixed into yards. The land acquired for small plot is for different purpose. It may be out of necessity for starting shop or building a house. The settled proposition of law is that whether a willing purchaser would in a market would like to give a price of such big area when the willing seller is ready to sell it. [Kindly See JT (1995) 6 SC 92 Mis. Hasanali Khanbhai and Sons and others v. State of Gujrat Price cannot be determined by sitting on an armed chair and the realities of life have to be taken into account. Speculation can be indulged by Court of practical experience while adjudg ing the price. Two decisions have been cited by learned counsel for the petitioner. 1. AIR 1996 SC 531 Smt. IndumOti Chitaleyv. Government of India and another. It was observed in this case that deter mination of compensation on square foot basis is per se illegal and land owner will be entitled to compensation determined on per acre basis. 2. JT(1994)7 SC 257 Land Acquisition Officer and another v. Sri Sidappa Omanna Tlimari and others etc. It was observed in this case that deter mination of 'he value of large extent of acquired lance on the basis of the prices fetched by smaller plots must be a matter of last resort and should be adopted when there is no possibility of determining the market value on the basis of comparable transaction of larger extends. The Court is thus not always bound to determine the market price of such large extent on the basis of the price fetched by small extends of land. 21. Shri Mandhyan has further sub mitted that the value of the land is not more than Rs. 1, 500/- per acre. In this case the evidence regarding production of the land was not available from which the profit can be determined and then the capitalization value formulae can be adopted. Opinion of expert is not available for the determination of price. The only course left is sale-deed of smaller plot which is not a conclusive guideline and the Court can also rely upon its practical experience and the purpose for which it is required. 22. In a judgment cited by learned counsel for the petitioner Shri Mandhyan reported in AIR 1988 SC 1652 Chimanlal Hargovinddas v. Special Land Acquisition Officer, Poona and another it was observed that there are so many plus and minus points detailed at the time of notification. The Hon'ble Supreme Court has made ob servation that after making deduction by way of allowances at an appropriate rate ranging approximately between 20% to 50% to account for land required for carving out land for carving out. small plots. Special Land Acquisition Officer has given deduc tion of 25% development charges but we are of the view that the deduction is very loss considering the quality of the land i.e. "Ban-jar" and it was acquired for Mandi. The plot is very small so at the best the price is only a mere guideline. After the Land Acquisition Officer should have fixed the price after making deduction of 60% development charges of the smaller plot as an exemplar as for making a yard so many developments have to be carried out. Moreover, it is easier to say that the land will fetch price in crores or lakhs but when one goes to market the circumstances are different. So in our view after weighing the plus and minus point and the practical experience of the Court the price should have been fixed after deducting 60% development expenses of the exemplar instead of deduction allowed by the Special Land Acquisition Officer in the award. So in the facts and circumstances of the case we determine the price after deducting 60% of the exemplar instead of deduction allowed by the Special Land Acquisition Officer in the award. 23. So in our view after such lapse of time it would be not fair and just to remand the case for determination of the price and the High Court can certainly interfere under Article 226 of the Constitution of India in modifying the award in the exceptional cir cumstances of the case as in this case. 24. We, therefore, for the reasons recorded above modify the award to this extent and the price to be calculated by the Collector according to the observation, and finding given. 25. Regarding interest, the Collector has given 12% interest from the date of notification till the date of possession. This interest has been given wrongly and illegally as it is not warranted under Section 23(1) (A) of the Act. Section 23(1-A) of the Act is quoted below: "23.(1-A).-In addition to the market value of the land, as above provided, the Court shall in every case award an amount calculated at the rate of twelve per centum per annum on such market value for the period commencing on and from the date of the publication of the notification under Section 4, sub- section (1), in respect such land to the date of the award of the Collector or the date of taking possession of the land, whichever is earlier." 26. The above Section is not retrospec tive and it is a newly added Section by Act No. 68 of 1984. The Notification was issued in the year 1975 and as such the interest can be granted. 27. Interest would be granted now in the light of the following observations:- The possession was taken by the petitioner on 22-3-1978. There is no dispute regarding this and the petitioner would be entitled to get interest from the date of possession i.e. 22-3-1978 till the date of deposit of money. The rate of interest would be payable @ 9% as the award was passed after the enforcement of the Amendment of the Land Acquisition Act, 1984 by Act No. 68 of 1984 and 15% interest according to Section 28 of the Act after the expiry of the period of one year if the amount is not deposited within one year. The interest would be also calculated accordingly at this rate and the petitioner would be also en titled for solatium @ 30% on the total amount of compensation. 28. The submission of the learned counsel for the petitioner that the award was delayed by the Special Land Acquisition Officer for benefit of new Act is of no conse quence in the facts and circumstances of the cases and the plea is also not tenable. 29. It is submitted by Shri Sahi, learned counsel for the respondents that the petitioner's writ is barred by principle of estoppel and acquiescence as the petitioner deposited the amount in the treasury. He has further submitted that the petitioner did not come immediately after the passing of the award. There is no acquiescence of es toppel at all and mere depositing of the amount does not lead to this conclusion. The amount has been deposited just to avoid running meter of interest. It may be also pointed out that Collector passed an order (Annexure No. 5 to the writ petition) regarding the fixation of compensation ob viously under Section 29 of the Act. It lays down where there are several persons inter ested, if such persons agree in the appor tionment of the compensation, the par ticulars of such apportionment shall be specified in the award, and as between such persons the award shall be conclusive evidence of the correctness of the appor tionment. 30. In view of what has been stated above it is obvious that at no point of time has the State admitted the lessee right of the respondents. Consequently, the payment of even 40% as suggested by this Court in this judgment shall be payable only in the event of the State Governments challenge to the respondents' lessee rights is finally settled by the Commissioner or such other higher authority above him as the law permits. 31. This writ petition, therefore, is finally disposed of with the following direc tions:- (1). The Land Acquisition Officer con cerned shall calculate the price in big has in the light of our opinion expressed in all belts of the land classified by the Collector. (2). Compensation amount, already deposited, will be withdrawn by the Special Land Acquisition Officer and after making assessment according to the guidelines and directions in our judgment, it will be assessed and put into F.D.R. till the matter is decided by the Commissioner and final adjudication take place. The interest of the F.D.R. will be given to the party who wins the case regarding apportionment. The remaining amount after the assessment will be given to the Samiti. The Commissioner is directed to decide the con troversy, which is pending since 1974, within three months of the production of the order by the petitioner and a separate copy of this order be also sent by the Registrar, High Court to the Commis sioner concerned to comply with the direction made in this judgment. 32. The writ petition is allowed to this extent and the award of the Special Land Acquisition Officer is modified in view of the aforesaid directions. Petition allowed.;