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Madhya Pradesh High Court · body

2009 DIGILAW 1193 (MP)

Rajesh Kumar v. State of M. P.

2009-10-13

ARUN MISHRA, S.A.NAQVI

body2009
Judgment Mishra, J. ( 1. ) Writ petition has been filed as against interlocutory order dated 29/1/2007 passed by the First Addl. Judge to the Court of Illrd Addl. District and Sessions Judge (Fast Track Court), Khandwa in Reference Case No. 67/06 thereby rejecting the application for inclusion of the claim with respect to compensation of trees in the pending reference under section 18 of the Land Acquisition Act. ( 2. ) It is not in dispute that the petitioner had sought a reference for enhancement of compensation aggrieved of award passed by the Land Acquisition Officer. Reference is pending before the Court-below for determination of adequate compensation. Prayer was made by moving application (P/4) under Order 6, Rule 17, Civil Procedure Code for addition paras 2 and 3 in the claim petition that 19800 Neelgiri trees were planted under the Government Scheme of which Land Acquisition Officer has not made any valuation, for which the petitioner was entitled to claim compensation. In addition compensation was also claimed for water tank. Application has been rejected by the Court-below. Aggrieved thereby the instant writ petition has been preferred. ( 3. ) Shri Vivek Rusia, learned counsel appearing on behalf of the petitioner has submitted that even if prayer was not made before Land Acquisition Officer for claiming the valuation of trees such a prayer could have been made before the Reference Court under section 18 as the reference is for determination of amount of compensation payable to the petitioner. The land as defined under section 3 (a) includes "benefits arising out of land and trees attached to the earth." Thus, the Reference Court was bound to determine the question raised. The rejection of application is impermissible. ( 4. ) Shri Rajesh Tiwari, GA appearing on behalf of the respondents has supported the order. He has submitted that in fact there were no such Nilgiri trees overplanted or existed, had they been in existence on the spot the compensation would have been claimed before the Land Acquisition Officer. Belatedly, an application was filed to claim compensation by making exaggerated claim on inexistent factual ground, other water structures were also not in existence. Consequently, no case for interference the writ jurisdiction was made out. ( 5. ) After hearing learned counsel for the parties, in our opinion, the reference application ought to have been permitted to be amended for various reasons. Consequently, no case for interference the writ jurisdiction was made out. ( 5. ) After hearing learned counsel for the parties, in our opinion, the reference application ought to have been permitted to be amended for various reasons. We are not going to examine the factual question whether the trees or the water tank structure were in fact in existence, this is function of Court, belated moving of application may have the bearing on aforesaid aspect. The question being question of fact has to be gone into by the Court-below based on the various documents of taking possession and other evidence to be adduced by the parties. The section 25 of the Land Acquisition Act has been amended. Section 25 is quoted below. "25. Amount of compensation awarded by Court not to be lower than the amount awarded by the Collector-The amount of compensation awarded by Court shall not be less than the amount awarded by the Collector under section 11." A Full Bench of High Court of CC AIR 1994 Karnataka 112 has considered the amended section 25 and has held that section 25 as it now stands totally liberates the claimant from all restraints that held him in check earlier from making a claim before Court for the first time even where he had not made any claim before the Collector. He can claim higher compensation after seeking reference before the Reference Court without furnishing any reason or affording any explanation for making a lower claim before the Collector (LAO). ( 6. ) The apex Court in Hans Raj Sharma (dead) by LRs v. Collector, Land Acquisition Tehsil and District Doda, (2005) 1 SCC 553 has considered the expression land as defined in section 3 (a) of the Land Acquisition Act and has held that once the compensation for the land acquired has been determined same has to be inclusive of the benefit, arising out of the land and things attached to the earth. It was not necessary to refer the issue of higher valuation of trees. The apex Court has laid down thus: "13. Turning to the other question as to the valuation of trees, it appears that there has been an omission on the part of the Reference Court in rejecting the claim on the ground that there was no specific reference made. The apex Court has laid down thus: "13. Turning to the other question as to the valuation of trees, it appears that there has been an omission on the part of the Reference Court in rejecting the claim on the ground that there was no specific reference made. It must be remembered that the reference made under section 18 was for determination of the amount of compensation payable to the appellant for the land acquired. The expression "land" as defined in section 3 (a) of the Act is inclusive of benefits to arise out of the land and things attached to the earth or permanently fastened to anything attached to the earth. As a matter of fact, the Land Acquisition Officer had worked out the compensation for 261 trees in Khasra No. 804 determined as Rs. 17,315 and the cost of 96 trees in Khasra No. 805 determined as Rs. 6207/-. 14. Issue 2 raised by the Reference Court was "whether the value of trees worth Rs. 300 per tree, has not been included in the award". While answering this issue, the Reference Court has taken the view that the Reference Court has no jurisdiction to determine the controversy as it has not been referred by the Collector. This, in our view, is erroneous. The Reference Court ought to have adjudicated the claim of the appellant for higher compensation in respect of trees. On account of the unduly restrictive view taken of its own jurisdiction, the Reference Court fell into error. The Single Judge and the Division Bench also fell into the same error in totally rejecting this claim as beyond jurisdiction." ( 7. ) In view of the aforesaid decision of Hans Raj Sharma v. Collector, Land Acquisition (supra) and amended provision of section 25 of the Land Acquisition Act, we allow the application seeking amendment in the reference application. However, we make it clear that the mere allowing the application would not clothe claimants to claim higher compensation, they have to prove existence of facts on the basis of which they are claiming higher compensation. ( 8. ) Resultantly, writ petition is allowed. Impugned order is set aside. Amendment application is directed to be allowed. No costs.