Research › Search › Judgment

Jharkhand High Court · body

2003 DIGILAW 1114 (JHR)

Sukhram Singh v. State Of Bihar (Now Jharkhand)

2003-09-10

VISHNUDEO NARAYAN

body2003
JUDGMENT Vishnudeao Narayan, J. 1. This appeal at the instance of the appellant has been preferred against the impugned judgment and award dated 10.7.1989 and 25.7.1989 respectively passed in Land Acquisition Reference Case No. 89 of 1986 by Shri Prabhu Nath Lall, Land Acquisition Judge, Dhanbad where by and whereunder the said reference case was allowed in part. 2. The State of Bihar (now Jharkhand) had acquired 74.57 acres of land of village Jharna P.S. Jharia, District Dhanbad for B.C.C.L. for the construction of magazine vide notification dated 30.7.1983 under Section 4 of the LA Act (hereinafter referred to as the said Act) and the declaration under Section 6 of the said Act was also made on 30.7.1983 and the notification under Section 4 and the declaration under Section 6 of the said Act were published in the District Gazette on 16.8.1983 and notice under Section 9 was issued to the appellant Sukhram Singh along with Rajaram Singh, Joyram Singh and Sheo Kumar Singh in respect of 12.81 acres of land out of the acquired land showing the area and the nature of the land therein and all the persons aforesaid are the co-owners being the sons of their mother Tulsi Devi, Rajaram Singh died during the pendency of the acquisition proceeding. Jairam Singh and Sheo Kumar Singh are respondent Nos. 2 and 3 in this appeal whereas respondent Nos. 4 to 9 are the sons of Rajaram Singh deceased. Award No. 33 in respect of 11.12 acres of land, award No. 34 in respect of 62 decimals of land and award No. 58 in respect of 98 decimals of land total being 12.72 acres of land were prepared in the name of the appellant along with Rajaram Singh, Sheo Kumar Singh and Joyram and the compensation in respect thereof was received by them under protest on 11.10.1985 in L.A. Case No. 30 of 1983-84 in respect of the said acquisition. The compensation was assessed @Rs. 28,560/- Rs. 17,860/- Rs. 9,320/-, Rs. 14,228, Rs. 4,760/-, Rs. 17,860/-, Rs. 2,500/- and Rs. 2000/- in respect of Bahal land, Kanali land, Vaid land, Gora I, Gora II Bandh land, Gora III and parti land respectively as per rate report (Ext. A) prepared by the Land Acquisition Authority. Delivery of possession of the land under acquisition was taken on 21.12.1985. 3. The appellant along with respondent Nos. 4,760/-, Rs. 17,860/-, Rs. 2,500/- and Rs. 2000/- in respect of Bahal land, Kanali land, Vaid land, Gora I, Gora II Bandh land, Gora III and parti land respectively as per rate report (Ext. A) prepared by the Land Acquisition Authority. Delivery of possession of the land under acquisition was taken on 21.12.1985. 3. The appellant along with respondent Nos. 2 to filed there separate applications under Section 18 of the said Act before the Collector, Dhanbad on 5.11.1985 in respect of award No. 33, award No. 35 and award No. 58 in L.A. Case No. 30 of 1983-84 which was referred to the Land Acquisition Court by the Collector under Section 19 of the said Act. 4. The case of the appellant is that the compensation of the acquired land is inadequate and much below the prevailing market price and the prevailing market price of the land under acquisition on the date of notification was @ Rs. 90,000/- Rs. 45,000/- and Rs. 40,000/- per acre regarding Bahal land, Bastubari land and Ail land and the nature of the land has been wrongly spelt in the award. It is alleged that 10.66,0.51 and 0.04 acres of land are Bahal land, Bastubari land and Ail land under award No. 33. It is alleged that 11 decimals of land and 51 decimals of land under award No. 34 are Bahal and Bastubari land respectively and the prevailing market price on the day of the notification under Section 4 of the said Act was Rs. 90,000/- per acre and Rs. 45,000/- per acre in respect of Bahal land and Bastubari land. It is also alleged that land under acquisition of award No. 58 is Bahal land, the prevailing market price of which is Rs. 90,000/- per acre. It is also alleged that there was a house consisting of three rooms and a pucca well and along with 11 trees of Mahua on the land under acquisition as per award No. 33 for which no compensation has been awarded. 5. The learned Court below framed the following issues for adjudication in this case : (i) Whether the compensation paid by the Land Acquisition Department in the above acquired land is low and inadequate and if so what will be the proper quantum of compensation? 5. The learned Court below framed the following issues for adjudication in this case : (i) Whether the compensation paid by the Land Acquisition Department in the above acquired land is low and inadequate and if so what will be the proper quantum of compensation? (ii) Whether the classification of acquired land shown by the land acquisition department and the compensation paid on that basis is wrong and if so what will be the actual classification of acquired land? 6. In view of the oral and documentary evidence on the record the learned Court below has held that compensation of the acquired land on the basis of the rate report (Ext. A) collected from the registration office has been rightly fixed and it is just and proper. It has also been-held that the claim for compensation of the house, pucca well and Mahua trees in respect of the land under acquisition under award No. 33 has been made at very belated stage and the appellant has not filed any objection under Sections 9 and 11 of said Act and hence at this belated stage it cannot be believed that there was a house consisting of three rooms and a pucca well and trees on the acquired land. The learned Court below has however held that the classification of land shown in the valuation khatiyan on the basis of which the compensation of the acquired land has been fixed is wrong and it should be classified on the basis of the classification of land appearing in the notice (Ext. 1/a) under Section 9 of the said Act and land of plot No. 162, 176/1, 164 and 168 are Bahai land and plot No. 163 is Gora II land as per Ext. 1/a and the classification of the aforesaid plots in the awards aforesaid has wrongly been described and the amount of compensation has to be assessed, accordingly, as per the classification of the land appearing in Ext 1/a but the classification of the rest of the acquired land under award Nos. 33, 34 and 58 is in accordance with the notice Ext. 1/a under Section 9 of the said Act. 33, 34 and 58 is in accordance with the notice Ext. 1/a under Section 9 of the said Act. In view of the findings aforesaid the learned Court below partly allowed the reference in respect of the awards aforesaid directed to prepare fresh award calculating the compensation of the land as per amended classification of the lands as per the rate report aforesaid along with solatium and interest etc. 7. Assailing the impugned judgment it has been submitted by the learned counsel for the appellant that the impugned judgment allowing the claim of the appellant in part is contrary to law and against the weight of the evidence and the learned Court below has erred in not accepting the classification of plot Nos. 158, 160, 163, 165 and 176/2 which are Bastubari land and compensation in respect thereof ought to have been awarded @ Rs. 45,000/- per acre. It has also been submitted that there had been acquisition of 12.81 acres of land vide award Nos. 33, 34 and 58 whereas compensation has been paid for land less than that. It has also been alleged that as per the evidence on the record it is established that there were a house consisting of three rooms and a pucca well and no compensation in respect thereof has been awarded by the Collector and it has also been wrongly negatived by the learned Court below. It has also been contended that prevailing market rate of that Bahal land is Rs. 90,000/- on the date of the acquisition and the evidence on the record establishes the said prevailing rate but the learned Court below has erred in not awarding compensation of the Bahal land @ Rs. 90,000/- as well as of the Bastubari land @ Rs. 45,000/- per acre. Lastly it has been contended that the learned Court below also erred in awarding compensation in respect of 4.36 acres of land as parti land whereas these lands are Bastubari land. Lastly it has been contended that the evidence brought on the record on behalf of the appellant are ex- parti which has not been rebutted by the State of Bihar and Ext. 2, the sale deed evidences the fact that Gora II land was sold @ Rs. 250/- per katha. Lastly it has been contended that the evidence brought on the record on behalf of the appellant are ex- parti which has not been rebutted by the State of Bihar and Ext. 2, the sale deed evidences the fact that Gora II land was sold @ Rs. 250/- per katha. In support of his contention reliance has been placed upon the ratio of the case of Chimanlal Hargovinddas v. Special Land Acquisition Officer, Poona and Anr., AIR 1988 SC 1652 . 8. It has been submitted by the learned counsel for the respondent-state that the compensation awarded to the appellant is just and proper at the rate mentioned in the rate report (Ext. A) which has been prepared on the basis of the records from the registration office regarding the prevailing rate of sale of the land of the different categories of land of the adjoining village in view of the fact that no document of sale was found in respect of any category of land of village Jharna in the registration office. It has also been submitted that the evidence brought on the record by the appellant regarding the prevalent sale rate has been rightly rejected by the learned Court below and for that reasons have been accorded in the impugned judgment by the learned Court below. It has also been submitted that the rate of sale as per Ext. 2 can never form the basis for ascertaining the compensation of the land in acquisition in view of the fact that the said sale deed is in respect of a very small portion of land which is fit for construction of the house and in the normal course the small portion of land fetches higher price and, therefore Ext. 2 can never form the proper basis for ascertaining the correct valuation of the land under acquisition at the relevant time. It has also been submitted that the appellant had never raised any contention earlier regarding the existence of the house and well as well as of the trees existing on the land under acquisition when notice under Section 9 of the said Act was served on them and at a belated stage their claim in respect thereof cannot be acceded to and the learned Court below has rightly negatived the claim of compensation of the appellant in respect thereof. It has further been submitted that the discrepancies appearing in the classification of the land under acquisition has been rightly set right by the impugned judgment and in this view of the matter there is no illegality in the impugned judgment and award. 9. There is no denying the fact that the land of the appellant situate in village Jharna, P.S. Jharia, District Dhanbad was acquired by the respondent State vide notification dated 30.7.1983 under the Section 4(1) of the said Act which was published in the District Gazette on 16.8.1983 and declaration under Section 6 was also published on that very day in the District Gazette. There has also been a notification under Section 9 of the said act. It is an admitted fact that the appellant is the raiyat of the land under acquisition and he stand recorded in respect thereof in the Survey Records of right along with his three brothers aforesaid. There is also no denying the fact that the respondent State made classification of the land under acquisition. The case of the appellant is that compensation assessed in respect of the land in question is very low and inadequate and is not according to the market rate prevailing in the area on the day of the notification under Section 4 of the said Act and the compensation so assessed by the respondent-State is not based on any legal and relevant document. Their case is that the prevailing market price of Bahal land is Rs. 90,000/- per acre whereas the Bastubari land i.e. homestead land is Rs. 45,000/- per acres and ail land is Rs. 40,000/- per acre and the classification of the land under acquisition has not been made correctly and there is no rationale for the respondent-State to determine the rate of awarding compensation of the land under acquisition and it has been settled by plethora of judicial pronouncements of this Court as well as of the Apex Court that the compensation should be paid to the claimant of the land under acquisition taking into consideration the market value of the land on the date of publication of the Notification under Section 4(1) of the said Act. In the case of Suresh Kumar v. Town Improvement Trust Bhopal, 1989 BLJR (NOC) 21 SC it has been observed by the Apex Court that "it is true that the market value of the land acquired has to be correctly determined and paid so that there is neither unjust enrichment on the part of the acquirers nor undue deprivation on the part of the owner. Section 23 of the Act enumerates the matters to be considered in determining compensation. The first to be taken into consideration is the market value of the land on the date of publication of the notification under Section 4(1). The market value is that of a village vendor and a willing purchaser. A willing vendor would naturally take into consideration such facts as would contribute to the value of his land including its unearned increment. A willing purchaser would also consider more or less the same factors. There may be many ponderable and imponderable factors in the such estimation or guess work. Section 24 of the said Act enumerates the matters which the Court shall not take into consideration in determining compensation. Section 25 provides that the amount of compensation award by the Court shall not be less than the amount awarded by the Collector under Section 11. It is an accepted principle that the land is not to be valued, merely by reference to the use to which it has been put at the time at which its value has to be determined i.e. on the date of the notification under Section 4, but also by reference to the use to which it is reasonably capable of being put in the future. A land which is certainly or likely to be used in the immediate or reasonably near future for building purposes but which at the valuation is waste land or has been used for agricultural purposes, the owner, however willing a vendor he is, is not likely to be content to sell the land for its value as waste or agricultural land, as the case may be. The possibility of its being used for building purposes would have to be taken into account. It is well established that the special, though natural, adaptability of the land for the purpose for which it is taken is an important element to be taken into consideration in determining the market value of the land. The possibility of its being used for building purposes would have to be taken into account. It is well established that the special, though natural, adaptability of the land for the purpose for which it is taken is an important element to be taken into consideration in determining the market value of the land. In such a situation, the land might have already been valued as more than its value as agricultural land if it had any other capabilities. In sum, in estimating the market value of the land or all of the capabilities of the land and or all its legitimate purposes to which it may be applied or for which it may be adopted are to be considered and not merely the condition it is in and the use to which it is at the time applied by the owner. The proper principle is to ascertain the market value of the land taken into consideration the special value which ought to be attached to the special advantage possessed by the land namely its proximity to develop urbanized areas." In the case of Shambhu Nath and Ors. v. State of Bihar, 1989 PLJR 676 it has been observed that the compensation should be paid taking into consideration various factors including the location, importance, prospect and purpose of the land sought to be acquired and the location of the land takes it out from the purview of agricultural land. In the case of Chimanlal Hargobinddas (supra), the Apex Court has observed that the market value of land must be determined as on crucial date of publication of notification under Section 4 and has also prescribed general guidelines therein to be applied with understanding informed with common sense. 10. Now on the basis of the oral and documentary evidence on the record coupled with the guidelines referred to above, the market value of the land in question prevailing on 16.8.1983 has to be ascertained for payment of just and adequate compensation to the appellant. It is essential to mention at the very out set that the land acquired in this case is in village Jharna. There is no averment in the reference petition of the appellant regarding the location of the land and its close approximity with any urbanized area. It is essential to mention at the very out set that the land acquired in this case is in village Jharna. There is no averment in the reference petition of the appellant regarding the location of the land and its close approximity with any urbanized area. It, therefore, appears in the absence of any averment to that effect that the acquired land is in a remote village devoid of any modern facilities and any evidence brought on the record which is not in consonance with the averments made in the reference petition cannot be looked into regarding the location of the acquired land appearing in the testimony of the witnesses of the appellant. AW 1 has deposed that on the date of the notification the prevailing rate of sale of the acquired land was Rs. 1,000/- to Rs. 15,000/- per katha. AW 2, Shukhram Singh, the appellant has stated that the rate of sale of the acquired land at the relevant date was Rs. 1200/- per decimal. According to AW 3, the prevalent rate of sale of the land at the relevant time was Rs. 1200/- per decimal. AW 4 has deposed that market rate of sale of the acquired land was Rs. 2500/- per katha at the relevant time. He has also deposed that presently, the rate of sale in Rs. 5000/- per katha. According to AW 5, the rate of sale of the acquired land was Rs. 2000/- per katha at the relevant time and presently it is being sold at Rs. 8000/- to Rs. 10,000/- per katha. AW 6, respondent No. 4 has deposed that at the time of the acquisition the prevalent rate of sale was Rs. 90,000/- Rs. 45,000/- and Rs. 40,000/- per acre of Bahal land, Bastubari land and Ail land. AW 8 has also deposed that rate of sale of the acquired land was Rs. 2,000/- per katha at the relevant time. It appears from the facts elicited "in their cross- examination that these witnesses have not either disposed of or sold any land in the close approximity of the date of the acquisition of the aforesaid land. It also appears from the facts elicited in their cross-examination that these witnesses have also not acquired or purchased any land in the close vicinity or approximity of the acquired land at the relevant time. It also appears from the facts elicited in their cross-examination that these witnesses have also not acquired or purchased any land in the close vicinity or approximity of the acquired land at the relevant time. No sale deed evidencing the rate of sale as deposed by them of the land situate in village Jharna has been brought on the record by the appellant. Therefore, there is no iota of legal evidence on the record to substantiate the fact regarding the rate of sale of the land of village Jharna on that date of acquisition or immediately prior to that as stated by the witnesses of the appellant. It further appears that they have stated the rate of sale in their evidence on mere guess and imagination which stands uncorroborated by any legal evidence. Ext. 2 is the sale deed of village Patrakulhi and adjoining village of Jharna and is in respect of two katha of Gora II land for Rs. 500/-. This sale deed is dated 17.9.1981, i.e. to years prior to the relevant date of acquisition. It appears from perusal of Ext. 2 that the two kathas of land in a part of plot No. 485 having an area of 60 decimals and the boundary in the sale deed shows that there is a house of Shiari Beldar adjacent west of this two kathas of land. Therefore, the land acquired under Ext. 2 is fit for building a house thereon and that is why the rate of this land is Rs. 250/- per katha. Therefore, Ext. 2 cannot be rationale of a reasonable basis for determining the market price of the land under acquisition which is either agricultural land of different classification or parti land. Therefore, the learned Court has rightly discarded Ext. 2 as the basis for ascertaining the prevalent market price of the land in acquisition on the relevant date. The Collector has ascertained the prevailing market price of the different categories of land mentioned in the rate report Ext. A on the basis of the sale figure available in the registration office in respect of the land of village Patrakulhi, an adjoining village of Jharna as no sale figure of village Jharna was available. The Collector has ascertained the prevailing market price of the different categories of land mentioned in the rate report Ext. A on the basis of the sale figure available in the registration office in respect of the land of village Patrakulhi, an adjoining village of Jharna as no sale figure of village Jharna was available. Therefore, the rate of the land under acquisition of village Jharna fixed by the Collector on the basis of the sale figure of village Patrakulhi has its rationale and it cannot be said in the facts and circumstances of this case that the market price of the land under acquisition has been incorrectly and illegally ascertained and it is grossly inadequate or law. 11. There were certain discrepancies in the classification of the land as per Ext. 1/a vis-a-vis the awards and the learned Court below had taken not of the land has directed to refix the compensation of those plots i.e. plot Nos. 163, 162, 176/1, 164 and 168 as per their classification as mentioned in the notice Ext. 1/a under Section 9 of the said Act. Therefrom, there is no illegality in respect thereof. The learned Court below has rightly negatived the claim in respect of the house, well and tree of the appellant because they did not deliberately raise the said matter Immediately soon after the notification under Section 9 of the said Act and at the belated stage on credence can be placed in respect thereof. Therefore, the finding of the learned Court below in respect thereof does not require any modification. Plot Nos. 158, 160 and 176/2 are parti land and plot Nos. 163 and 165 are Gora II and Gora I land respectively and compensation in respect thereof has been determined accordingly. There is no material on the record to come to the conclusion that the aforesaid plots are Bastubari land. In this view of the matter it cannot be said that the learned Court below has committed an error in respect thereof in ascertaining the prevailing market price at the relevant date. However, as per award Nos. 33, 34 and 35 taken together compensation has been assessed for 12.72 acres of land whereas Ext. 1/a shows that there was acquisition of 12.81 acres of land. This discrepancy has been caused due to the error in. However, as per award Nos. 33, 34 and 35 taken together compensation has been assessed for 12.72 acres of land whereas Ext. 1/a shows that there was acquisition of 12.81 acres of land. This discrepancy has been caused due to the error in. describing, the correct area of plot No. 161 which is admittedly a Banal land. The area of plot No. 161 is 59 decimals as per Ext. 1/a whereas in the award Nos. 33, 50 decimals have been mentioned as the area of plot No. 161. This is an inadvertent error. The learned Court below has, due to inadvertence, missed to notice this discrepancy. Therefore, the appellant is entitled to have compensation of 9 decimals of Bahal land as per the sale rate Ext. A. 12. Considering the evidence oral and documentary on the record there appears no illegality in the impugned judgment and award except the fact that the appellant is also entitled for compensation of 9 decimals of Bahal land as per the rate report Ext. A and the award is to be modified to that extent. 13. There is no merit in this appeal and it fails. The impugned judgment and award is affirmed with the modification as stated above in respect of 9 decimals of Bahal land. The appeal is hereby dismissed. In the facts and circumstances of this case there shall be no order as to costs.