KIRAN TANDON versus ALLAHABAD DEVELOPMENT AUTHORITY AND ANR.

19. The Reference Court has relied upon two letters in order to hold B that the lease in favour of Ravindra Kumar Tandon had been renewed and he continued to be the owner of the property even after 7. 7. l Q87. The first letter • r is dated 28.7.1987 bearing no. 2877/9 Nazul-33/N/87 sent by Sri Janardan Prasad, Joint Secretary U.P. Government to the Collector, Allahabad wherein it is mentioned that the Government has agreed to execute a new residential c lease in place of the expired lease in favour of Sri Ravindra Kumar Tandon regarding Nazul Plot No.SIM, Bungalow No.2, Circular Road, Ailahabad on deposit of a premium of Rs. 10,03,500 and annual rent of Rs.25,087.50 for a period of first 30 years with effect from 25th May, 1987 which shall contain a clause for two further renewals. The second letter is dated 14.9.1987 bearing no. 4423/9-Nazul-33/N/87 sent by the same authority to the Collector, D Allahabad and it is stated therein that in continuation of the Government Order dated 28.7.1987 regarding execution of a new lease deed in favour of Ravindra Kumar Tandon the Government had agreed that the premium amount may be deposited in six monthly instalments. These letters were not accepted by the ADA or by the State Government and their specific case was that the E lease had already expired before taking possession and the same had not been renewed.

20. The original claimant Ravindra Kumar Tandon died during the pendency of the reference and his wife Smt. Kiran Tandon was substituted in his place. The claimants examined only one witness namely, Rajesh Kumar F -"/. Tandon holding power of attorney on behalf of Smt. Kiran Tandon who made an attempt to prove the aforesaid Jetter in his oral statement. The original letters have not been filed but merely photo copies have been filed. They do not bear seal of U.P. Government. The letters were not exhibited. If the Government took a decision to renew the lease the same could be established by the production of relevant records by some responsible G government servant. No attempt at all was made by the claimant to summon the relevant records of the Government. The endorsement at the efi'd of the letters shows that copies thereof were sent to (I) Accountant General, Uttar Pradesh, Allahabad (2) The Commissioner, Allahabad Division, Allahabad (3) The Director, Board of Revenue, Uttar Pradesh (4) The Administrator, H A Nagar Mahapalika. Allahabad. The claimant could have easily summoned anyone from the aforesaid departments. some of whom were in Allahabad itself, who could produce the relevant records or even the communication received from the Government to the effect that a decision had been taken to renew the lease. But nothing of the sort was done. A decision taken by the Government can only be proved by production of relevant records by some B authority or officer of the concerned department of the Government and not in the manner attempted to be done in the present case. The plea raised by the claimant that the Government had taken a decision to renew the lease in his favour is therefore not established by the evidence on record.

21. There are other circumstances which also throw great doubt upon the genuineness of the aforesaid letters. In the first letter of 28.7.1987 it is mentioned that "the Government after having due consideration had agreed to execute a new residential lease in place of the expired lease with effect from 25th May, 1987". According to the claimant his lease expired on 7.7.1987 or even if it treated as 8.6.1987 as discussed earlier there was no occasion for D the Government to execute a new lease with effect from 25.5.1987 as mentioned in the letter. That apart. the process of renewal of lease of such a large area is an extremely complicated one. The Nazul Department and .also the Collector in the District where the land is situate have to take various steps like survey and measurement of the plot, preparation of map and have E to make several reports which in turn have to be sent to the Government at Lucknow, where the proposal is examined at various stages by different sections. It is almost impossible to believe that even though the notification under Section 4( I) and 6 to acquire land had been published on 7 .1.1987 and 6.3.1987 respectively, the said fact was not noticed by anyone dealing with the matter and the Government took a decision to execute a fresh lease. F Various steps which have to be taken in the matter of renewal of lease are quite cumbersome and as the Government machinery moves, it is an unduly long time taking process. The earlier lease which had expired in 1937 was renewed almost after 8 years in the year 1945. Though.the lease expired in June, 1987, the claimant wants us to believe that in his case the Government G took the decision within a month to execute a new lease in his favour and that too for a huge area of 10920 square yards. It is therefore not at all possible to believe that any order was passed by the Government to renew the lease.

22. The Reference Court taking into consideration the fact that the Government had passed an order for renewal of the lease has held that Ravindra H Kumar Tandon was the owner of the property even after 7. 7.1987 and he was :1 ' -i.. KIRAN TANDON v. ALLAHABAD DEVELOPMENT AUTHORITY [G.P. MA THUR, J.]485 entitled to receive the entire amount of compensation. The learned Addi. A District Judge, it seems, lost sight of Chapter V of Transfer of Property Act which deals with leases of immovable property. In view of Section 105 of the said Act the lease of immovable property is a transfer of right to enjoy such property, made for a certain time, in consideration of price paid or promised. The rights and liabilities of lessor and lessee are given in Section 108. Section B I I !(a) clearly lays down that a lease of immovable property shall determine by efflux of the time limited thereby. Therefore, the claimant can in no circumstances be treated to be the owner of the land and his right to receive compensation has to be determined treating him to be the lessee of the property.

23. The question which, therefore, arises is having regard to the fact C that the claimant was only a lessee of the acquired land, whether he would be entitled to entire amount of compensation. Leasehold rights being limited in nature and entirely different from ownership right, a lessee is not entitled to the entire amount of compensation for the acquired land. The High Court has held that claimant wouid be entitled to 50 per cent of the amount and balance would be payable to the State Government..

24. Radha Charan v. Secretary a/Stale AIR (1943) Allahabad 238 is a case from Allahabad city itself where a considerable area on the Bank Road was acquired by the Government for Allahabad University in the year 1930. The Division Bench held that it is a full owner of land who normally gets the entire amount of compensation and there is no reason why a person who holds a lease should get compensation as an owner. It was further held that the amount of compensation he would get would depend upon the terms of the lease and the length of time that he might be expected to remain in possession of the property. In lnder Parshadv. Union of India, (1994] 5 SCC 239 the appellant had obtained a perpetual lease of Nazul land from the p Government. The High Court had apportioned the compensation as 75 per cent for the lessee and 25 per cent for the Government. In appeal to this Court it was contended that the Government being the owne( of the land, it could not acquire its own interest therein and it was only the appellant's right and interest in the perpetual lease that was acquired therefore he was entitled to the entire amount of compensation. It was held that where the Government G leases its land and 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 Act .for getting such land. It was further held that where the land is granted on lease the Government's power to resume the land is subject to H A rron-fulfilment of the terms and conditions of the lease by the lessee and so long as the lessee acts and complies with the covenants contained in the lease or grant, the right to resumption in terms of the lease or grant would not arise. But when the land is required for public purpose, the Government should get absolute title thereof free from all encumbrances and compensation becomes payable for the lease hold right or interest held by the lessee or grantee. Having regard to the fact that the appellant had perpetual lease the order made by the High Court awarding 75 per cent of the compensation amount to the appellant was affirmed. In Ratan Kumar Tandon and Ors. v. State of Uttar Pradesh, AIR ( 1996) SC 2710 keeping in· view the fact that .., . . acquisition was made 7 years prior to the expiry of the lease, the High Court c directed the apportionment of the compensation amount in the ratio of 50:50. The State of U.P. did not challenge the apportionment of compensation by preferring an appeal to this Court and the claimant alone preferred an appeal. Having regard to the features of the case and also the fact the State did not file an appeal, it was held that it was not a fit case to reverse the judgment of the High Court.

25. In the present case, as per our finding, lease expired on 8.6.1987 and possession was taken over on 16.6.1987. However even according to the case set up by the claimant, the possession of the land was taken over just …. 21 days before the expiry of the lease. In such circumstances, we are of the opinion that the claimant should get 20 per cent of the compensation amount and the balance 80 per cent is payable to the State Government.

26. Shri Gupta has also assailed the finding of the High Court regarding the amount of compensation fixed for the building. The High Court has held -… that the report of the consulting engineer filed by the claimant shows that while assessing the value of the building he had also taken into consideration the land underneath the same which was more than 400 square meters and consequently the value of the land had been assessed all over again. There .,, ~ is another fallacy in his report. He has assessed the age of the building from the time of its renovation. There is no evidence that the foundation, walls and roof had been made all ov~r again when renovation was done, nor it appears G logical. So, the whole method of calculation was faulty. We are of the opinion that the view taken by the High Court that the value of the building which was more than 90 years old is Rs. 60,000 is perfectly correct and calls for no interference. Similarly we find no ground which may warrant interference with the assessment made by the High _Court regarding the value of the trees. 1' '

27. Shri Gupta has also submitted that the award of cost to the ADA KIRAN TANDON v. ALLAHABAD DEVELOPMENT AUTHORITY [G.P. MATHUR. JJ487 by the High Court was not justified. In our opinion, the High Court having A accepted the appeal of the ADA and modified the award of the Reference Court the direction regarding cost made by it was perfectly justified.

28. In view of discussion made above, the Civil Appeals preferred by Smt. Kiran Tandon are dismissed and the Appeal filed by ADA is allowed. The judgment and decree of the High Court is modified to the extent that the B compensation determined for the land shall be apportioned 20 per cent for tile claimant and 80 per cent for the State Government. The statutory sum under sub-section (I-A) and the solatium under sub-section (2) of section 23 shall be modified accordingly.

29. Before parting with the case we want to place on record that the C learned counsel for the State of U.P. did not argue even a single word and only said that the. brief was entrusted to him only 2 or 3 days earlier. The High Court has also made some comments in the impugned judgment as to how the case was conducted on behalf of State of U.P. The office is directed to send a copy of the judgment to the Chief Secretary, U.P. Government for D his information and appropriate action in this regard. B.S. Appeals dismissed/allowed.