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2012 DIGILAW 1760 (ALL)

U. P. AVAS EVAM VIKAS PARISHAD v. NAGINA MISRA

2012-08-07

ARVIND KUMAR TRIPATHI, PRAKASH KRISHNA

body2012
JUDGMENT Hon’ble Prakash Krishna, J.—The above appeal has been filed under Section 54 of the Land Acquisition Act, 1984 (hereinafter referred to as ‘the Act’) against the judgment and decree dated 31st May, 1991 passed by the District Judge, Ballia in Land Acquisition Reference No. 132 of 1988. 2. The only controversy raised in the present appeal is with regard to determination of compensation amount of the land acquired by notification dated 8th March, 1980 under Section 28 of the U.P. Avas Evam Vikas Parishad Adhiniyam and notification dated 27th November, 1982 issued under Section 32 of the U.P. Avas Evam Vikas Parishad Adhiniyam, which corresponds to Sections 4 and 6 of the Land Acquisition Act. Various plots total area 33.01 Acres, detailed in the award dated 28th August, 1987 of the Land Acquisition Officer (hereinafter referred to as ‘the Officer’), were acquired for Harpur Bhumi Vikas Evem Grih Sthan Yojna, Ballia. The total area of the land acquired from the respondents herein is 2.40 Acres. The officer awarded compensation amount at the rate of Rs. 93,750/- per acre. On reference application, a reference was made to the Civil Court being L.A.R. No. 132 of 1988. The reference Court proceeded to hold that there is no valid reason to discard the sale-deed executed by Shri Lallan Prasad dated 17th December, 1979. It is a perfect exemplar. The value of the land of Shri Lallan Prasad correctly reflects market value of acquired land at the relevant time. The sale-deed was executed two months and 20 days before notification under Section 28 of the U.P. Avas Evam Vikas Parishad Adhiniyam and it is in respect of a very small area. However, it proceeded to enhance the compensation at the rate of Rs. 15,000/- per katha. 3. Contention of learned counsel for the appellant is that the enhancement made by the reference Court to Rs. 15,000/- per katha is not justified under law. The only question which falls for determination in this appeal is whether the reference Court was justified in fixing compensation amount at the rate of Rs. 15,000/- per katha or not? 4. Heard the learned counsel for the parties and perused the record. 5. 15,000/- per katha is not justified under law. The only question which falls for determination in this appeal is whether the reference Court was justified in fixing compensation amount at the rate of Rs. 15,000/- per katha or not? 4. Heard the learned counsel for the parties and perused the record. 5. The Apex Court in Chimanlal Hargovinddas v. Special Land Acquisition Officer, Poona and another, AIR 1988 SC 1652 , has laid down that the following factors which must be taken by the reference Court into consideration : “(1) A reference under Section 18 of the Land Acquisition Act is not an appeal against the award and the Court cannot take into account the material relied upon by the Land Acquisition officer in his Award unless the same material is produced and proved before the Court. (2) So also the Award of the Land Acquisition officer is not to be treated as a judgment of the trial Court open or exposed to challenge before the Court hearing the Reference. It is merely an offer made by the Land Acquisition officer and the material utilised by him for making his valuation cannot be utilised by the Court unless produced and proved before it. It is not the function of the Court to suit in appeal against the Award, approve or disapprove its reasoning, or correct its error or affirm, modify or reverse the conclusion reached by the Land Acquisition officer, as if it were an appellate Court. (3) The Court has to treat the reference as an original proceeding before it and determine the market value afresh on the basis of the material produced before it. (4) The claimant is in the position of a plaintiff who has to show that the price offered for his land in the award is inadequate on the basis of the materials produced in the Court. Of course the materials placed and proved by the other side can also be taken into account for this purpose.” 6. The same principle has been reiterated subsequently in Special Land Acquisition Officer and another etc. v. Sidappa Omanna Tumari and others etc., AIR 1995 SC 840 . 7. Viewed as above, it is firmly established that proceeding before reference Court is not in the nature of appeal but in the nature of a suit. The same principle has been reiterated subsequently in Special Land Acquisition Officer and another etc. v. Sidappa Omanna Tumari and others etc., AIR 1995 SC 840 . 7. Viewed as above, it is firmly established that proceeding before reference Court is not in the nature of appeal but in the nature of a suit. The position of a claimant in a reference before the Court, is considered to be that of the plaintiff in a suit requiring him to discharge the initial burden of proving that the amount of compensation determined in the award under Section 11 is inadequate. It follows that if the claimant fails to discharge the said burden, the award of the Collector is final and conclusive evidence under Section 12 of the Land Acquisition Act. The rate of compensation awarded by the Special Land Acquisition Officer becomes final. 8. The burden as laid down in the case of Special Land Acquisition Officer and another etc. v. Sidappa Omanna Tumari and others etc. (supra), will shift upon the respondent only when claimant succeeds in proving that the amount determined under award of Collector was inadequate. The reference Court held that the sale-deed dated 17th December, 1979 executed by Lallan Prasad, as also relied upon by the officer, represents the market value of the land so acquired. The sale-deed is in respect of a part of land, which was also so acquired. In other words, the compensation was correctly determined by the officer. 9. Thereafter, the reference Court has proceeded to determine compensation amount at the rate of Rs. 15,000/- per katha as it was of the view that the claimants have pleaded in para-15 of the reference that some land included in the exemplar sale-deed of Lallan Prasad was acquired by Telephone Department and compensation amount at the rate of Rs. 15,000/- per katha has been awarded therein. It proceeds on the footing that the said averments have not been denied by the appellant herein. Reverting to the pleadings of the parties, we find that the observation of the reference Court referred to above, is not correct. A vague and general allegation has been made by the claimants in para-15 of the reference application without giving any detail or any particular of acquisition, if any, made by the Telephone Department. Reverting to the pleadings of the parties, we find that the observation of the reference Court referred to above, is not correct. A vague and general allegation has been made by the claimants in para-15 of the reference application without giving any detail or any particular of acquisition, if any, made by the Telephone Department. The particulars of the area so acquired by the Telephone Department, date of acquisition, the reference of the proceedings determining the compensation amount etc. have not been mentioned. For the sake of convenience, para-15 of the reference application is reproduced below: “;g fd izfrfuf/k fodz; i= okyh Hkwfe dk vtZu ge lk;yku ds Hkwfe vftZr gksus ds cgqr igys gh Telephone foHkkx ds fy;s gqvk gS rFkk mlesa 15000@& izfr dBk dh nj ls Hkwfe dh dher r; gq;h gS mijksDr ckr dks ignore djds viuh finding nsus esa fo’ks"k Hkwfe v/;kfIr vf/kdkjh us l[r xyrh dh gSA” 10. The said paragraph has been denied in written statement filed by the appellant. In view of the vague allegation made in the reference application, we are of the view that the denial is sufficient. Even otherwise also, the contents of document can be proved by filing it. The claimants have failed to lead any evidence whatsoever oral or documentary in support of above case. Learned counsel for the respondents could not refer any evidence or pleadings to substantiate the findings of reference Court. 11. At the end, learned counsel for the respondents submits that this Court in First Appeal No. 746 of 1989, State of U.P. and another v. Ravindra Nath Rai, which arose under the same notification vide judgment and order dated 8th July, 2009 upheld the judgment and order of the reference Court awarding compensation at the rate of Rs. 12,500/- per katha. He further invited attention of the Court to judgment dated 8th July, 2009 delivered in First Appeal No. 745 of 1989, State of U.P. and others v. Ram Awadh Misra and others, relating to the same acquisition notification of the same award of the officer. In the said judgment, the Court has followed its earlier judgment delivered in First Appeal No. 746 of 1989. 12. In the said judgment, the Court has followed its earlier judgment delivered in First Appeal No. 746 of 1989. 12. Elaborating the argument, he submits that if market value of the land has been determined differently by different Courts higher rate awarded by High Court in respect of the land covered under the same notification should be granted in view of K. Periasami v. Sub-Tehsildar (Land Acquisition), (1994) 4 SCC 180 , as also in Goa Housing Board v. Ramesh Chandra Govind Pawaskar and another, (2011) 10 SCC 371 . The relevant portion of para-5 of the judgment of K. Periasami (supra) is reproduced below: “Having regard to the undisputed facts and the material placed on record and in the light of judgment of this Court in Karan Singh and others v. Union of India, (1997) 8 SCC 86, it is not possible for us to take a different view as regards market value of the lands covered by the same notification issued under Section 4(1) of the Act. Under these circumstances these appeals are entitled to succeed. They are accordingly allowed and the impugned judgments are modified by reducing the amount of compensation from Rs. 345 per sq yard (amounting to Rs. 3,45,000 per bigha) to Rs. 76,550 per bigha. The impugned judgments stand modified accordingly so far they concern fixation of market value making it clear that the respondents are entitled to statutory benefits available under the Act based on the amount of compensation as modified above. No costs.” 13, Learned counsel for the appellant, on the other hand, submits that in view of the fact that the evidence led by the claimants has been rejected by the reference Court and there being no other tangible evidence on record, the claimants are not entitled to challenge the award of the officer and demand higher compensation. 14. On a careful consideration of the matter, we find that in the case on hand, the compensation at the rate of Rs. 15,000/- per katha has been granted after deducting there from on account of largest of area. In relied upon judgment delivered in First Appeal No. 746 of 1989, this Court has confirmed the order of reference Court granting compensation at the rate of Rs. 12,500/- in respect of a parcel of land which was also acquired under the same notification. 15,000/- per katha has been granted after deducting there from on account of largest of area. In relied upon judgment delivered in First Appeal No. 746 of 1989, this Court has confirmed the order of reference Court granting compensation at the rate of Rs. 12,500/- in respect of a parcel of land which was also acquired under the same notification. A learned Single Judge has held that the award of compensation at the rate of Rs. 12,500/- was rightly assessed on the basis of cogent relevant material. 15. Having regard to the fact that the land of claimants in the present case was also acquired in the same notification as was in the case of Ravindra Nath Rai in First Appeal No. 746 of 1989 and Ram Awadh Misra in First Appeal No. 745 of 1989, we are of the opinion that the claimants herein also deserves the same treatment in view of relied upon decision by the respondents. 16. Viewed as above, it is held that the claimants-respondents are entitled to get compensation at the rate of Rs. 12,500/- per katha and to this extent, the judgment and order of the Court below stands modified. There being no other issue, the judgment and decree of the Court below in respect of others is confirmed. 17. The appeal succeeds and is allowed in part. ———————