- (1.) R. K. Mahajan, J. These two would be decided together. The matter regarding transposition of the State as ap pellant from the array of respondents would also decided in this case. There is one more interesting question which would be also decided alongwith the ap peals that if the State has not filed an appeal regarding the entitlement of the compensation as a lessor but the matter has been agitated by the appellant regard ing the entitlement of compensation by the respondent then what would the fate of not filing the appeal by the State. In fact the land was acquired by the appellant by making a request to the State Government for planned development i. e. construction of flats of various types.
(2.) IN order to understand the con troversy the resume of essential dates and facts are mentioned below: Notification under Section 4 of the Land Acquisition Act, 1894 as amended upto-date (hereinafter referred to as the Act) was made by the Government in the official Gazette on 7-1-1987 with respect to 4 bighas of land situated at 2 Circular Road, Allahabad. Declaration under Section 6 of the Act was made on 6-3-1987. Provision of emergent requirement under Section 6 of the Act were also invoked and possession was handed over to the appellant with respect to building as well as the land on 16-6-1987. It may be mentioned that com posite award has not been passed under Section 11 of the Act. Two separate awards have been passed on a mistake detected later on by the Special Land Acquisition Officer pointed out by higher authority with respect to building. The Special Land Acquisition of ficer gave an award on 4-3-1989 and awarded the following: Rs. For Building ,48,000. 00 For trees ,100. 00 30% Solatium ,11,330. 00 Under Sec. 23 (1) (A) ,544. 83 Total ,00,974. 83 5. The Special Land Acquisition of ficer gave another award on 13- 6-1987 and awarded the following. For 4 Bighas Land Rs. 7,91,894. 00 12% Addl. compensation Rs. 35,634. 33 Solatium Rs. 2,37,562. 20 10,65,070. 53 6. Upon a reference made by the Col lector, Allahabad to the District Judge, Allahabad under Section 18 of the Act, the Vlllth Additional District Judge, Al lahabad Shri Ajai Swaroop Chaudhary on 8-12-1992 awarded the following compen sation with respect to the building Rs. 10,96,842 + Rs. 50,000 (for trees) = Rs. 11,46,842. He has also awarded interest at the rate of 12% from 7-1-1987 to 16-6-1987 amounting to Rs. 61,164. 90 and on the entire said amount 30% solatium amounting to Rs. 3,62,402. 07. He has fur ther awarded interest @ 9% from 16-6-1987 to 15-6-1988 on the amount of Rs. 15,70,408. 97 which comes to Rs. 1,41,336. 81. On the entire amount of com pensation since 16-6-1988 to 4-3-1989 an interest at the rate of 15% yearly amount ing to Rs. 1,84,612. 72. From the entire aforesaid amount of Rs. 18,96,358. 50 after deducting the amount of award Rs. 5,00,974. 83 the total amount comes to Rs. 13,95,383. 67. The learned VHIth Addi tional District Judge on 8- 12-1992 also granted compensation at the rate of Rs. 500 per square yard for 10920 square yard which comes to Rs. 54,60,000. He has also awarded interest @ 12% yearly on the aforesaid amount which comes to Rs. 2,91,200. He has further awarded 30% solatium amounting to Rs. 17,25,360 and usual interest as mentioned in the award. Both awards are subject-matter of challenge in both appeal. 7. Briefly, grounds of appeal would be referred in both appeals as canvassed during the course of arguments by Shri R. N. Singh. It may be pointed out that Shri Ashok Mohiley has submitted that request for reference under Section 18 of the Act on behalf of Smt. Kiran Tandon for enhan cement of compensation was made on 11-12-1987. It was further submitted that ref erence under Section 18 of the Act was made by the Collector. On 30-5-1986 ref erence under Section 31 of the Act was also made. Reference dated 30-5-1986 shows that request was made to the District Judge to decide who is entitled for compensation of Rs. 10,65,070. 55 as Shri Lal Ji Tandon, Shri Ravindra Kumar Tandon and the State Government were claimants. In other words it is clear reference under Section 18 of the Act to decide the title. It may be also mentioned that on 6-8-1991 Allahabad Development Authority was added as one of the party vide court's order and the State Government has filed its written statement. 8. In the written statement the State Government alleged that Ravindra Kumar Tandon is not landlord and the State Government is landlord and is entitled to get compensation. Shri R. N. Singh sub mits that there is decision by the learned Additional District Judge holding that Smt. Kiran Tandon is entitled for getting compensation and since no appeal has been filed against the said judgment and as such the State Government is debarred to agitate this matter by transposing it as a party. He has further submitted that even the Appellant has no locus standi to agitate the matter. 9. Shri Ashok Mohiley has submitted that he has taken in appeal that Smt. Kiran Tandon is entitled for entire compensation solatium including the interest. 10. We find from the grounds of ap peal that a plea has been taken that the State Government is owner of the land and super structures. We also filed from the grounds of appeal that the lease land was acquired by the Government and the view taken by the VIIIth Additional District Judge that the State Government is not owner is erroneous. 11. Before proceeding to the ques tion of compensation which would be referred later on, we are of the view that the State Government can acquire the land of the lessee. It may be mentioned that the property was leased property on behalf of the Government to the lessee on a premium and rent and lease expired on 7-7-1987 and the possession was taken under Section 17 of the Act earlier. It was renewed further with certain conditions i. e. right to entry and super structures would belong to the party. There is a letter dated 28-7-1987 (paper No. 23-Ga) from the Joint Secretary, Government of U. P. to the Collector, Allahabad showing that the Government of U. P. has renewed lease in favour of Ravindra Kurnar Tandon for the period of 30 years on payment of Rs. 10,03,500 as premium and also on payment of Rs. 25,087. 50 as annual rent and the Collector was directed to execute and register the lease. We do not agree with the submission of Shri Mohiley that the lease was not renewed and was not subsisting at the time of acquisition and passing of award as also at the time of taking posses sion under Section 17 of the Act. So we are of the view that the relationship of lessor and lessee subsisted. 12. We do not agree with the submis sion of learned Counsel for the respondent Shri R. N. Singh who has quoted so many authorities regarding transposition. He has relied upon AIR 1980 Madras 232 (Para 7) Govinda Iyer v. Kumar and others, and stated that the transposition in appeal will not be permitted in case it results in enlarging the scope of appeal. We failed to accept his argument that how it would enlarge the scope of the appeal. In fact the appellant has already arrayed it i. e. State of U. P. as a party (as respondent ). 13. In Uttar Pradesh it is our common experience that there is bureaucratic lethargy and apathy and the State is imper sonal and nobody bothers for the State finances and interest. In many cases cal lousness is writ large. Taking background of this case when the appellant is disputing the title of the appellant to receive the entire money and arrayed the State as a party and when the State Government has taken the plea that the respondent is not entitled to entire compensation as the State is owner, in these circumstances and background it would help in doing justice. We, therefore, transpose the State as party as the interest of justice requires so and the State Government has submitted an ap plication for the same. There is no bar under Order I, Rule 10 (2), C. P. C. to do so. Order I, Rule 10 (2), C. P. C. is quoted below with an advantage: " (2) Court may strike out or add parties.- The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any. party improperly joined, whether as plaintiff or \ defendant, be struck out. and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and com pletely to the necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added. " 14. This gives power to the Court to transpose the State Government as appel lant in the facts and circumstances of the case to do justice and we transpose accord ingly. 15. In this case there is also an inter esting feature that the land was acquired by the State Government on behalf of the Allahabad Development Authority and the grounds of appeal show, as mentioned above, that title to receive money has been specifically disputed by the appellant. Since the appellant was to pay the entire compensation it could have taken the ob jection. The lower court has also com mitted mistake by not consolidating the three cases and disposing it by one judg ment as the parties were same and purpose was same and the notification was also same. It appears that request was made but it was not acceded. Shri R. N. Singh, learned Counsel for the appellant has sub mitted that the matter has become res judicata between the parties by not filing the appeal by the State Government and he has cfted AIR 1953 SC 33 in Rajlaxmi case. He has further submitted that since the appeals were not filed regarding refer ence answered by the Additional District Judge in reference No. 126 of 1987 with reference to title of ownership of the premises No. 2 Circular Road and declar ing the widow Smt. Kiran Tandon wife of Ravindra Kumar Tandon exclusive owner in possession and the appeal relate to other reference i. e. the building and land. We failed to appreciate his submission as the parties cannot be prejudiced if the matter is not properly answered in a one common judgment. We failed to ap preciate his submission regarding res judicata as in our view if the matter has not been finally decided and is still under sub-judice between the appellant and State as the appellant had interest to attack the ownership of the land in dispute and to whom the disbursement was to be made according to the title. The ratio of the judgment of Hon'ble Supreme Court reported in AIR 1953 SC 33, is not ap plicable in the facts and circumstances of the case. 16. If we read Section 11 read with Section 30 of the Act the only conclusion is that under Section 11 (3) the apportion ment of the compensation has to be made among all the persons known or believed to be interested in land of whom or of whose claims, he has information whether or not they have respectively appeared before the Court. 17. Section 30 of the Act lays down that when the amount of compensation has been settled under Section 11 if any dispute arises as to the apportionment of the same or any part thereof, or as to the persons to whom the same or any part thereof is payable, the Collector may refer such dispute to the decision of the Court. 18. Section 18 of the Act deals with the determination of market value of the land in dispute. 19. From a conjoint reading of those questions can be decided in one judgment and they can be disposed of together and not in driblets or by parts. So we are of the considered view that the matter can be determined regarding the apportionment and is not closed. 20. There are some principles laid down regarding the apportionment of les sor and lesses amount. Since it is not a case of permanent lease nor we want to give a finding, we hold that there is relationship of lessor and lessee and the Government in case of some breach of condition can re-enter the premises. The Government still retains its right of re-entry. Shri Ashok Mohiley has relied upon (1994) 5 SCC239, Inder Prasad v. Union of India and others. In this case the Civil Court has granted 67% to the lessee and 33% to the Government. The High Court increased to 75% to lessee and 25% to the Government. It was held that being an owner the Government is not enjoined to acquire its own interest or land alone for public purpose. But where it leases its land in terms of the covenants cannot unilaterally determine the lease and take back possession and the land is required for a public purpose it has to exercise the power of eminent domain by invoking the provisions under the Land Acquisition Act for getting such land. The collector shall have to determine the com pensation towards the lease hold interest held by the lessee, if assessable separately and determine the compensation. But if compensation is determined for both the components, then the same has to be ap portioned between them. Since the Land Acquisition Collector had determined the compensation for the sum total of inter ests held by the lessor and the lessee in the land under acquisition but being not able to decide on the apportionment such com pensation between Government and the appellant, reference was made to the Civil Court to determine the apportionment. The Civil Court decided by its award that apportionment of compensation fixed in the award of the Land Acquisition Collec tor between the lessee-claimant and the Government landlord shall be in order of 67 per cent and 33 per cent. The High Court by its judgment and decree under the present appeal has modified the ap pointment of compensation payable for land as 75 per cent for the lessee and 25 per cent for the lessor. Under these circumstances it cannot be said that the Land Acquisition Collector had determined the compensation only towards the leasehold interest hold by the appellant and that, therefore, the appellant is entitled to the entire compensation determined by the Collector. 21. Shri Ashok Mohiley, learned Counsel for the appellant has invited our attention to AIR 1996 SC 2710, Ratan Kumar Tandon and others v. State of U. P. It relates to the family which respondent belong as stated in argument. In this case the compensation v/as granted by the High Court 50:50 and it was not questioned by the State as no appeal was filed. Mr. Mohiley submits that appellant cannot get more than 50:50 so we order to apportion the compensation in the aforesaid ratio 50:50 and reverse the finding of the lower court on this point by negativing the sub mission of the learned Counsel for the respondent Shri Singh. 22. It has been further submitted by Shri Mohiley that even for argument sake the appeal regarding apportionment is not considered competent even then the case is covered under Order XLI, Rule 33, C. P. C. Shri Singh submits that Order XLI, Rule 33, C. P. C. does not apply in this case as it would nullify the main provision of law. We would like to quote Order XLI, Rule 33, C. P. C. with an advantage: "33. Power of Court of Appeal.-The ap pellate Court shall have power to pass any decree and make any order which ought to have passed or made and to pass or make such fur ther or other decree or order, as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross-suits or where two or more decrees are, passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees: Provided that the appellate Court shall not make any order under Section 35-A, in pur suance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order. " 23. Shri Singh submits that this is not covered by judgment reported in AIR 1982 SC 98, Choudhary Sahu v. State of Bihar. He submits that even if this is allowed to be done it would mean that the appellant would have easy escape from the principle of res judicata. We are of the view that there is no force in the argument of Shri Singh as in view of the reasons recorded in earlier part of the judgment the provisions of Order XLI, Rule 33, C. RC. are also ap plicable in this case as the entire case is open. The submission of both the parties also looses importance in view of the transposition of the State as a party. 24. Next question in case is regarding compensation of the building as well as the land. We would like to point out the defini tion of land as mentioned in Section 3 of the Act. It lays down unless there is some- thing repugnant in the subject or context: " (a) the expression "land" includes benefits to arise out of land, and things attached to the earth or permanently fastened to any thing attached to the earth. " 25. Reference has been made to judg ment of Hon'ble Supreme Court AIR 1996 SC 2710 : (1997) 2 SCC 161 by Shri Mohiley. According to the judgment of the Apex Court claimants-respondents are not entitles to valuable land and building separately and compensation on both. It was observed in para 9 of the judgment that when land and building are acquired by a notification, the claimant is not entitled to separate valuation of the building and the land. They are entitled to compensation on either of the two methods but not both. If the building is assessed, it is settled law that the measure of assessment be based on either the rent received from the property with suitable multiplier or the value of the building is the proper method of valuation. In this case, since the land was separately valued, the building cannot again be separately assessed and compen sation awarded except the value of debris. 26. However, since the State has not come into the appeal and the Supreme Court did not go into the question and confirmed the compensation in respect of the building, the legality of the award on behalf of the State recorded by the Addi tional District Judge and High Court was not considered. 27. Shri Mohiley has further sub mitted that the lower court has not given deduction of 33% regarding the amend ments to be effected in the land while assessing the value and cited so many judg ments of Hon'ble Supreme Court. He has further submitted that further improve ments in the land are not to be taken into consideration under Section 23 of the Act and the respondent must prove that land has a potentiality of building. He further submitted that vendor and vendees have also not been examined in the examplar relied upon by the Additional District Judge and as such lower court committed mistake in. relying upon the similar ex amplar. 28. Sn Singh has frankly conceded that the examplar which has been relied upon by the Additional District Judge and on which vendor and vendee have not been examined and he submits that there is suf ficient evidence to give a finding on market value of the building and land and finding can be sustained on that evidence. He fur ther submitted that there is no need of 30% deduction as the land was already developed and there is no material place u by the appellant regarding how land would be wasted for the development purpose. Shri Singh further submits that the land is in posh locality of Allahabad. It is very near to the circuit house and important markets, colonies, offices and residence of important persons are also situated within the radius of 1-1/2 k. m. His submission is that the land is already in the development locality and posh area and the relied upon judgment of Apex Court AIR 1996 SC 2710 (supra) of the same family in which the High Court gave Rs. 243 per square yard with respect to the notification dated 14-12-1986 and the area was 22,508 square yards. The State Government did not ap peal and this rate was confirmed by the Hon'ble Supreme Court. 29. Shri Singh further submitted that it is not proper to remand the case in view of the judgment reported in AIR 1997 SC 2664 (Paras 8,11,12,14) as it would put the parties into agony and harassment and would result in wastage of public time. While sitting with justice Palok Basu we did not remand the case but decided our selves. We have decided the question in writ petition No. 13502 of 1992, Krishi Utpadan Mandi Samiti, Mauranipur, Jhansi v. State ofu. P. and others, regarding award ing of compensation. 30. We are of the considered view that the land regarding which High Court granted Rs. 423 per square yard between the same parties, as referred above, was with respect to notification of 1986 but the present notification is of 1987 and the prices havearisen. On behalf of Smt. Kiran Tandon sale deed of Jai Prakash Singh, Paper No. 6-Ga, has been relied upon. Sale deed has been executed in the year 1985 and Rs. 250 per yard was awarded in refer ence. 31. It may be mentioned that there is Bungalow Nos. 3 and 4 in Circular Road which was also subject- matter of acquisi tion in 1985 and compensation was paid at the rate of Rs. 250 per square yard by the appellant without objection. It has come on the record and there is no denial of the fact. It also finds mention in the lower court judgment. So considering all these factors and time gap and rise in prices and the property situated in a posh locality and near circuit house in developed area having potentiality for building purposes the trial court has not committed an error in fixing the price of the land @ Rs. 500 per square yard. 32. In our view the State Government has already in granting price @ Rs. 423 and that award is a piece of evidence for the determination of the price of the land has acquired in market value of land. Regard ing submission that the trial court has not deducted 30% for the purpose of develop ing the area. Shri Singh has also pointed out that the Allahabad Development Authority after acquiring the land in Ashok Nagar has granted the rate of Rs. 510 per square yard plus Rs. 10 as lease rent in favour of persons and has pointed out paper No. 27-C showing the allotment in favour of Brijesh Mehrotra. Similarly the land was allotted to Shri Joginder Pal Arora. So we are of the view that the price has been fixed correctly by the lower court. 33. Now coming to the deduction regarding the development, we are of the view that lower court was right that the appellant has not shown how much area is to be left for the road, sewerage system, drainage, was not completely right. Regarding not allowing deduction for the development purpose. It is matter of com mon experience that when a development authority has taken an area for a planned development it has to give due considera tion for roads and streets etc. and lot of land is wasted out of big chunk. There is no hard and fast rule that how much deduc tion has to be allowed when the area is already developed. 34. Considering the facts and cir cumstances of the case we are of the view that 20% deduction would be allowed for leaving out roads, open space etc. and as such 20% has to be deducted in fixing market value. We have relied upon Brig. Sahib Singh Kalha v. Amritsar Improve ment Trust, AIR 1982sc940. In this case it was observed that it is a well settled prin ciple of valuation that where there is a large area of undeveloped land under ac quisition, provision has to be made for providing the minimum amenities of town life such as water connections, well laid out roads, drainage facility, electric connec tion, etc. The process necessarily involves deduction of the cost of factors required to bring the undeveloped lands on a par with the developed lands. An extent of 20 per cent of the total land acquired is normally taken as a reasonable deduction for the space required for roads. 35. In Chimanlal Hargovinddas v. Special Land Acquisition Officer, (1988) 3 SCC 751, 25% deduction was required to be made. 36. Shri Mohiley has relied upon so many rulings on this point K. Vasundara Devi v. Revenue Divisional Officer (LAO), (1995) 5 SCC 426 and Smt. Basavva and others v. Special Land Acquisition Officer and others, JT 1996 (5) SC 580. 37. Shri Mohiley has pressed deduc tion of 30% but we do not consider reasonable in the facts and circumstances of the case as there was already a bungalow and must have some facilities. So only deduction out of market value 20% per square yard is allowed and after consider ing facts and circumstances of the case the Court fixed Rs. 500 per square yard but after 20% deduction the final price would be Rs. 400 per square yard and we deter mine accordingly. 38. Now coming to next question regarding the building. The Hon'ble Supreme Court has laid down, as discussed above, that there cannot be duplication in fixing the price of the building, as well as land. The entire land was acquired in which the building was also situated. The price of the building fixed by the lower court Rs. 10,96,842 and Rs. 50,000 for trees. 39. Shri Mohiley submits that ac cording to the report of Shri G. S. Birdie, who is valuer and formerly Principal, J. L. N. Polytechnic, Mahmudabad (Sitapur) has fixed the value of the salvage Rs. 65,210. Shri B. C. Mittal, Consulting Engineer has fixed price of the building Rs. 16,40,000 on 17-1-1987. It has come on the record in the lower court judgment that according to Mr. Birdie the total con structed area is 400. 48 square meter while P. WD. in his report mentioned the area 410. 68 square metres. So it is obvious that this area has been also assessed for the purpose of building as well as land which cannot be done as there will be duplica tion. The respondents are getting price for the land according to the market value and they can remove the debris if they like or the price of the debris must be Rs. 60,000. We determine accordingly. 40. So we are of the view that the question of value of building was left out by the Hon'ble Supreme Court in case cited above as the State has not filed the appeal and that double price cannot be fixed. In our view ratio of the principle still applies. 41. It has been submitted by Shri Mohiley that the land is covered under Ceiling Act. There is no issue nor any finding on this point. We are of the view that we are afraid to open this issue as it is not covered by the pleadings specifically. We reject the plea. 42. Before parting with the case we must observe that the Development Authorities and State Government are not pursuing the case of the land acquisitions in true spirit and the same is causing loss to the public money. 43. It is for the State Government to see and think over this aspect. 44. We set aside the finding of the Additional District Judge on the market value and fix market value of the land as well as building in the aforesaid two ap peals in the light of reasons discussed. We accordingly fix the market value of the land Rs. 400 per square yard on the entire land including the land covered by the bun galow. The market value is to be deter mined at this rate by the Special Land Acquisition Officer and is to be paid at this rate. We reverse the award to this extent after setting aside the same. 45. We accept the price of debris determined by Shri G. S. Birdie, Architect to be Rs. 60,000 as the building is more than 90 years old and it is practically an old construction. This price is to be paid to the lessee in case he does not remove the structure. We also do not want to disturb the price of the trees payable to the lessee as determined by the Special Land Ac quisition Officer. 46. We reverse the award of the Addi tional District Judge regarding the price of building in First Appeal No. 368 of 1994. We also order that the respondent would be entitled to solatium @ 30% on compen sation and to interest @ 12% under Sec tion 23 (1) (A) of the Act on the market value from the date of notification under Section 4 of the Act till the date of taking possession under Section 17 of the Act. If the amount of market value has not been paid or deposited a further interest @ 9% under Section 28 of the Act is to be paid from the date of possession to the date of payment of such excess amount into Court and 15% interest after the expiry of one year on which the possession was taken as postulated under Section 28 of the Act. Out of the total compensation interest and solatium 50% of the amount would be given to the Government by the respon dents and 50% would go to the respon dents. In case any amount has been deposited either before Court or Special Land Acquisition Officer that amount has to be deducted for determination of the compensation and the remaining amount be deposited in the light of the rate as sessed and observation made and finding given. 47. We allow the appeals after setting aside the awards in the light of observa tions made above with costs. 48. A copy of this judgment be sent to the Secretary, Revenue, Government of Uttar Pradesh in the light of the observa tions made in the judgment. Appeal allowed. .;