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2004 DIGILAW 643 (JHR)

State Of Bihar (Now Jharkhand) v. Bijoy Rajwar

2004-06-25

VISHNUDEO NARAYAN

body2004
JUDGMENT Vishnudeo Narayan, J. 1. This appeal at the instance of the opposite party-appellant has been preferred against the impugned judgment and award dated 20.8.1988 and 23.11.1988 respectively passed in land acquisition reference case No. 73 of 1985 by Shri Prabhu Nath Lal. Land Acquisition Judge, Dhanbad whereby and whereunder the reference was allowed in part determining the prevailing market price of the land under acquisition @ Rs. 700/- per decimal and the petitioners-claimant (respondent in appeal) were held entitled to receive the compensation at the said rate besides solatium, additional compensation and interest as per the Amending Act of 1984. 2. The State of Bihar (now Jharkhand) acquired 24.70 acres of land of Village-Saraidhela, Police Station-Jharia, District-Dhanbad vide land acquisition case No. 41 of 1977, 78 for the construction of the office and residence of the staff of Bharat Coking Coal Limited and 21.19 acres and 3.51 acres out of it were baid and parti land respectively and the notification dated 24.6.1977 was published under Section 4 of the Land Acquisition Act (hereinafter referred to as the said Act) and declaration under Section 6 of the said Act was also published on the same day in the District Gazette, Dhanbad. The land bearing Plot No. 4138/1 having an area of 40 decimals and Plot No. 4148/2 having an area of 60 decimals, total being one acre appertaining to Khata No. 175 belonging to the petitioners were also acquired in the said acquisition and nature of the said one acre land is baid. The award No. 12 of the Collector in respect of one acre of land aforesaid was made in favour of the petitioners- respondent and the compensation was determined @ Rs. 16,670/- per acre and a total sum of Rs. 19,170.50 was determined as compensation payable to the petitioners, which they have received under protest. Delivery of possession of the land under acquisition was also taken by the State of Bihar and it was handed over to Bharat Coking Coal Limited. 3. The petitioners filed an application under Section 18 of the said Act before the Land Acquisition Officer, Dhanbad in respect of award No. 12 which was referred to the Land Acquisition Court under Section 19 of the said Act. 4. The case of the petitioners is that the compensation of the acquired land is in-adequate and much below the prevailing market price. 4. The case of the petitioners is that the compensation of the acquired land is in-adequate and much below the prevailing market price. It is alleged that the land under acquisition should have been valued @ Rs. 1,00,000/- per acre as the said land is situated within the colony area of the Koyala Bhawan and within its boundary and the land was best for agricultural purposes but the same is now fit for construction for the residential houses and the said land has also been acquired for that very purpose. It is also alleged that the classification was made by the Land Acquisition Authorities wrongly and the said land under acquisition ought to have been classified as paddy land. 5. The opposite-party appellant has also filed its rejoinder stating, inter alia, therein that the compensation of the land under acquisition has been determined correctly as per the prevailing market price and its classification as baid land is also correct and it requires no interference by this Court. 6. In view of the evidence oral and documentary on the record, the learned trial Court has determined the compensation of the land under acquisition @ Rs. 700/- per decimal considering its potentialities having all urban facilities being in close vicinity of the town of Dhanbad and the land under acquisition is fit for construction of the house. In support of his finding he has relied upon the judgment of his own Court passed in land acquisition reference case Nos. 500 and 520 of 1985 and 70 of 1986 (Ext. 2) tried analogous which was in respect of the acquisition of the year 1973 of the land of Village Saraidhela read with the judgment of this Court passed in FA No. 241 of 1979 (Ext. 2/c) and in the earlier case the compensation was fixed @ Rs. 600/- per decimal whereas the Honble Court in the latter case aforesaid has assessed the compensation of the land under acquisition @ Rs. 700/- per decimal. In view of the findings aforesaid, the learned trial Court allowed the reference in part. 7. Being aggrieved by the impugned judgment, the opposite party appellant has preferred this appeal. 8. Bharat Coking Coal Limited also intervened in this case and was impleaded as respondent No. 3 and it brought the photocopy of the some documents on the record and all of them except one, were in Bangla script. 7. Being aggrieved by the impugned judgment, the opposite party appellant has preferred this appeal. 8. Bharat Coking Coal Limited also intervened in this case and was impleaded as respondent No. 3 and it brought the photocopy of the some documents on the record and all of them except one, were in Bangla script. The learned counsel for the Bharat Coking Coal Limited was directed to file its transliterated copy in Hindi for its proper consideration which could not be brought on the record and in course of hearing he also could not read those documents and in such a situation it has been submitted by him that the aforesaid documents brought on the record need not be considered in this appeal. 9. Assailing the impugned judgment it has been submitted by the learned counsel for the opposite party-appellant that the learned trial Court has not properly construed the oral and documentary evidence on the record in proper perspective and has wrongly relied upon Ext. 3, the sale deed dated 19.4.1976 and it is in respect of small piece of land and it cannot form a proper rationale for determination of the adequate compensation of the land under acquisition. It has also been submitted that the Land Acquisition Authorities have properly determined the compensation of the land under acquisition in accordance with the sale rate available in the Registration Office as per the sale report (Ext. G). Lastly, it has been contended that the learned Court below ought to have made deduction on account of the development charges of the land under acquisition out of the compensation so determined by the trial Court at least @ Rs. 25% and on this score also the impugned judgment suffers with infirmity and thus, the impugned judgment is unsustainable. 10. Lastly, it has been contended that the learned Court below ought to have made deduction on account of the development charges of the land under acquisition out of the compensation so determined by the trial Court at least @ Rs. 25% and on this score also the impugned judgment suffers with infirmity and thus, the impugned judgment is unsustainable. 10. In contra, it has been submitted by the learned counsel for the petitioners-respondent that the land under acquisition is in the close vicinity of the town of Dhanbad and it is situated in Village-Saraidhela and major portion of the land of this village stands acquired by Bharat Coking Coal Limited earlier and the land under acquisition is adjacent the said acquired land and the nature of the land stands changed from agricultural land and it is fit for construction of building and for that very purpose, the land under acquisition besides other lands had been acquired by the appellant for the Bharat Coking Coal Limited and the compensation determined by the Land Acquisition Authorities is grossly inadequate. It has also been submitted that in respect of the earlier acquisition made in the year 1973 for the Bharat Coking Coal Limited of the land of Village-Saraidhela, the compensation was determined @ Rs. 600/- per decimal vide Ext. 2 and the Honble Court in FA No. 241 of 1979 (Ext. 2/c) has also determined the compensation of the land of Village- Saraidhela acquired in the year 1964 @ Rs. 700/- per decimal and the price of the land has escalated thereafter but inspite of that he has no objection if the compensation as determined by the trial Court @ Rs. 700/- is allowed to the petitioners-respondent. However, he shall have no objection, if the deduction on the ground of development charges is made to the extent of 10% out of the compensation so determined by the trial Court. 11. Now the only point for consideration in this case is that as to whether the compensation of the land under acquisition determined and paid to the petitioners-respondent is just and adequate according to the market rate prevalent at the relevant period. 11. Now the only point for consideration in this case is that as to whether the compensation of the land under acquisition determined and paid to the petitioners-respondent is just and adequate according to the market rate prevalent at the relevant period. There is no denying the fact that one acre land of Plot No. 4138/1 and 4148/ 2 appertaining to Khata No. 175 situate is Village-Saraidhela of the petitioners-respondent was acquired by the opposite party-appellant for Bharat Coking Coal Limited for the construction of its office and residence for its employees and there was acquisition of 24.70 acres of land including the land of the petitioners-respondent. The notice under Section 4(1) and the declaration under Section 6 of the said Act were published in the District Gazette on 24.6.1977. The Collector made the award No. 12 in respect of the land under acquisition of the petitioners-respondent @ Rs. 16,670/- per acre considering the nature of the said land as baid land and the compensation as per the award aforesaid was received by the petitioners- respondent and possession has already been taken by the opposite party-appellant and it stands handed over to Bharat Coking Coal Limited. The case of the petitioners-respondent is that the compensation assessed in respect of the land in question is very low and inadequate and is not according to the prevailing market price on the date of the publication of the notification under Section 4 of the said Act and the compensation so assessed by the opposite party-appellant is not based on any legal and relevant document and the prevailing market price in the area is Rs. 1,00,000/- per acre. It is relevant to mention at the very outset that it has been settled by plethora of judicial pronouncements of this Court as well as 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 vender 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 to 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 of all its legitimate purposes to which it may be applied or for which it may be adapted 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 Hargovinddas v. Special Land Acquisition Officer, Poona and Anr., AIR 1988 SC 1652 , 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. 12. Let us now advert to the oral and documentary evidence on the record coupled with the guidelines referred to above for determining the adequate amount of compensation of the land under acquisition as per the prevailing market rate on the date of the publication of the notification under Section 4 of the said Act. 12. Let us now advert to the oral and documentary evidence on the record coupled with the guidelines referred to above for determining the adequate amount of compensation of the land under acquisition as per the prevailing market rate on the date of the publication of the notification under Section 4 of the said Act. It is an admitted fact emerging from the evidence oral and documentary on the record that Village-Saraidhela is on the main Dhanbad- Govindpur road which connects G.T. Road and it is in close proximity with the town of Dhanbad and it has become a part of the town of Dhanbad and there are all urbanized facilities available there. There has been acquisition of major portion of the land of this village for the office and residential colony of the Bharat Coking Coal Limited. There are also several institutions and market etc. there and it is now the hub of Dhanbad town. Bharat Coking Coal Limited had earlier acquired land of the close vicinity of the land under acquisition in this case for its office and residential colony for its staffs. Therefore, the nature of this land classified as baid land by the Land Acquisition Authorities has lost all its relevance and the land in question is homestead land fit for construction of residential houses thereon and considering as well as keeping that in view, the further acquisition has been made by the opposite party- appellant for Bharat Coking Coal Limited Ext. 2 and Ext. 2/c read with Ext. 3 are the most material documents on the record forming proper rationale for determining the adequate compensation of the land under acquisition aforesaid, Ext. 2 is the judgment dated 6.3.1986 of land acquisition reference case Nos. 500 and 520 of 1985 and 70 of 1986 of the Land Acquisition Judge, Dhanbad which is in respect of the acquisition of the land of Village- Saraidhela made vide notification dated 23.6.1973 under Section 4(1) of the said Act for Bharat Coking Coal Limited. Considering the evidence on the record in that case, the compensation was determined @ Rs. 600/-per decimal by the Land Acquisition Court of the land acquired. In FA Nos. 245 and 247 of 1979 (R) (Ext. Considering the evidence on the record in that case, the compensation was determined @ Rs. 600/-per decimal by the Land Acquisition Court of the land acquired. In FA Nos. 245 and 247 of 1979 (R) (Ext. 2/b) which was in respect of the acquisition of the year 1965 as per the notification dated 8.9.1965 regarding the land acquired in the close vicinity of Village- Saraidhela, the compensation was determined @ Rs. 400/- per decimal by this Court. It is needless to say that price has escalated in comparison to 1965 and here in this case at hand, the acquisition has been made in the year 1977 after 12 years of that acquisition. Under Ext. 2/c, which is the judgment of this Court in FA No. 241 of 1979, the compensation was enhanced @ Rs. 700/- per decimal. In this case, the acquisition was made in the year 1964 vide notification dated 29.7.1964 under Section 4 of the said Act. This acquisition is also of the land of Village- Saraidhela. Ext. 3 is the sale deed dated 19.4.1974 in respect of about nine decimals of land of Village- Saraidhela for Rs. 7000/- which shows that the prevailing market price of the land of Village- Saraidhela is about @ Rs. 800/- per decimal. This sale deed is one year prior to the date of the publication of the notification under Section 4(1) of the case at hand. The land in the sale deed has been acquired for the construction of the house. Considering the aforesaid documents, the learned trial Court has determined the prevailing market price of the land under acquisition in this case @ Rs. 700/- per decimal. I, therefore, see no illegality in the finding of the learned Court below in determining the compensation of the land under acquisition @ Rs. 700/- per decimal which appears to me as just and equitable in the facts of this case. Therefore, there is no illegality in the impugned judgment in respect thereof. However, the learned Court below has not even a deduction of the development charges out of the compensation amount so determined. In the case of Tejumal Bhojwani and Ors. v. The State of Uttar Pradesh, III (2003) CLT 160 (SC), it has been observed by the Apex Court that it would be appropriate to deduct development charges @ 25% from compensation awarded to the claimants. In the case of Tejumal Bhojwani and Ors. v. The State of Uttar Pradesh, III (2003) CLT 160 (SC), it has been observed by the Apex Court that it would be appropriate to deduct development charges @ 25% from compensation awarded to the claimants. The learned counsel for the petitioners-respondent has no objection for the deduction in the amount of compensation on the ground of development charges, but his contention is that it should be 10% in view of the fact that only one acre of land of the petitioners-respondent has been acquired in this case. In the present case, the total acquired land in the notification dated 24.6.1977 under Section 4(1) of the said Act is 24.70 acres and as such it would be appropriate if the development charges @ 25% is deducted from the compensation awarded to the claimants. The learned Court below has properly considered and weighed the evidence on the record and has rightly determined the compensation of the land under acquisition @ Rs. 700/- per decimal but, he ought to have given deduction on the ground of development charges @ 25% out of the awarded amount of compensation and as such the impugned judgment requires modification to that extent. 13. There is no merit in this appeal and it fails. The appeal is dismissed. The impugned judgment of the trial Court is affirmed with modification as stated above. Let the amended award be prepared in this case of the land under acquisition @ Rs. 700/- per decimal and there shall be a deduction of 25% from the awarded amount as development charges. There shall be no order as to cost.