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2008 DIGILAW 270 (HP)

Land Acquisition Collector v. Suresh Kumari

2008-05-30

DEV DARSHAN SUD

body2008
JUDGMENT Dev Darshan Sud, J. 1. The State has challenged the award made by the learned Additional District Judge, Mandi in Reference Case No. 1 of 1993. The first part of the challenge is that application under Section 18 of the Land Acquisition Act (hereafter referred to as the Act) was entertained directly by the District Judge which was not in accordance with law and that it should have been made through the Land Acquisition Collector. The second ground of challenge is that the reference is barred by limitation. The precise ground taken therein is that the application has been filed by the claimants before the Additional District Judge on 26.3.1993, i.e. after a period of 1/1 1/2 years of the making of the award. 2. Learned Counsel appearing for the State has placed reliance on judgments of the Hon'ble Supreme Court in Parsottambhai Maganbhai Patel and Ors. v. State of Gujarat Through Deputy Collector, Modasa and Anr. AIR 2005 SC 3464 and Mahadeo Bajirao Patil v. State of Maharashtra and Ors. (2005) 7 SCC 440 . According to the law laid down by the Supreme Court, application under Section 18 of the Act has to be made within six months from the date when the claimant derived knowledge of the declaration of the award either actual or constructive. (The case of an award made in the presence of parties is different). To similar effect is the judgment in State of Karnataka v. Laxuman AIR 2006 SC 24 . 3. In Parsottambhai Maganbhai Patel's case (supra), it was held: (7) This Court, therefore, held that the limitation under the latter part of Section 18 (2) (b) of the Act has to be computed having regard to the date on which the claimants got knowledge of the declaration of the award either actual or constructive. This principle, however, will apply only to cases where the applicant was not present or represented when the award was made, or where no notice under Section 12 (2) was served upon him. It will also apply to a case where the date for the pronouncement of the award is communicated to the parties and it is accordingly pronounced on the date previously announced by the Court, even if, the parties are not actually present on the date of its pronouncement. It will also apply to a case where the date for the pronouncement of the award is communicated to the parties and it is accordingly pronounced on the date previously announced by the Court, even if, the parties are not actually present on the date of its pronouncement. Coming to the facts of the instant case the High Court has not ejected the plea of the appellants that they came to know of the award only when compensation was being paid to them in July, 1988. They had admittedly no notice under Section 12 (2) of the Act. They had therefore filed the application under Section 18 of the Act on September 22, 1988 well within the period of limitation. The Reference Court recorded a finding in favour of the appellants but the High Court has reversed that finding without applying the principle laid down in Raja Harish Chandra (supra). 4. The submissions made on behalf of the State cannot be accepted as there are neither any pleadings nor evidence on record to show the factum of acquisition of knowledge of the making of the award by the claimants or service of notice under Section 12 of the Act or communication of the date of announcement of the award. It is not sufficient to say that cognizance of the application is barred by Section 18 of the Act without pleading and proving the case before the Court below. The factual matrix has to be pleaded and proved. Such a plea not having been raised, there being no evidence on record, the submission made by the learned Additional Advocate General deserves to be rejected. 5. On the first ground urged that the petition has been made directly to the learned Additional District Judge, there is no substance in the submissions made, as the record shows that the award had been forwarded to the District Judge by the Collector under Section 19 of the Act accompanied by all the documents etc. There is thus no substance in the plea taken by the appellant that the award was filed directly in the Court of Additional District Judge, as the reference petition itself shows that it was assigned to the Court of Additional District Judge by the District Judge, Mandi. In view of this, both the submissions made by the appellant are rejected. 6. In view of this, both the submissions made by the appellant are rejected. 6. The learned Additional Advocate General then urged that the reference Court was not correct in placing reliance on the evidence of claimants in awarding compensation. It is submitted that Exs. DA and DB which were produced in evidence by the State have been wrongly excluded from evidence. This submission cannot be accepted. True that the learned District Judge should not have excluded these two sale deeds from the purview of evidence only on the ground that the vendor and vendee were not produced. However, even when these exhibits are considered, there is no evidence on record to show the proximity of this land to the acquired land, the nature and quality of the land sold. Surely, it is not merely placing a sale deed on record which constitutes proof of the other factors required to be established by evidence namely proximity to facilities, proximity to the acquired land, the nature of quality of land and the area so acquired, although the area can be determined from the deed itself. In these circumstances, the sale deeds cannot be accepted as the measure of true and just compensation. 7. The next submission made by the learned Additional Advocate General is that deduction of 30% should have been made as developmental charges and that no deduction has been made while determining just compensation. It is undisputed before me that the land which has been acquired is for the purposes of water supply. It is also admitted that the land is for all intents within the municipal limits of Mandi town. The land need not be developed in the manner in which it is now sought to be urged. Reliance is also placed on another award Ex. RW-1/A7 but that cannot be the measure for determining compensation for the reason that the award may have been carried in a reference etc. and only constitutes an offer by the State. The question of determination of just compensation will be considered in conjunction with the cross-objections filed by the claimants who submit that the learned Reference Court has not considered Exts. P-1, P-2, PW-6/A, PW-6/B and PW-9/A. It is undisputed that proceedings under Section 4 were initiated on 22.3.1989. Ex. P-1, is the sale deed dated 15.5.1992. Ex. P-2 is sale deed dated 21.4.1990. P-1, P-2, PW-6/A, PW-6/B and PW-9/A. It is undisputed that proceedings under Section 4 were initiated on 22.3.1989. Ex. P-1, is the sale deed dated 15.5.1992. Ex. P-2 is sale deed dated 21.4.1990. Ex.PW-6/A is dated 8.1.1990 and PW-6/B is also of the same date. While considering these documents, the learned trial Court has come to the conclusion that these transaction are bona fide and though subsequent to the notification under Section 4, but because of their proximity in time, can be taken into consideration in evidence, as there is nothing in evidence to show that these transactions represent an inflated value of the land because of the notification subject-matter of these proceedings. Exs. DA and DB have been rightly excluded, although on grounds which are not tenable, but as held by me, because they do not establish anything beyond the fact that the transaction took place. So far as the acquired land is concerned, it is situated in a developed area and adjoining the Municipal Committee boundaries of Mandi. When considered in its entirety, the value of the land would work out to more than Rs. 50,000 per bigha as awarded by the learned Reference Court. However, if the developmental charges are to be deducted, it has to be reduced between 30 to 40% under the normal rule. The increase sought for by the claimants would itself be upset by the amount so claimed in enhancement. The learned District Judge was not correct in awarding an amount of Rs. 50,000 per bigha only, but on the basis of sale deeds produced and on approximation, the value of the land would work out to about Rs. 85,000 and in case deduction of 40% is made for developmental charges, it would come to about Rs. 50,000. In the circumstances, considering the totality of the evidence on record, I am of the view that no developmental charges are required to be deducted which would amply compensate the cross-objectors in the increase demanded by them. The appeal and the cross-objections are therefore, disposed of. There shall be no order as to costs.