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2013 DIGILAW 1359 (JHR)

Sachida Nand Lal v. State of Jharkhand

2013-12-13

APARESH KUMAR SINGH, R.BANUMATHI

body2013
JUDGMENT R. Banumathi, C.J.––This L.P.A is preferred against the judgment and order dated 10.9.2004 passed in F.A No.118/1994R, by which learned Single Judge dismissed the appeal, declining to enhance the compensation awarded to the appellant. 2. By notification no.327 II dated 5.7.1982, under Section 4 of the Bihar Land Acquisition Act, lands of the appellant, Tand II, Plot No.1661, Khata No.81, Lohardaga, along with the lands of others were acquired by the State of Bihar for construction of industrial estate. Notification no.327 II dated 5.7.1982 was published in the Gazette on 16.7.1982. Declaration No.426 II dated 16.11.1984 was published on 1.2.1985 and the award was passed on 4.11.1987. Possession was taken on 7.4.1989. Based on Ext.B issued by the Divisional Commissioner, compensation was awarded to the appellant at the rate of Rs.9630/- per acre for .28 acres of land acquired from the appellant. 3. On the objection raised by the appellant and other landowners Section 18 reference was made. The appellant raised objections, viz., (i) the land was situated within Lohardaga Municipal area and fit for construction of commercial and residential buildings; (ii) the land was situated by the side of Ranchi Gumla Main Road, besides being by the side of the land acquired for agriculture market area and (iii) the land was situated within the circle of Lohardaga district where the value of the municipal area land had gone high and therefore, potential of the land had increased. On those objections, the appellant took the plea that the compensation awarded by the Collector is inadequate and unjust. 4. In the Reference Court, the appellant and other-claimants had filed sale deeds, Ext.1 and Ext.1/A and survey map, Ext.4, and adduced oral evidence. Ext.1 and Ext.1/A were the sale deeds dated 5.7.1982 under which Man Mohan Lal, husband of claimant, Prabhawati Devi, in L.A Reference Case No.2/1988, had sold on the day of notification under section 4 of the Act a small piece of Dhan III land @ Rs.15,00/- per decimal. The claimants had examined AW1, Sri Govind Mishra, who purchased the land by Ext.1 and 1/A. AW2, Man Mohal Lal, and the appellant, who examined himself as AW3 and AW4, Ganga Prasad, who is the husband of another claimant, Annapurna Devi (appellant in F.A No.7/1994), were examined. The claimants had examined AW1, Sri Govind Mishra, who purchased the land by Ext.1 and 1/A. AW2, Man Mohal Lal, and the appellant, who examined himself as AW3 and AW4, Ganga Prasad, who is the husband of another claimant, Annapurna Devi (appellant in F.A No.7/1994), were examined. The respondent had produced Ext.B letter issued by the Divisional Commissioner giving guidelines for fixing the price of the lands as per classifications of the land. Based on Ext.B, the Reference court held that the claimants have not been successful in showing that the valuation of the acquired land fixed by the Collector is unjust and improper. In so far as the documents pertaining to the lease to BISCOMOUN by the Agriculture Market at the Salami of Rs.1,00,000/- per acre per year and on a monthly rent of Rs.1500/- per acre are concerned, the Reference court held that the said transaction took place in the year 1984, i.e. after two years of the acquisition and therefore, the lease of BISCOMOUN cannot be taken as the basis for arriving at a conclusion that the compensation awarded in 1982 was inadequate and the Reference court dismissed Section 18 reference declining to enhance the compensation. 5. Being aggrieved, the appellant had preferred F.A No.118/1994R. Learned Single Judge held that sellers, Man Mohan Lal Agrawal is the husband of Prabhawati Devi and Brij Mohan Lal Agrawal is the husband of Smt. Sharda Devi and execution of the sale deeds by none else than the most interested persons, i.e. husband of the applicants, on the very day of the Section 4(1) notification cannot be relied upon and there is room for believing that the sale deeds are not bona fide ones. Learned Single Judge affirmed the view taken by the Reference Court that the transaction, Ext.1 and Ext.1/A, does not appear to be bona fide and therefore, rejected the plea of fixing the market price on the basis of Ext.1 and Ext.1/A. 6. Learned Single Judge affirmed the view taken by the Reference Court that the transaction, Ext.1 and Ext.1/A, does not appear to be bona fide and therefore, rejected the plea of fixing the market price on the basis of Ext.1 and Ext.1/A. 6. Regarding the view taken by the Reference Court relying upon Ext.B, letter issued by the Divisional Commissioner giving guidelines for fixing price of the land as per the classification of the land, learned Single Judge held that while determining the market value of the land, as the Divisional Commissioner of the Division has no functionary power under the Act and the status of the Divisional Commissioner is an outsider for such a purpose, Ext.B could not have been a ground for fixing price of the land acquired and also it cannot be relied upon by the Court under Section 23 of the Act for fixing the price of the land acquired. However, learned Single Judge held that the trial court has totally erred in relying on Ext.B and answered the point accordingly. 7. With reference to the oral evidence adduced by the appellant, learned Single Judge pointed out that though it is evident that the land acquired is within the Municipal area and within the vicinity of the land, there are hospital, market and school etc., the learned Single Judge held that Lohardaga having been a sub-division in the year 1972 and made as a district only in the year 1982, mere saying that the land acquired has got potential for developing in future would not be sufficient. Regarding lease to BISCOMOUN by the Agriculture Market (dated 5.12.1984), by which 2 acres of land was allotted for a consideration of Rs.2 lacs, the learned Single Judge held that the said lease was two years later than the date of the acquisition; therefore, the same cannot be the basis for fixing the compensation. On those findings, learned Single Judge dismissed the appeal. 8. Being aggrieved, the appellant has preferred intra-court appeal. Mr. On those findings, learned Single Judge dismissed the appeal. 8. Being aggrieved, the appellant has preferred intra-court appeal. Mr. Rajiv Anand, learned counsel appearing for the appellant, submitted that the learned Single Judge erred in not enhancing compensation @ Rs.1500/- per decimal based on Ext.1 and Ext.1/A. Learned counsel further submitted that the learned Single Judge erred in not taking into consideration that the acquired land was leased for a consideration of Rs.1 lac per acre to BISCOMOUN by the Agriculture Market and the Reference court and the learned Single Judge ought to have taken into consideration the same as the basis for arriving at a just compensation. Drawing our attention to the oral evidence, learned counsel submitted that the fact that the acquired land has potential for development was not kept in view by the learned Single Judge. 9. We have heard learned counsel for the respondent. Learned counsel for the respondent submitted that the appellant had not produced any document of sale transaction prior to section 4(1) notification for comparison and the documents relied upon by the appellant are either on the date of section 4(1) notification or subsequent thereto and therefore, the Reference court and the learned Single Judge rightly declined to place reliance upon those documents. Learned counsel further submitted that the order of the learned Single Judge does not suffer from any error of law warranting interference of this Court in this intra-court appeal. 10. We have considered the submissions and the order of the learned Single Judge and materials on record. 11. Section 23 of the Act provides that in determining the amount of compensation to be awarded for land acquired under the Act, the Court shall take into consideration the market value of the land at the date of the publication of the notification under section 4 of the Act. Section 23 contains a list of positive factors and section 24 contains list of negatives vis-a-vis the land under acquisition to be taken into consideration, while determining the amount of compensation. One of the principles for determining the market value of the acquired land would be the price that the willing purchaser would pay to a willing seller for the property having due regard to its existing condition with all its existing advantages and its potential possibilities ( (2010) 13 SCC 398 ) (Charan Dass Vs. H.P. Housing & Urban Development Authority). H.P. Housing & Urban Development Authority). One of the well accepted methods for ascertaining the market value of the land in acquisition cases is the contemporaneous transaction or comparable sale in respect of the land in the vicinity of the acquired land. In (2010) 13 SCC 398 , (Charan Dass Vs. H.P. Housing & Urban Development Authority), and in various other decisions, Hon'ble Supreme Court emphasized the contemporaneous sale transaction for ascertaining the market value. 11. The burden lies upon the applicants to produce the contemporaneous sale transaction of the lands contiguous to the acquired land so as to show that the compensation awarded by the Acquisition Officer is inadequate. 12. As pointed out earlier, the appellant and other applicants had produced Ext.1 and Ext.1/A, sale deeds dated 5.7.1982 which were executed on the date of Section 4(1) notification and in the said sale deeds, the sellers are Man Mohan Lal Agrawal, who is the husband of Prabhawati Devi (appellant in F.A No.118/1994R) and Brij Mohan Lal Agrawal, who is the husband of Smt. Sharda Devi (another appellant in F.A No.118/1994R). As pointed out by the learned Single Judge, the said Ext.1 and Ext.1/A, sale deeds, are the sale deeds by none-else than the most interested persons, i.e. husband of the appellant, Prabhawati Devi, executing the sale deed in favour of husband of another appellant, namely, Sharda Devi, on the same day of section 4(1) notification and the documents cannot be said to be bona fide transaction. Therefore, the said document cannot be relied upon and rightly ignored by the Reference court and by the learned Single Judge. 13. Another document relied upon by the applicants, lease deed of 2 acres of land dated 5.12.1984 by the Agriculture Market to the BISCOMOUN for a consideration of Rs.2 lacs and the said document is about two years later than the date of issuance of section 4(1) notification. The document for comparable instance relied upon by the applicants must be a contemporaneous document and the learned Single Judge rightly declined to place reliance on the same on the ground that the same is two years later than the date of acquisition. 14. The document for comparable instance relied upon by the applicants must be a contemporaneous document and the learned Single Judge rightly declined to place reliance on the same on the ground that the same is two years later than the date of acquisition. 14. Placing reliance on the judgment reported in 1988 BLJ 707 , (Bijoy Kumar Santhali Versus State of Bihar), learned counsel submitted that the Commissioner had no role to play in the land acquisition matter and therefore, for determining the market value, reliance ought not to have been placed upon on Ext.B, letter issued by the Divisional Commissioner. In 1988 BLJ 707 (Bijoy Kumar Santhali Versus State of Bihar), it was held that “It is well known that under the provisions of the Land Acquisition Act functionaries mentioned therein have been assigned specific duties and powers. Land Acquisition Act is also a self-contained Code and lays down a complete procedure thereunder” and therefore, the statutory functionaries cannot pass an order on the basis of recommendation and/or in consultation with an authority who has no role to play under the statute. Of course, the Reference court was not right in placing reliance on Ext.B. Learned Single Judge also pointed out that the said Ext.B could not have been a ground for fixing the price of the land acquired and it cannot be relied by the Court under section 23 of the Act for fixing the price of the land acquired. Therefore, we do not find any error in law warranting interference with the order of the learned Single Judge. 15. As pointed out earlier, burden lies upon the claimants to prove that the compensation awarded by the Acquisition Officer was inadequate and mere oral evidence of the witnesses would not be sufficient to hold that the acquired land had potential and the compensation awarded has to be adequate. In (2011) 6 SCC 47 (Trishala Jain & Ano. Vs. State Of Uttaranchal & Ano.), Hon'ble Supreme Court held that when the applicants have not brought on record any evidence, then the Court will not be in a position to award compensation merely on the basis of imagination, conjecture etc. In (2011) 6 SCC 47 (Trishala Jain & Ano. Vs. State Of Uttaranchal & Ano.), Hon'ble Supreme Court held that when the applicants have not brought on record any evidence, then the Court will not be in a position to award compensation merely on the basis of imagination, conjecture etc. In paragraph no.63, Hon'ble Supreme Court held as under:- “63.Under the Act, as settled by various judgments of this Court, there are different methods of computation of compensation payable to the claimants, for example it can be based upon comparable sale instances, awards and judgments relating to the similar or comparable lands, method of averages, yearly yields with reference to the revenue earned by the land, etc. Whatever, method of determining the compensation is applied by the court, its result should always be reasonable, just and fair as that is the purpose sought to be achieved under the scheme of the Act. For attaining that purpose, application of some guesswork may be necessary but this principle would have hardly any application in a case of no evidence. In other words, where the parties have not brought on record any evidence, then the court will not be in a position to award compensation merely on the basis of imagination, conjecture, etc.” 16. Since, in the present case, the applicants/claimants had not brought on record any evidence, the Court would not be in a position to award compensation merely on the basis of interested oral testimonies of the witnesses, learned Single Judge rightly declined to interfere with the award passed by the Reference court. We do not find any reason to interfere with the order of the learned Single Judge and the L.P.A is liable to be dismissed. 17. Learned counsel for the appellant submitted that the amount of compensation awarded by the Acquisition Officer has not been deposited and prayed for issuance of a suitable direction. 18. In the result, L.P.A is dismissed. The respondents are directed to deposit the compensation amount along with 30% solatium and also interest as per section 34 of the Land Acquisition Act at the rate of 9% per annum for one year from 7.4.1989 and thereafter at the rate of 15% till the date of deposit. The amount to be deposited within two months from the date of receipt of a copy of this order. The amount to be deposited within two months from the date of receipt of a copy of this order. Later on: After we pronounced the judgment, learned counsel for the appellant Mr. Rajiv Anand pointed out that in terms of section 23(1)(A) of the Land Acquisition Act, the appellant is also entitled to interest @12% per annum on the market value for the period commencing from the date of publication of the notification under section 4 of the Act, till the date of the Award passed or the date of taking possession of the land whichever is earlier. In this case, the Award was passed on 4.11.1987 and the date of taking possession is 7.4.1989. In terms of section 23(1)(A) of the Act, the appellant is entitled to interest @12% per annum on the market value awarded from the date of formal notification i.e. 5.7.1982, till the date of the Award i.e. 5.11.1987. No order as to cost (s).