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2007 DIGILAW 1748 (PAT)

Indrajit Narain Singh v. State Of Bihar

2007-11-07

S.K.KATRIAR

body2007
Judgment S.K.Katriar, J. 1. The applicant (appellant herein) has preferred this appeal under Sec. 54 of the Land Acquisition Act, 1894 (hereinafter referred to as the Act). It is directed against the judgment dated 3.9.1984, and the consequent decree, passed by the learned Subordinate Judge, Motihari, in Land Acquisition Case No. 1 of 1982, whereby he has in substance affirmed the award of the learned Land Acquisition Officer-cum-Collector of the District. We shall go by the description of the parties before the court below. 2. The State of Bihar issued notification under Sec. 4 of the Act. Ultimately a total of 1.19 acres of land of Khesra Nos. 1297, 1263 and 1217 under khata nos. 351, 161 and 260, respectively, belonging to the applicant and situate in village Bahadurpur, P.S. Gobindganj, No. 101, District East Champaran, was acquired by the State of Bihar under the Act for the purpose of Tilaway Drainage Scheme. The applicant was deprived of possession of the lands in question on 24.3.1981, the date of award of the learned Land Acquisition Officer. Aggrieved by the award, the applicant took steps under Sec. 18 of the Act leading to Reference Case No. 1 of 1982, which has been disposed of by the impugned judgment. The learned trial court framed the following issues for adjudication: (i) Whether the reference is barred under proviso (a) to sub-section (2) of Sec. 18 of the Act? (ii) What would be the proper and reasonable compensation for the acquisition? 3. The applicant led evidence in support of his case and are enumerated hereinbelow: (i) Exhibit-1 is a deed of absolute sale dated 9.2.1980, showing sale of an adjoining land. (ii) Exhibit-1/a is a deed of absolute sale dated 21.1.1980 showing sale of adjoining lands. (iii) Exhibit-2 is map of the village showing that the lands sought to be acquired and prepared by the Special Land Acquisition Officer No. 2, Gandak Yojana, Motihari. (iv) Exhibit-3 are applications by different persons including that of the applicant under Section-9 of the Act. (v) Exhibit-4 is the order-sheet of Land Ceiling Case No. 94 of 1973-74. (vi) A.W. 1 is the applicant himself. (vii) A.W. 2 is Khedu Mistry and has proved Exhibits-1 and 1/a. The respondent State of Bihar has not led evidence in support of its case and has entirely relied on the evidence of the applicant. (v) Exhibit-4 is the order-sheet of Land Ceiling Case No. 94 of 1973-74. (vi) A.W. 1 is the applicant himself. (vii) A.W. 2 is Khedu Mistry and has proved Exhibits-1 and 1/a. The respondent State of Bihar has not led evidence in support of its case and has entirely relied on the evidence of the applicant. 4 The first issue need not detain us because the learned Government Counsel has submitted that the reference was not barred by limitation. The issue is accordingly decided in favour of the applicant. 5. In so far as the second issue is concerned, learned counsel for the applicant rightly submits that the learned trial court has taken into account an irrelevant aspect of the matter in determining the compensation. He rightly submits that Sec. 23 of the Act sets out the factors to be considered in determining compensation, the first clause of which lays down to the effect that the market-value of the land at the date of the publication of the notification under sec. 4, sub-section (1). The notification under sec. 4(1) was issued on 8.12.1980. Exhibit-1 is the original deed of absolute sale executed by Indrajit Narain Singh (the- applicant), in favour of one Kapildeo Rout, whereby he alienated Khesra No. 1292, covering an area of 4 dhurs, appertaining to khata no. 938, at village Bahadurpur and is situate close by. The same was executed on 9.2.1980, and was registered on 10.3.1980, for a total consideration money of Rs. 800/-. Exhibit-1/a is another registered deed of absolute sale executed by the applicant himself in favour of Ram Ayodhya Sharma, whereby he alienated portions of plot nos. 1171 and 1217, both appertaining to khata no. 1040, covering 5 dhurs, for a total consideration money of Rs. 1,000/-. The same was executed on 21.1.1980, and was registered on 7.2.1980. It is manifest on a perusal of these two documents that the same are lands adjoining the acquired lands, and alienated for a consideration money of Rs. 200/- per dhur. The respondents have not placed on record any material at all, neither oral nor documentary, to rebut this part of the evidence. It is manifest on a perusal of these two documents that the same are lands adjoining the acquired lands, and alienated for a consideration money of Rs. 200/- per dhur. The respondents have not placed on record any material at all, neither oral nor documentary, to rebut this part of the evidence. The Supreme Court has observed in its judgment reported in 2004(2) P.LJ.R. (S.C.)1 (Panna Lal Ghosh & Others vs. Land Acquisition Collector & Others) to the effect that compensation payable on a piece of land acquired under the Act is determined by taking into account the market value of the land so acquired. While determining the market value of land, it must be with reference to a piece of land which is comparable to the land being acquired. Most reliable way to determine the market value is to rely on the instances of sale of portions of the same land as has been acquired or adjacent lands made shortly before or after the notification. There is no dispute in the present case that the lands adjacent to each other are comparable and adjoining. I have, therefore, no hesitation in concluding that Rs. 200/- per dhur was the market value of the acquired land on the date of the notification under sec. 4 of the Act, ignoring the time lag of nearly 10 months. 6. Learned Government Advocate submits that Exhibits-1 and 2 dealt with sale of small portions of land covering 4 dhurs and 5 dhurs respectively, whereas 1.19 acres of land has been acquired in the present proceedings. He submits that the Supreme Court has held in the case reported in 2007(4) P.LJ.R. (S.C.)120 (Raj Kumar & Others vs. Haryana State and Others) that the instances of sale of small extents could not be the basis of adjudging the compensation when the acquisition of a larger extent is involved. I regret my inability to accede to the submission. In my view, the proposition of law enunciated in Panna Lal Ghosh vs. Land Acquisition Collector & Others (supra) is applicable to the facts and circumstances of the present case. 7. Sec. 23 (1 -A) of the Act reads as follows: "23(1-A). I regret my inability to accede to the submission. In my view, the proposition of law enunciated in Panna Lal Ghosh vs. Land Acquisition Collector & Others (supra) is applicable to the facts and circumstances of the present case. 7. Sec. 23 (1 -A) of the Act reads as follows: "23(1-A). In addition to the market value of the land, as above provided, the Courts shall in every case award an amount calculated at the rate of twelve per centum per annum on such market value for the period commencing on and from the date of the publication of the notification under Sect. 4, sub-section (1), in respect of such land to the date of the award of the Collector or the date of taking possession of the land, whichever is earlier." It appears to me on a plain reading of this provision that the appellant is entitled to an amount equivalent to 12 per centum per annum on the market value of the land from the date of the notification under Sec. 4 of the Act (8.12.1980), to the date of the award of the Collector or the date of taking possession of the land, whichever is earlier. I, therefore, conclude that the applicant shall be entitled to an amount equivalent to 12 per centum per annum on the aforesaid amount of compensation from 8.12.1980 to 24.3.1981. 8. It has been held as follows in the judgment of this Court reported in 1989 P.LJ.R. 628 (Kameshwar Prasad Verma vs. The State of Bihar), paragraph-16: "In view of these discussions, this appeal is allowed in the light of the observation made below and it is ordered that the appellant will be entitled to get solatium at the rate of 30% in place of 15% as ordered by the learned Special Land Acquisition Judge on the market value of Rs. 14,463.80 paise of the amount as assessed. On behalf of the appellant it has been submitted that on the date of notification under Sec. 4(1) of the Act the State had come in possession of acquired land. In this view of the matter, the appellant has claimed interest from that very date. 14,463.80 paise of the amount as assessed. On behalf of the appellant it has been submitted that on the date of notification under Sec. 4(1) of the Act the State had come in possession of acquired land. In this view of the matter, the appellant has claimed interest from that very date. This fact has not been challenged on behalf of the respondent that the State of Bihar had come in possession of the acquired land with effect from the date on which the notification under Section 4(1) of the Act was made. Hence the appellant would also be entitled to interest at the rate of 9% on the entire amount of compensation including the solatium right from the date of publication of the Notification under Section 4(1) of the Act till the final payment of the, entire amount. The appellant has further prayed that in terms of Section 23(1-A) of the Act he is entitled to 12% per annum on the market value of the land as determined by the court for the period commencing on and from the date of publication of the notification under Sec. 4, sub-section (1) of the Act in respect of such land to the date of the award of the Collector or the date of taking possession of the land, whichever is earlier. In terms of this provisions as contained in subsection (1-A) of Sec. 23 of the Act the appellant would be entitled to this amount also in accordance with law." 9. Sec. 23(2) of the Act reads as follows: "23(2). In addition to the market- value of the land as above provided, the Court shall in every case award a sum of (thirty per centum) on such market value, in consideration of the compulsory nature of the acquisition." This has in the legal world come to be known as solatium and is payable to the land holder because of compulsory acquisition of the land in which he has no choice. The sovereign authority exercises its prerogative of eminent domain over the land in a situation where the owner has perfect title to the same. I, therefore, conclude that the applicant would be entitled to further amount of compensation to the extent of 30% of the amount of compensation. The sovereign authority exercises its prerogative of eminent domain over the land in a situation where the owner has perfect title to the same. I, therefore, conclude that the applicant would be entitled to further amount of compensation to the extent of 30% of the amount of compensation. I am supported by the judgment in the case of Kameshwar Prasad Verma vs. The State of Bihar (supra), the relevant portion of which is set out hereinabove. 10. Learned counsel for the applicant has relied on the 4th clause of Sec. 23 of the Act which reads as follows: "fourthly, the damage (if any) sus, tained by the person interested, at the time of the Collectors 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." 11. A.W. 1 has stated as follows in paragraph 2 of his deposition: 12. He has further stated in his crossexamination in paragraph 4 as follows: 13. I have also perused Exhibit-2 which is the map of the village prepared by the State Government. It is manifest on a perusal of the same that the lands had been acquired for the purpose of creation of a canal. Perusal of Exhibit-2 makes it clear that the canal passes through plot nos. 1217, 1263 and 1297. The applicant is thus left with lands on both sides of the canal after acquisition of his lands which now form part of bed of the canal. Position would have been different had the applicants entire land of appertaining to the three plots were acquired, in which case the fourth clause would not have been attracted. In view of part acquisition of the lands leaving the remnants on both sides of the canal causing severance has, to my mind, injuriously affected his lands. Furthermore, A.W. 1 in paragraph 4 of his cross-examination has deposed to the effect that he has about four and half bighas of land adjoining the acquired land. In view of the fourth clause of Sec. 23, the applicant is entitled to a reasonable sum of compensation. Furthermore, A.W. 1 in paragraph 4 of his cross-examination has deposed to the effect that he has about four and half bighas of land adjoining the acquired land. In view of the fourth clause of Sec. 23, the applicant is entitled to a reasonable sum of compensation. Taking light from the judgment of this Court reported in 1990 B.B.C.J. 652 (Mansoor Hassan & Others vs. The State of Bihar), the applicant shall also be entitled to 5% of the amount of compensation calculated in the manner as mentioned hereinbefore towards injury caused by reason of severance of the holdings. It may be stated that 10% of the sum awarded was allowed in the reported judgment in a situation where the applicants residential house was adversely affected. Home and hearth has a different value in law. Furthermore, the canal will also enrich the lands. I would, therefore, prefer to award compensation to the extent of 5% of the amount of compensation calculated hereinabove. 14. This takes me on to the question of payment of interest. Learned counsel for the applicant claims interest at the rate provided by Sections 28 and 34 of the Act after amendment. The learned Government Advocate contests this submission and submits that both the sections were amended with effect from 24.9.1984, whereas reference was already disposed of on 3.9.1984. In his submission, therefore, the unamended provision is applicable to the present case. The impugned judgment was passed on 3.9.1984 and Sections 28 and 34 were amended with effect from 24.9.1984. The Supreme Court has held in Panna Lal Ghosh vs. Land Acquisition Collector and Others (supra) that the interest at the higher rates as per the amended provision shall be payable to the applicant if the proceedings were pending between 30.4.1982 and 29.9.1984. In view of the position that the impugned judgment was handed down on 3.9.1984, the proceedings were obviously pending between the two dates. Furthermore, law is well settled that appeal is continuation of the suit. It has been held in Panna LalGhosh (supra) that pending proceedings will include appeals. Therefore, the proceedings were pending. The applicant shall be entitled to statutory interest as per the amended provisions of Sections 28 and 34 of the Act on the amount of compensation so determined. 15. Furthermore, law is well settled that appeal is continuation of the suit. It has been held in Panna LalGhosh (supra) that pending proceedings will include appeals. Therefore, the proceedings were pending. The applicant shall be entitled to statutory interest as per the amended provisions of Sections 28 and 34 of the Act on the amount of compensation so determined. 15. I must deal with the contention advanced by the learned Government Advocate that, in view of the pendency of the proceedings against the applicant under the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (hereinafter referred to as the Ceiling Act), the amount of compensation indicated in the first clause of Section 23 of the Act would be an irrelevant factor. It appears to me that the proceedings under the Ceiling Act were initiated against the applicant which was registered as Land Ceiling Case No. 94 of 1973-74, and was disposed of before the Land Reforms Deputy Collector, Motihari. The entire order-sheet is marked Exhibit-4. It appears on a perusal of the order dated 17.12.1979 that the learned Land Reforms Deputy Collector concluded that the applicant did not hold any land in excess of the ceiling area. Thereafter attempts were made by the State Government to reopen the proceedings in terms of Sec. 45-B of the Ceiling Act. By order dated 5.8.1987, the learned Collector of the district of East Champaran, Motihari, passed in Rev. Misc. No. 71/83-84, held that there is no case for reopening and the same was accordingly dropped. The entire order-sheet is reproduced hereinbelow for the facility of quick reference: Court of the Collector, East Champaran, Motihari Rev. Misc. 71/83-84 State vs. Indrajit Narain Singh 5.8.87The State of Bihar has filed this case for reopening the ceiling case of the opposite party, disposed of by the Deputy Collector, Motihari. The O.P. was held to hold 147 acres and odd lands. The Deputy Collector excluded an area of 56.53 acres of land as gifted in 1962. This exclusion to three granddaughters is justified as the gifts were duly made during the period of grace. Then two units were allowed to the two sons of the O.P. who were major when the grandfather died. Thus, there is no case for reopening. The case is dropped. (Dictated) Sd/- A.K. Singh, Collector, East Champaran, Motihari 16. This exclusion to three granddaughters is justified as the gifts were duly made during the period of grace. Then two units were allowed to the two sons of the O.P. who were major when the grandfather died. Thus, there is no case for reopening. The case is dropped. (Dictated) Sd/- A.K. Singh, Collector, East Champaran, Motihari 16. The learned Government Advocate has brought to my notice the following amendments to the provisions of the Act brought about by the Bihar Legislature and are reproduced hereinbelow: "2. Amendment of Sec. 26 of Act 1 of 1894.In Sec. 23 of Land Acquisition Act, 1894 (Act 1 of 1894), after sub-section (2) the following subsection shall be added, namely: (3) Notwithstanding anything contained in sub-secs. (1) and (2), where the land is the subject-matter of a proceeding under the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (Bihar Act XII of 1962), the amount in lieu of compensation shall be determined in accordance with the provisions of the said Act. (4) Where the land is subsequently released from the proceedings under the Bihar Land Reforms (Fixation of Ceiling Area & Acquisition of Surplus Land) Act, 1961 (Bihar Act XII of 1962): The compensation payable will be determined in accordance with sub-sections (1) and (2). 17. In view of the foregoing discussion, the provisions of the Land Ceiling Act and the Bihar amendment are inapplicable to the facts and circumstances of the present case. 18. In the result, the impugned judgment and decree are hereby set aside. The appeal is accordingly allowed with costs throughout.