IN THE HIGH COURT OF JUDICATURE FOR RAJASHAN AT JAIPUR BENCH, JAIPUR. ORDER 31.3.2009. S.B. CIVIL MISC. APPEAL NO.110/1994 J.D.A., Jaipur Vs. Indrapuri Grah Nirman Sahakari Samiti Ltd. HON'BLE MR. JUSTICE DALIP SINGH Shri R.A. Katta, for the petitioner. Shri G.P. Kaushik,for the respondent. Heard learned counsel for the parties. This appeal has been field under Section 54 of the Land Acquisition Act 1894 against the judgment and decree dated 15.10.1993 passed by the learned Civil Judge, Jaipur city, Jaipur in Land Acquisition Reference No.70/1981. The short submission which has been made by the learned counsel for the appellant is that the learned Civil Judge has passed the decree contrary to the evidence on record. It was contended that on the reference having been made, evidence was recoded and land holder himself produced Ex.3 award dated 30.6.1989 in respect of the land situated in Village Bhojpura Chak Sudarshanpura in Jaipur, where the land in dispute is also situated. The land under the award Ex.3 was acquired under the notification under Section 4 of the Land Acquisition Act issued on 13.5.1960 and in the said award compensation was awarded @ Rs.24,000/- per bigha. It is contended that in view of the above, the learned court below erred in awarding compensation @ Rs.125/- per Sq. Yd. The submission of the learned counsel for the appellant is that there are 3025 per Sq.Yd in a bigha and on that basis the compensation which has been awarded by the learned court below would amount to Rs.3,78,125/- per bigha which is several times higher than the compensation awarded in respect of land acquired in the same area vide notification dated 13.5.1960 which is in the proximity in time to the acquisition notification issued in 1963 in respect of the land in dispute. Learned counsel appearing for the respondent submitted that so far as the award Ex.3 produced from the side of respondent claimant is concerned, it is not in dispute. However, he submits that the appellant failed to even pay the compensation which was awarded under the award which was passed on 4.12.1980 @ 6,000/- per bigha. It is submitted that so far as the said amount which was awarded in the award by the Land Acquisition Officer is concerned that was never challenged by the appellant and only the claimants had filed reference application for enhancement of the amount. Inspite of the same the amount @ Rs.6000/- per bigha was also not paid. It is submitted that on account of the aforesaid delay and deliberately withholding the undisputed amount by the appellant the respondent should be granted compensation for the inordinate delay and the market value of the land as on the date of the judgment dated 15.10.1993 should be taken into consideration. So far as the contention of the learned counsel for the respondent is concerned. Suffice it to say that Section 23 of the Land Acquisition Act which provides the consideration to be taken into account for determining the compensation it is provided as follows : “Sec.23. Matters to be considered in determining compensation.- (1) In determining the amount of compensation to bed awarded for land acquired under this Act, the Court shall take into consideration : first, the market value of the land at the date of the publication of the [notification under section 4, sub-section (1)]; secondly, the damage sustained by the person interested, by reason of the taking of any standing crops or trees which may be on the land at the time of the Collector's taking possession thereof; thirdly, the damage (if any), sustained by the person interested at the time of the Collector's taking possession of the land, by reason of severing such land from his other land' fourthly, the damage (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; 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; and Sixthly, the damage (if any) bona fide resulting from diminution of the profits of the land between the time of the publication of the declaration under section 6 and the time of the Collector's taking possession of then land.” In view of the above, the submission of the learned counsel for the respondent for awarding the compensation @ market value land prevailing on the date of the judgment of the learned Civil Judge cannot be allowed that in view of the specific provisions of Section 23 which specifies the market value shall be taken as on the date of the notification under Section 4. In that view of the no other date can be taken into account. The learned counsel for the respondent has relied upon the judgment of the Karnataka High Court reported in AIR 1989 page 283 in the case of Patel Byrappa & Ors. Vs. State of Karnataka & Ors. In view of the specific provision of Section 24 I am unable to persuade myself to follow the aforesaid judgment. Consequently the submission of the respondent is accordingly rejected. So far as the submission of the learned counsel for the appellant is concerned I am inclined to accept the same. In view of the fact that the evidence in the form of the Award Ex.3 which was admittedly produced by the respondent himself. For the same area in Chak Sudershanpura village Bhojpura the compensation was awarded @ Rs.24,000/- per bigha and therefore there was no reason for the learned court below to have been deviated from the aforesaid piece of evidence and awarding compensation awarded @ Rs.125/- per sq. yard (Rs.3,78,125/- per bigha). Since the notification in the instant case was issued three years later i.e. in the year 1963 of 5% escalation in price over and above the value of the land prevailing in the year 1960 as in the case of award Ex.3 can reasonably be accepted. In the facts and circumstances therefore looking to the evidence produced by the respondent in the form of award Ex.3 I would consider it appropriate to determine the market value prevailing in the year 1963 by taking the market value in the year 1960 as Rs.24,000/- and escalation of price by 5% in the year 1963 as Rs.1,200/- (being 5% of Rs.24,000/-) thus the market value is determined Rs.25,200/- per bigha (24000+1200) in the instant case. Since the total area of the land acquired in the instant case is only 1 bigha. The compensation for the purpose of market value of the land in dispute is determined as Rs.25,200/-. The remaining part of the award as well as the decree passed by the learned Civil Judge awarding the solitium as well as the compensation under Section 23(1A) and interest shall remain the same. Consequently, this appeal is allowed as indicated above. Looking to the fact that the acquisition is of the year 1963 and no amount has been paid as yet by way of compensation the appellants are directed to deposit the amount with the learned Civil Judge within a period of Six weeks from today i.e. on or before 16th May 2009 which shall be disbursed to the respondents forthwith. There shall be no order as costs. (DALIP SINGH),J. Ramchandrkhatri,PS