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2011 DIGILAW 349 (PAT)

State of Bihar v. Ram Balak Chamar

2011-03-07

MIHIR KUMAR JHA

body2011
ORDER MIHIR KUMAR JHA, J.:–These two appeals arise out of the common judgment which have been heard together and have been accordingly disposed of by this common judgment. 2. Facts which are not in dispute and it would be sufficient for disposal of these two appeals lie in a very narrow compass. The State of Bihar through collector of district-Bhojpur had acquired 12.73 acres of land in the town of Arrah for construction of residential houses by Bihar State Housing Board. From the valuation report Exhibit-B/1, it is clear that the notification under Section-4 of the Land Acquisition Act (hereinafter referred to as the Act) that the aforementioned acquisition was made sometime in the year 1974, for which a notification in the Official Gazette vide notification no. 7051 dated 30.09.1974 was published in the district Gazette on 16.12.1974. The declaration under Section-6 was made on 08.10.1977 and that too was published in the district Gazette on 01.11.1976. The objections were invited under Section-9 and the persons interested in the land had while staking claim as landholders had adduced evidence with regard to quality and prevalent market rate whereafter a valuation report was submitted by way of a comparative valuation of the sale statement fixing Rs. 9278/- per acre and the same was also approved by the Land Acquisition Officer (Collector under the Act) and subsequently an award was made in the year 1981. 3. The respondent land holders of both these appeals had also accepted the amount under protest sometimes on 08.05.1991 and had accordingly sought reference under Section 18 of the Act along with other land holders of adjacent plot which gave rise to L.A Case NO. 18 of 1981, 19 of 1981 and 27 of 1981. The application seeking reference addressed to the Land Acquisition Officer is on record, which would go to show that the minimum expectation of the respondent land holders was Rs. 2000/- per katha and their such claim was based only the premises that the land in question was situated in a densely populated area and had the capacity of fetiling market price of Rs. 5000/- per katha. The aforesaid application seeking reference under Section 18 of the Act was filed sometime in the month of June-1981 for enhancement of compensation, wherein a categorical prayer was made for fixing the rate of "Rs. 5000/- per katha. The aforesaid application seeking reference under Section 18 of the Act was filed sometime in the month of June-1981 for enhancement of compensation, wherein a categorical prayer was made for fixing the rate of "Rs. 2000/-(minimum) per katha" and it was this reference application of the Respondent landholders which had become subject matter of adjudication before the Land Acquisition Judge. 4. The three cases under the Land Acquisition Act i.e. L.A Case NO. 18 of 1981, 19 of 1981 and 27 of 1981, being covered by a common notification under Section-4 of the Act were also heard together by the Court of Land Acquisition Judge, wherein, in all, nine witnesses were examined on behalf of respondent land holders out of which PW-1 to PW-8, being the land holders were examined on 17.07.1991 to 25.07.1991 and the last witness, the Pleader Commissioner was examined on 19.04.1995. It would be equally important to note here that, in all, seven documents were exhibited by the respondent land holders out of which Exhibit-1, Canal water rent rate receipts, Exhibit-2, Canal parcha and Exhibit-3, Judgment and Decree of L.A Case No. 14, 15 and 16 of 1985 were admitted in evidence in the month of July to August 1991. The report of the Pleader Commissioner with map, Exhibit-4 and the ordersheet of the commissioner, Exhibit-5 was taken on record on 19.04.1995, whereafter the appellant had adduced oral evidence of two witnesses both being officials of Bihar State Housing Board Department. 5. DW-1 in fact had also got two documents, the sale statement and the valuation report were exhibited and marked as Exhibit-A and Exhibit-B, whereafter on 23.05.1995, the last witness on behalf of the appellant was examined, the evidence of the parties were endorsed and the case was fixed for argument. It appears that on 13.06.1995, the land holders had sought to introduce three documents namely certified copy of judgment of L.A Case No. 4 of 1982, survey map and certified copy of sale deed Exhibit-3/A, Exhibit-6 and Exhibit-7 by the Court below on a plea that they too were public documents and could be taken into evidence at any point of time. Interestingly, on the same day, the Court having admitted the aforesaid three documents in evidence has also reserved the judgment and on 7th of July, 1995 the impugned judgment was delivered, whereby and whereunder the amount awarded by the Collector of Rs. 9278/- per acre was enhanced almost ten times by fixing Rs. 1,00,000/-(one lakh) per acre i.e Rs. 2500/- per katha. The solitary basis on which the Court below was influenced in making such an enhancement was the document, the judgment and award of L.A Case No. 4 of 1982(Exhibit-3/A) which as noted above was admitted in evidence only on 13.06.1995. The finding of the Court below, in this regard is that as an adjacent piece of land was acquired for the housing purposes of Bihar State Housing Board itself, the respondent-land holders were definitely entitled to the same amount which was awarded in the L.A Case No. 4 of 1982. 6. Learned counsel appearing on behalf of the appellant State of Bihar has contended, that such a mechanical approach of the Court below in awarding even more than what was actually prayed by the respondent-land holders in their application seeking reference is wholly unsustainable in the eye of law, inasmuch as, whenever a judgment or award of L.A Case is to be made basis, the Court has to be satisfied on the basis of evidence on record that not only they are covered by the notification under Section 4 of the Act or would fall within the location of the land of having its utility of almost same nature. In this context, he has highlighted that when there was no case made out by the respondents-landlord either in their application or even in the evidence adduced as with regard to the similarity in the land covered by the judgment and award dated 22.06.1992, in L.A Case No. 4 of 1982, the approach of the Court below in mechanically applying itself by comparing the location of the land with the help of survey map was not only out of context, but also was more or less by way of self appraisal without giving an opportunity of explaining to the concerned parties. In this context, he has placed reliance on the judgment of the Apex Court in the case of Bhag Singh and others Vs. In this context, he has placed reliance on the judgment of the Apex Court in the case of Bhag Singh and others Vs. Union Territory of Chandigarh, reported in AIR 1993 SC 222 , in the case of Pal Singh and others Vs. Union Territory of Chandigarh, reported in AIR 1993 SC 225 , in the case of Ranjit Singh and others Vs. Union Territory of Chandigarh, reported in AIR 1993 SC 227 . 7. Counsel for the respondents-landlord, on the other hand has submitted that the scheme of the Act is quite specific and clear and at least after 1984, when a massive amendment was brought in the Act introducing Section-28(A) for making an earlier award, the basis for enhancement of the disposed of cases by allowing the same higher amount, no fault can be found in the impugned judgment and award, inasmuch as, the Court below has only followed the market price decided in the judgment dated 22.06.1992 in Land Acquisition Case No. 4 of 1982 (Exhibit-3/A). He has further submitted that the land acquisition proceedings is quite old and therefore, this Court should not interfere with the awarded amount as admittedly the respondent landlord had lost their valuable land. In this context, he has also referred to the oral evidence of PW-1 to PW-8 to support his contention that several educational institutions were found to be in existence in the year 1994 in and around the acquired land of Respondent landholders. He has also placed reliance on the report of the Advocate Commissioner appointed by the Court has to decide, for advancing his submission that even if there is no threadbare at the discussion on the issue of land being of the same quality as that of L.A Case No. 4 of 1981 in the impugned judgment this Court exercising its appellate jurisdiction can take into account that plot no. 192 to 280, 281 and 283 were the subject matter of L.A Case No. 4 of 1982, whereas plot nos. 315 to 334 were the subject matter of the land acquisition case of the respondent-land holders and as such this Court could uphold that the valuation of Rs. 2500/- per katha i.e. Rs. 1,00,000/-(one lakh) per acre when according to him is neither exhorbitant nor arbitrary. It has also been suggested that, since Exhibit-3/A the judgment of L.A. Case no. 315 to 334 were the subject matter of the land acquisition case of the respondent-land holders and as such this Court could uphold that the valuation of Rs. 2500/- per katha i.e. Rs. 1,00,000/-(one lakh) per acre when according to him is neither exhorbitant nor arbitrary. It has also been suggested that, since Exhibit-3/A the judgment of L.A. Case no. 4 of 1982 was taken on record on the last date of the hearing without any objection on the part of the State, this Court should not now disturb the findings and the conclusion arrived by the Court below in fixing the amount of compensation of the acquired land of the respondent-land holders based on the said judgment of L.A. Case no. 4 of 1982. 8. In the considered opinion of this Court, the whole approach of the Court below in deciding the three reference cases by the common impugned judgment under appeal is not only mechanical but infact wholly perfunctory. The Court below first of all even if it was satisfied that the judgment and award of L.A Case No. 4 of 1982 had covered the case of the respondent-land holders, it had to take such document and evidence into consideration on the settled principles of enhancing the compensation amount on the basis of an earlier award and judgment of the same Court, only if there has been an evidence adduced by the respondents-landlord to this effect. As noted above, not a word was said by the Respondent landholders either in their oral or documentary evidence about the proximity or the quality of their land being the same as that of the land of L.A Case No. 4 of 1982. 9. This Court has gone therefore also gone into the objection petition filed by the Respondent landholders under Section 9 of the Act and the application filed by the Respondent landholders under Section 18 seeking reference and also into the connected records of the Court below but there is nothing to suggest that prior to 13.06.1995, the Respondent landholders had conceived even an idea of the judgment of L.A Case No. 4 of 1982 being relevant for disposal of their case. This aspect of the matter becomes also clear from the evidence to PW-1 to PW-8, where not a word has been said about the judgment in question Exhibit-3/A dated 22.06.1992 and in fact it could also not have been said by them, inasmuch as, all the PWs-1 to 8 were examined during the month of July to August-1991 itself much before the delivery of award and judgment in L.A. case no. 4 of 1982. As a matter of fact, even when the Pleader Commissioner was appointed by the Court itself he too was not given the task of finding about the proximity of land of L.A Case No. 4 of 1982 and his only duty was to find the condition of the land and the buildings and the institutions in or around the acquired land of the respondents. Normally, this Court exercising its appellate power could still have gone into the question of applicability of the judgment and award of L.A Case No. 4 of 1982 if the counsel for the respondents-landholder had allowed such documents to remain part of the lower Court record. 10. In this context it is also found from the records of the Court below that an application by the counsel for Respondent landholders was filed on 20.12.1996 for returning the documents as contained in Exhibit-3, Exhibit-3/A, Exhibit-6, Exhibit-7 and surprisingly the Court also had allowed the prayer for its being returned without retaining a copy of such document. The endorsement made by the counsel for the respondent-land holders in the Court below dated 04.01.1997, however, had contained an undertaking to the effect such document being taken away by him would be produced as and when they would be required in connection of this case. The endorsement made by the counsel for the respondent-land holders in the Court below dated 04.01.1997, however, had contained an undertaking to the effect such document being taken away by him would be produced as and when they would be required in connection of this case. It was in this background that in the course of hearing on the last day when this Court wanted to effectively dispose of this appeal by looking into the aforesaid documentary evidence and the same was not found on record on account of its being taken in the Court below by learned counsel for the respondent land holder, that an order was passed directing the counsel for the respondent-land holders in this Court to produce those documents including Exhibit-3, Exhibit-3/A, Exhibit-6 and Exhibit-7 including the judgment and award of L.A Case No. 4 of 1982 and the survey map so that the matter could have been looked into and decided by this Court itself. Accordingly, this Court had passed the following order on 14.02.2011, which reads as follows:- “Heard in part. From the perusal of the records it appears that the impugned judgment and award is based on two awards of earlier Land Acquisition Case NO. 4 of 1982 and Land Acquisition Case NO.114 of 1985 which were marked as Exts. 3 and 3/A. The said documents on the request of the counsel for the respondent-applicant were directed to be returned by an order dated 30.12.1996 and were received by the counsel on 04.01.1997 without even making its photo or true copy available. Today when this Court in order to examine the issue in hand has asked the counsel for the respondent to produce such document he has shown total unawareness. This Court, however, would give one indulgence to the counsel for the respondent to produce the copy of Exts. 3 and 3/A, 6 and 7 which were received in the Court below with an undertaking to produce them as and when required in this case. List this case after two weeks at the top of the list." 11. This Court, however, would give one indulgence to the counsel for the respondent to produce the copy of Exts. 3 and 3/A, 6 and 7 which were received in the Court below with an undertaking to produce them as and when required in this case. List this case after two weeks at the top of the list." 11. Today when the case was taken up, counsel for the respondent-land holders had shown their complete inability to produce the documents in question and in that view of the matter, this Court is not aware as to whether the judgment and award of L.A Case No. 4 of 1982 was also covered by the same notification under Section-4 of the Act as in the case of respondent land holders and further as to whether the proximity and the situation of the land of the respondent-land holders is the same as to that of respondent land holder of L.A Case No. 4 of 1982. This much however is evident that the Land acquisition cases of the respondent-land holders being 18, 19 and 27 of 1991 were instituted earlier to L.A. case no. 4 of 1982 and when this aspect of the matter is examined in the light of the oral evidence of the officials of the Bihar State Housing Board that the land were acquired in two phases, one for 27 acres and the other for 12 acres in all it becomes doubtful as to whether the judgment and award of L.A Case No. 4 of 1982 would really cover the cases of the respondent land holders. Thus in the absence of the most crucial document on record i.e. Exhibit-3/A on the basis of which alone the Court below had enhanced the amount of compensation to more than ten times coupled with the fact that the same could not be produced by the Respondent landholders despite an undertaking of their cause and the way it was taken in the evidence it creates a big problem for the Appellate Court to effectively adjudicate the matter. True it is that the judgment and award of similarly acquired land has always been a safe yard-stick to make evaluation of market value but then there has always been a line of caution line drawn as was held by the Apex Court in the case of Bhag Singh (supra). True it is that the judgment and award of similarly acquired land has always been a safe yard-stick to make evaluation of market value but then there has always been a line of caution line drawn as was held by the Apex Court in the case of Bhag Singh (supra). “No doubt, a judgment of a Court in a land acquisition case determining the market value of a land in the vicinity of the acquired land, even though not inter parties, could be admitted in evidence either as an instance or one from which the market value of the acquired land could be deduced or inferred. There will be no difficulty in accepting such judgment as one furnishing the basis for determining the market value of the acquired land under consideration, if the opposite parties do not genuinely dispute the position that the judgment relied upon, could be acted as basis for determination of the market value of the acquired land ………………but such claim for enhanced compensation is contested by learned counsel appearing for the Land Acquisition Collector, by urging that the judgment of the High Court on which reliance is placed on behalf of petitioners cannot form the basis for determining the market value of the acquired lands of the petitioners, inasmuch as, there is absolutely no evidence adduced by them to show that in the attendant facts and circumstances of the cases, it would be just and reasonable to grant the compensation for the acquired lands of the petitioners at a higher rate in which compensation has been granted to the claimant concerned in a stray case where subsequent judgment has been rendered by the High Court. Judgments of the High Court given in a large number of cases determining the market value of lands in a huge tract at uniform rates cannot be revised, in our view, solely on the basis of claim made on behalf of petitioners that a learned Judge of the same High Court in a subsequent stray case has awarded a higher compensation for a piece of acquired land said to be in the same tract of the acquired lands. If recourse is taken to such procedure, the market value already determined in a large number of cases at uniform rates may go on requiring either enhancement or reduction, whenever subsequent judgment of the Couret in a stray case brings about a variation in the market value of land concerned. To say the least, such procedure if is resorted to by Courts in determination of market value of lands lying in a large tracts based on previous awards or judgments can never reach finality. Besides, recourse to such procedure could give ample scope for making or arbitrary and fanciful awards in land acquisition cases. 12. The same view had been again taken in the case of Pal Singh (supra), where the Apex Court had held as follows:- “No doubt, a judgment of a court in a land acquisition case determining the market value of land in the vicinity of the acquired lands, even though not inter partes, could be admitted in evidence either as an instance or one from which the market value of the acquired land could be deduced or inferred as has been held by the Calcutta High Court in H.K. Mallick’s case (supra) based on the authority of the Judicial Committee of the Privy Council in Secretary of State Vs. Indian General Steam Navigation and Railway Co.(1909) ILR 36 Cal 967, where the Judicial Committee did refuse to interfere with High Court judgment in a land acquisition case based on previous awards, holding that no question of principle was involved in it. But what cannot be overlooked is that for a judgment relating to value of land to be admitted in evidence either as an instance or as one from which the market value of the acquired land could be inferred or deduced, must have been a previous judgment of Court and as an instance, it must have been proved by the person relying upon such judgment by adducing evidence aliundue that due regard being given to all attendant facts and circumstances, it could furnish the basis for determining the market value of the acquired land. In the cases on hand, the petitioners who are claimants claiming enhanced compensation for their acquired land have nhot produced the judgment of the High Court on which they propose to rely for finding the market value of their acquired lands as evidence in their cases, in that they could not have done so for the reason that it was not a judgment then available to them as a previous judgment relating to market value of land in the vicinity. Much less is there any evidence alinude adduced by them in the cases on hand to show that due regard being given to all attendant facts and circumstances, it could form the basis for determining the market value of their acquired lands. This aspect of the matter was again gone into by the Apex Court in the case of Ranjit Singh (supra), where the Apex Court had deprecated the routine and mechanical practice of the Court applying the judgment and award for enhancement of the amount of compensation, which is quoted herein below:- “We canot accede to the submission of the learned counsel for the petitioners in that the petitioners have adduced no evidence to show that their acquired lands for which they are seeking enhanced market value were similar to the lands, the market value of which has been determined by the High Court in its judgment in RFA No. 462 of 1977 at Rs. 35,000/- an acre. If we are now to act on the judgment of the High Court in RFA NO. 462 of 1977 for enhancing the market value of the lands of the petitioners before us for the reason that it is produced before us with the assertion that the lands for which market value is determined by the High Court in the latter judgment are similar to the acquired lands of the petitioners, we have to necessarily proceed to decide the matter on the basis of our own surmises or conjectures because of want of evidence in that regard. Adoption of such course by us is, we feel, unwarranted for it will give scope for the making of arbitrary and fanciful awards in land acquisition cases. Hence, these Special Leave Petitions are liable to be dismissed. 13. Adoption of such course by us is, we feel, unwarranted for it will give scope for the making of arbitrary and fanciful awards in land acquisition cases. Hence, these Special Leave Petitions are liable to be dismissed. 13. Thus it becomes more than clear that in a reference case when the Land Acquisition Judge goes to rely on an earlier judgment, he has to cautiously apply himself to the test of Section-23 of the Act, wherein the basis for finding the market value of the acquired land is the date of notification under Section-4 of the Act as also the vicinity of the land and its being similar in nature of land for which compensation is sought to be enhanced. Unfortunately there is nothing on record which could be now appreciated by this Court in the exercise of its appellate power, inasmuch as, Exhibit-3/A and Exhibit-6 being the judgment of Land Acquisition Case No. 4 of 1982 and the survey map has also been taken from the record by the counsel for the respondent-appellant and could not be produced by them despite a direction given by this Court. 14. This Court however, would also not approve such practice of the Court below in allowing the documents to be withdrawn without retaining its copy, inasmuch as, there is a provision in the Code of Civil Procedure which allows a party to withdraw its documents but only after giving a copy thereof. In the absence of such documents on record appellate Court virtually becomes functus officio in deciding the real issue, inasmuch as, all the question of the fact and law including re-appreciation of oral and documentary evidence can be also made by the Appellate Court. It is thus, expected that in future the Court below shall always be cautious in returning the original/certified copies only after retaining a true copy thereof. 15. As noted above, the issue in hand in the absence of document cannot be decided and therefore there would be little option for this Court but set aside the impugned judgment and the award and remit the matter back to the concerned Court below which would now proceed from the stage of admitting the document as contained in Annexure-3/A, 4, 5 and 6 on record only after affording an opportunity to the appellant State Bihar. If there be need to lead further evidence for making the judgment of L.A. Case No. 4 of 1982 applicable, the Court below will also allow the parties to lead their respective evidence, both oral and documentary, but such exercise must be completed within a period of six months from the date of receipt/production of a copy of this judgment. 16. It is made clear that if the enhanced amount of compensation under this appeal has already been withdrawn, the same shall not be directed to be refunded by the respondents-landlord but if the same is scaled down or reduced the respondents-landlord will be under an obligation to refund the same within a period of three months from the date of delivery of the judgment and award to be pronounced by the Court below on remand. 17. Before parting with it is made clear that nothing said in this judgment in any way would affect the proceedings of L.A Case No. 18 of 1991, inasmuch as, first appeal filed by the State being F.A. No. 11 of 1996 was dismissed on account of non-compliance of peremptory order with regard to not depositing the Court fee in the prescribed manner. Therefore, even if the judgment and award is valid in the case of respondent-land holders herein that will be in no manner prejudice the land holders of L.A. Case No. 18 of 1991 as against which F.A No. 11 of 1996 has stood dismissed on 02.01.1997. 18. With the aforementioned observations and directions these two appeals are allowed.