State Of Bihar v. Maheshwari Prasad — 1996 DIGILAW 169 (PAT)

Judgment Choudhary S. N. Mishra, J. 1. This first Appeal has been tiled on behalf of the claimant appellant against the judgment and decree passed by the reference court dated 3-4-81 in a Land acquisition case No.38/48 of 1977/1979 which arises out of an award with respect to plot No.2491 Khata no.444 having an area of 1.68 acres of land in village lalkhapur Dumra, P. S. and District Sitamarhi. The case of the claimant appellant in short is that the land measuring 1.60 acres of land pertaining to the aforesaid plot which is situated quite close in the Sitamarhi cpllectorate and the District Judges court on the eastern side of Sitamarhi p. W. D. Road. It is further alleged that the land, in question, is first class Bhit land having irrigational facilities. Prior to taking of possession, the appellant used to raise three crops per year. During the extension of Dumra township and creation of Sitamarhi district the potentiality of the land has very much increased and became an ideal site for both commercial and residential purposes even prior to the acquisition there were number of government buildings and the houses of lawyers and other respectable persons. After receipt of the notice under section 9 of the Land Acquisition Act (hereinafter referred to as the act), the object appellant filed objection on 14-7-73 claiming compensation at the rate of Rs.8,000 per katha besides 15% statutory allowance and other damages including interest from the date of possession taken by the Department in the year 1972 till the declaration of award under Sec.11 of the Act. In support of the claim, the claimant filed as many as fourteen sale deeds of the year between 1968 to 1973, all relating to adjourning plot being plot nos.2501, 2453 showing the sale price in between 7890/- to 8000 per katha. The claimant further stated that the acquired land is much superior to the land sold as mentioned above. The Superintending engineer, Sagmati Project took possession of the land under acquisition and fixed valuation amounting to Rs.8125606 paise only i. e. at the rate of 2000 per katha only. The claimant being aggrieved by the fixation of extremely low compensation filed a petition before the Special Land Acquisition Officer, bagmati Project, Sitamarhi for reference under Sec.18 of the Act. The Superintending engineer, Sagmati Project took possession of the land under acquisition and fixed valuation amounting to Rs.8125606 paise only i. e. at the rate of 2000 per katha only. The claimant being aggrieved by the fixation of extremely low compensation filed a petition before the Special Land Acquisition Officer, bagmati Project, Sitamarhi for reference under Sec.18 of the Act. It may be mentioned here that the Special land Acquisition Officer though fixed the compensation at the rate of Rs.3000 per katha but finally determined rs.2000 after deducting Rs.1000 for development cost. The learned Special judge on the basis of the pleadings of the parties, has framed various issues out of which issue No.3 reads as follows: "is the awardee-objector entitled for enhancement of valuation of the rate of rs.8000 per katha and if so. is entitled for statutory damages at the rate of 15% on the market value of the acquired and with interest from the date of possession to the date of payment of compensation in this case. " The Learned Special Judge has accepted the contention of the claimant that the land, in question, is a first class bhit and the position including the potentiality, of the land as described above but unfortunately fixed the rate of the land under acquisition at the rate of 3000 per katha i. e. at the rate 68700 per acre only the learned Special Judge ultimately answered the question in the following terms: "so in this particular case I find that three sale deeds were available for the same land for the same time and period and on the basis of that the Special Land acquisition Officer valued the land and it was immaterial for him to enter into potentiality of such land for building purposes. But I dont find under what circumstances the Special Land Acquisition Officer has deducted the price of the land under acquisition for improvement of land and on the ground that for block rate a certain percentage of price be slashed down. Thus on a consideration of the facts and material available before me I fix the price of land under acquisition at the rate of Rs.3000 pe katha, i. e. at the rate of Rs.68700 per acre. The area of land under acquisition is 1:68 acre. Therefore, the value of the land comes to Rs.1,15,416. Thus on a consideration of the facts and material available before me I fix the price of land under acquisition at the rate of Rs.3000 pe katha, i. e. at the rate of Rs.68700 per acre. The area of land under acquisition is 1:68 acre. Therefore, the value of the land comes to Rs.1,15,416. The ob-jector-awardee has already, received Rs.81,256,06 paise and, therefore, the awardee is entitled to receive the balance compensation money of Rs.34.159.94/- paise only. I further hold that the awardee is entitled for 15% statutory damages over Rs.34, 159.94 paise and interest at the rate of rs.6 per cent per annum from the date of possession till the date of realisation but the amount of interest should not exceed that of the Principal. Accordingly this point is answered partly in favour of the objector-awardee. " 2. Being aggrieved and dissatisfied with the judgment and decree of the special Judges, the appellant State has filed the instant appeal. The principal and in fact the only argument of the learned Counsel for the appellant is that the Special Judge has neither considered the documentary evidence nor has examined any person connected and/or any way related with the land situate nearby the land under acquisition and accordingly it is submitted that the judgment and decree under appeal is wholly illegal and cannot be allowed to stand. It may be mentioned here that in this case only one witness, on behalf of the appellant, was examined, who joined as typist in the office of the land Acquisition Officer only in 1977, much after issuance of the notification, for acquisition of the land in question whereas the claimant has examined as many as eight witnesses in support of his claim besides number of documents as mentioned above. 3. Mr. Mazumdar, learned counsel for the claimant respondents, on the other hand, contradicted the argument of the appellant. He has placed the entire judgment of the Court below and has submitted that the learned Special judge while passing the impugned judgment has relied upon various documentary evidences. 4. I have perused the judgment of the Special Judge and I do not find any illegality in the same. The learned judge has considered the documents both oral and documentary and passed the impugned judgment. 4. I have perused the judgment of the Special Judge and I do not find any illegality in the same. The learned judge has considered the documents both oral and documentary and passed the impugned judgment. In that view of the matter, the submission of the learned Counsel for the appellant State is not sustainable and accordingly rejected. 5. The second aspect of the matter is that the claimant respondent has filed a cross appeal in this appeal on the ground that the valuation fixed by the Land Acquisition Judge is not correct. According to (he learned Counsel for the responden the learned Judge while fixing the valuation has completely overlooked the material evidence. It is submitted that a block of 10.41 acres of land which includes the land of the respondent has been acquired in the village which comes under the notification for the purpose of constructing the bagmati project. It is further submitted that in the instant acquisition proceeding five separate reference under section 18 of the Land Acquisition Act have been made as the instance of the five claimants including the respondent. All the five reference cases were heard separately and the case of the respondent has been decided much earlier whereas reference case of claimant rakesh Kumar was disposed of by the learned Special Judge much after the case decided of the respondent. As has been stated above, the valuation of land of the appellant was fixed at Rs.3000/-per katha whereas reference case No.56/77 relating to one of the claimant rakesh Kumar was decided on 30th march, 1991 by the Special Judge Land acquisition, Sitamarhi whereby the learned Judge has fixed the valuation of the land of the same block acquired under the same notification at the rate of 6800 per katha. The certified copy of the judgment and decree passed in the said acquisition case has been made. Annexures A and B to the petition filed under Order XLI and B to the petition filed under Order XLI, Rule 27 of the code of Civil Procedure. It is submitted that the judgment passed subsequently in the aforesaid reference case is a material piece of evidence in order to decide the case in terms of the cross objection filed by the respondent. It is submitted that the judgment passed subsequently in the aforesaid reference case is a material piece of evidence in order to decide the case in terms of the cross objection filed by the respondent. As has been stated above, the total area of the land measuring 10.41 acres situated in the village, in question, comprising different plots were acquired under single notification and all these plots situated just by the side of the Sitamarhi p. W. D. road within Dumra notified area and the entire lands which have been acquired under single notification are of the same quality and of the same valuation. In this background a prayer has been made that the said judgment and decree passed by the learned special Judge in the aforesaid reference case No.56/77 be admitted as an additional evidence for the purpose of just adjudication of the appeal. From the records it appears that the petition under Order XLI, Rule 27, C. P. C. filed on behalf of the respondent for taking the said judgment and decree as additional evidence, was heard on 14th march, 1996 which was not opposed and, as such, the same was allowed with consent of the Counsel appearing on behalf of the appellant. In the aforesaid reference case 56/77 one of the issues was framed as to whether valuation of the acquired land fixed by a Collector is correct or it should be enhanced to Rs.8000 per katha. Learned Special Judge on consideration of both oral as well as documentary evidence particularly several sale-deeds executed by the vendors in the vicinity of the land, in question, and on consideration of other material evidence, on record, has held that the claimant of the aforesaid reference case is entitled to receive the amount of compensation of his acquired land at the rate of 6000 per katha. He has further held that the claimant is also entitled to receive solatium at the rate of 30% and interest at the rate of 9% per annum on the entire amount of compensation from the date of taking possession of the land till final payment of the entire amount. As has been stated above, the learned Counsel for the appellant did not oppose the prayer of the respondent for taking the judgment and decree passed by the Special Judge in the aforesaid reference case as additional evidence. As has been stated above, the learned Counsel for the appellant did not oppose the prayer of the respondent for taking the judgment and decree passed by the Special Judge in the aforesaid reference case as additional evidence. The said judgment and decree is a vital piece of evidence for deciding the cross appeal filed by the respondent. In this connecjion it may be mentioned here that the Revenue and Land Reform Department, government of Bihar, made a quarry from the Additional Collector, Sitamarhi, vide D. D. letter No.2929 dated 30-6-1975 quoting the earlier report of Sri G. R. Patwardhan, Collector, regarding the fixation of compensation amount of the acquired land of the claimant respondent. The additional Collector vide O. N. letter No.129 dated 1-8-75 has recommended for higher price. 6. I have perused the judgment passed by the learned Special Judge in the aforesaid reference case 56/77 wherefrom it appears that the learned judge has considered each and every document filed by the parties and also considered oral evidence in detail and passed the judgment fixing valuation of the land under reference at the rate of rs.6,000 per katha. 7. Learned Counsel for the respondent submits that in such cases the judgment and decree passed by the special Judge arising out of the same land acquired, under single notification which can be taken as a relevant evidence for just decision of this appeal. In support of his contention learned Counsel has relied upon a decision in the case of Special Land acquisition Officer and another etc. V/s. Sri siddappa Omanna Tiimari and ors. reported in AIR 1995 SC 840 and also in the case of Harcharan V/s. State of haryana reported in 1983 BBCJ (SC)page 11, wherein it has been held in paragraph 3 as follows : "it is a well-settled principle that the best evidence with regard to evaluation of price of land in a proceeding for ascertainment of compensation for land acquired under the Act is the award of the Court, subject of course, to the comparison of the land areawise topographywise and usewise. The appellant sought amendment relying on this principle. The question is whether the High Court was justified in dismissing this petition in limine. The appellant sought amendment relying on this principle. The question is whether the High Court was justified in dismissing this petition in limine. Order VI, Rule 17 in terms provides that the court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be necessary for the purpose of determining the real questions in controversy between the parties. " In the case of Special Land Ac-quisition Officer (supra) it has been held that the award in respect of the same land covered under same notification cannot be ignored by the court while determining compensation payable for other acquired land covered under the same notification. As has been stated above, that the block of the land comprising 10.41 acres were acquired under one notification and the land of the claimant appellant are the same as that of the other claimants. In that view of the matter, the award given by the special Judge of the aforesaid reference case cannot be ignored while determining the compensation payable to the respondent in this particular case. As I have stated above, that the lands of the appellate as that of other claimants are the same and similar, lie within the notified area committee situated just near the Collectorate and the District judges court on the P. W. D. road, the claimant-appellant is also entitled to the same compensation as has been determined in case of other claimants similarly situated. That apart, the several sale-deeds executed by different persons with respect to the land in the vicinity of the acquired land which were sold at much higher rate that the compensation fixed by the Collector in the instant case. The best evidence, in my view, the judgment and decree passed by the Special Judge in relation to the different reference cases arising out of the same land acquired under the same and single notification which can be relied upon in determining the compensation payable to the respondents in this case as well. Accordingly, taking into consideration all relevant evidences and circumstances including the judgment and decree passed in the aforesaid reference case I fixed the compensation payable to the respondent in this case at the rate of Rs.6,000 per katha. Accordingly, taking into consideration all relevant evidences and circumstances including the judgment and decree passed in the aforesaid reference case I fixed the compensation payable to the respondent in this case at the rate of Rs.6,000 per katha. Accordingly I modify the judgment and decree of the Special judge to the extent that the appellant state of Bihar is liable to pay compensation to the claimant respondent with respect to the land acquired, at the rate of Rs.6,000 per katha and other benefits including the interest mentioned in the award of the learned Special Judge. 8 In the result, this appeal filed by the State of Bihar is dismissed whereas the cross appeal filed by the claimant-respondent is allowed to the extent indicated above. In the facts and circumstances, however, there shall be no order as to cost. Order Accordingly.