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2013 DIGILAW 633 (PAT)

Dhruvniti Prasad Singh v. State of Bihar

2013-05-17

MUNGESHWAR SAHOO

body2013
MUNGESHWAR SAHOO, J.:–The claimant-appellant has filed this First Appeal under Section 54 of the Land Acquisition Act against the judgment and award dated 14.06.1982 passed by the learned Subordinate Judge, Begusarai in Land Acquisition Case No.1 of 1975/265 of 1981 whereby the court below rejected the claim application referred under Section 18 of the Land Acquisition Act and thereby confirmed the compensation awarded by the Collector. 2. The claimant-appellant’s land measuring 6.245 acres of village Rani was acquired by the State Govt. for the purpose of rehabilitation of people of village Jhamathia. Notification under Section 4 of the Land Acquisition Act was issued on 22.09.1971. The appellant was awarded a total compensation of Rs.82,216.67 which was received by the appellant with objection and he filed an application claiming enhancement of the compensation. According to the appellant, there were Police Station, Block Office, High School and Middle School around the acquired land and the Railway Station was also nearer to the acquired land. Likewise, the National Highway was also very near. According to the appellant, the market value of the land was Rs.50,000 per acre on the date of acquisition. The appellant also claimed Rs.10,000 for the trees standing on the acquired land. The appellant also claimed Rs.20,000 on account of severance of the lands from the remaining lands of the appellant. 3. The appellant also claimed compensation at the rate of Rs.2,000 per annum alleging that his 2.78 acres was notified for acquisition and possession was taken by the State Govt. on 07.01.1972 but still today, the same has not been released and the Govt. is in possession of the same. 4. The case of the State of Bihar is that the compensation awarded is adequate and after considering the sale instances, the value of the land was fixed. 5. By the impugned judgment, the Land Acquisition Judge recorded the finding that the compensation awarded to the appellant is just, reasonable and adequate and accordingly, dismissed the reference case. 6. The learned counsel, Mr. Md. Waliur Rahman appearing on behalf of the appellant submitted that the learned court below has not considered the effect of the sale instances filed by the appellant to prove the claim of appellant, the rate of Rs.50,000 per acre in right perspective and has wrongly discarded the sale deeds. 6. The learned counsel, Mr. Md. Waliur Rahman appearing on behalf of the appellant submitted that the learned court below has not considered the effect of the sale instances filed by the appellant to prove the claim of appellant, the rate of Rs.50,000 per acre in right perspective and has wrongly discarded the sale deeds. The Land Acquisition Judge also wrongly did not give the compensation for severance of the acquired land from remaining land for which the appellant was entitled to and the learned court below also rejected the claim of the appellant for compensation regarding illegal possession of his land measuring 2.78 acres. The learned counsel further submitted that the Lower Court has not given any separate compensation for the house acquired by the State Govt. Further, the learned counsel submitted that the amount paid by the State Govt. is very meager amount and the Land Acquisition Judge has wrongly confirmed the same. The learned counsel placed the oral evidences as well as documentary evidences one by one. 7. On the contrary, the learned S.C.6, Mr. J. S. Arora submitted that all the sale instances produced by the appellant relates to very small piece of land. Therefore, the same cannot be taken as guideline for fixation of prevalent market value at the time of acquisition of the land. The lands acquired in total is near about 17 acres i.e. 16.94 acres and no prudent person can purchase the acquired land in the same rate for which one can purchase a small land. The learned S.C.6 further submitted that the oral evidences produced by the appellant are not reliable and when registered sale deeds have been produced by the appellant as well as the State of Bihar, considered the sale instances in Exhibit A, the oral evidences cannot be relied upon and the prevalent market value of the land cannot be fixed on the basis of oral evidences only as such, the learned trial court has rightly held that oral evidences are not reliable. 8. 8. In view of the above contentions of the parties, the point arises for consideration in this appeal is as to “whether the appellant has been able to prove that he is entitled for the compensation as claimed by him” and “whether the lands acquired were capable of fetching more value at the time of acquisition” or “whether the compensation awarded by the Collector is just and reasonable for the lands acquired?” 9. According to the claimant, the acquired land measuring 6.245 acres is surrounded by the Schools, Police Station, Block Office and Railway Station and National Highway. The value of the land was Rs.50,000 on the date of acquisition. Admittedly, the State of Bihar paid Rs.82,216.67 total compensation for the said land. 10. The appellant has produced oral as well as documentary evidences in support of his claim of Rs.50,000 per acre. P.W.2 stated that in the acquired land maize, sugarcane, wheat, paddy and chilli were grown. This witness claimed himself to be the karpardaz. P.W.1 also stated that maize, sugarcane, wheat and tobacco were produced. Same is the evidence of P.W.4. P.W.5 said that garlic and vegetables were grown. According to these witnesses, the value of the land was Rs.50,000 on the date of acquisition. However, on the basis of these oral statements, the market value of the acquired land cannot be fixed. It may be mentioned here that the appellant has filed the sale deeds which have been proved by P.W.7, 8 and P.W.11 to 13. Exhibit 1 is registered sale deed dated 20.07.1970. By this Exhibit 1, the appellant himself had sold 1 katha land for Rs.1,000. Exhibit 1/A is registered sale deed dated 07.10.1971 whereby 4 ¾ dhurs land was sold. Exhibit 1/B is the registered sale deed dated 26.04.1971 whereby 15 dhurs land was sold for Rs.850. Exhibit 1/C is registered sale deed dated 20.07.1971 whereby 2 kathas land was sold for Rs.1,500. Exhibit 1/D is the registered sale deed dated 07.10.1971 whereby 7 kathas 12 dhurs land was sold for Rs.8,400. Exhibit 1/E is the registered sale deed dated 30.10.1971 whereby 5 kathas land was sold for Rs.15,000. Exhibit 1/F is registered sale deed dated 22.05.1971 whereby 1 katha 8 dhurs land was sold for Rs.2,400. Exhibit 1/G is registered sale deed dated 28.12.1970 whereby 1 ½ katha land was sold for Rs.1,300. Exhibit 1/E is the registered sale deed dated 30.10.1971 whereby 5 kathas land was sold for Rs.15,000. Exhibit 1/F is registered sale deed dated 22.05.1971 whereby 1 katha 8 dhurs land was sold for Rs.2,400. Exhibit 1/G is registered sale deed dated 28.12.1970 whereby 1 ½ katha land was sold for Rs.1,300. The learned counsel for the appellants gave much emphasis on these registered sale deeds and submitted that these transactions were very near to the date of acquisition of the land but the trial court did not rely upon and did not fix the market value according to the said sale deeds. 11. From perusal of the aforesaid sale deeds, it appears that all the sale deeds relate to very small piece of land and are either of the year 1970 or of the year 1971. From perusal of the judgment of the Lower Court, it appears that the Lower Court observed that the sale deed, Exhibit 1 might have been executed by the appellant for enhancement of value of his land which was likely to be acquired by the State of Bihar. Further, the entire locality was knowing about the proposed acquisition of the land, therefore, this type of sale deeds were created for the purpose of creation of evidence. As stated above, all these sale deeds relate to small piece of land and some sale deeds are after notification under Section 4 of the L.A. Act and some are just prior to some months of the said notification. 12. It may further be mentioned that in the present case, near about 17 acres of land has been acquired. Therefore, the question is whether the value of the land sold by the sale deeds can be taken to be the guideline for fixation of market value of about 17 acres of land. This question has been answered by the Apex Court in the case of State of U.P. and others Vs. Ramkumari Devi and others, (1996) 8 Supreme Court Cases 577 and at paragraph 4 has held as follows:– “4. It is seen that small prices of land of an extent of 60’x20’, 40’x40’ and 1600 sq. ft. were sold by the claimants, obviously on coming to know of the proposed acquisition. It is common knowledge that acquisition proposal would be made at an earlier point of time and finalization of acquisition would take a long time. It is seen that small prices of land of an extent of 60’x20’, 40’x40’ and 1600 sq. ft. were sold by the claimants, obviously on coming to know of the proposed acquisition. It is common knowledge that acquisition proposal would be made at an earlier point of time and finalization of acquisition would take a long time. In the process, on becoming aware of the acquisition, obviously, these sale deeds have been brought into existence to inflate the market value. It is laid down by this Court which is a well-settled principle that it is the duty of the court to assess reasonable compensation. Burden is on the owner to prove the prevailing market value. On adduction of evidence by the parties, the acid test which the court has to adopt is that the court has to sit in the armchair of a prudent purchaser, eschew feats of imagination and consider whether a reasonable prudent purchaser in the open market would offer the same price which the court is intending to fix the market value in respect of the acquired land. Since it is a compulsory acquisition, it is but the solemn duty of the court to assess reasonable compensation so as to allow the same to the owner of the land whose property has been acquired by compulsory acquisition and also to avoid needless burden on public exchequer. No feats of imagination would require to bog the mind that when 13.75 acres of land was offered for sale in an open market, no prudent man would have credulity to purchase that land on square foot basis. The High Court as well as the District Judge have committed a grave error in not applying the above acid test while considering the case. They merely proceeded by accepting the sale deeds which were obviously brought into existence to inflate the market value and determined the compensation on the price settled by them. Thus, we hold that both the courts have applied a wrong principle of law in determining the compensation.” 13. In 1996(3) SCC 766 (Hookiyar Singh and others Vs. Special Land Acquisition Officer, Moradabad and another), the Hon’ble Supreme Court has held that it is settled law that the burden of proof of market value prevailing as on the date of publication of notification under Section 4(1) of the L.A. Act is always on the claimants. In 1996(3) SCC 766 (Hookiyar Singh and others Vs. Special Land Acquisition Officer, Moradabad and another), the Hon’ble Supreme Court has held that it is settled law that the burden of proof of market value prevailing as on the date of publication of notification under Section 4(1) of the L.A. Act is always on the claimants. The Hon’ble Supreme Court has also held that though the Apathy and Blatant lapse on the part of the acquiring officer to adduce evidence and also improper or ineffective or lack of interest on the part of counsel for the State to examine the witnesses, on material facts it is the duty of the court to carefully scrutinize the evidence and determine just and adequate compensation. All these decisions of the Hon’ble Supreme Court clearly speaks that it is the burden of the claimants to satisfy the Court that the compensation awarded by the Land Acquisition Officer is inadequate. 14. Recently, the Apex Court in the case of Karnataka Urban Water Supply and Drainage Board and others Vs. K.S. Gangadharappa and another, (2009) 11 Supreme Court Cases 164 at paragraph 8 has held as follows:– “8. In Suresh Kumar Vs. Town Improvement Trust, in a case under the Madhya Pradesh Town Improvement Trusts Act, 1960 this Court held that the rates paid for small parcels of land do not provide a useful guide for determining the market value of the land acquired. While determining the market value of the land acquired, it has to be correctly determined and paid so that there is neither unjust enrichment on the part of the acquirer nor undue deprivation on the part of the owner. It is an accepted principle as laid down in Vyricherla Narayana Gajapatiraju Vs. Revenue Divl. Officer that the compensation must be determined by reference to the price which a willing vendor might reasonably expect to receive from the willing purchaser. While considering the market value disinclination of the vendor to part with his land and the urgent necessity of the purchaser to buy it must alike be disregarded; neither must be considered as acting under any compulsion. The value of the land is not to be estimated as its value to the purchaser. But similarly this does not mean that the fact that some particular purchaser might desire the land more than others is to be disregarded. The value of the land is not to be estimated as its value to the purchaser. But similarly this does not mean that the fact that some particular purchaser might desire the land more than others is to be disregarded. The wish of a particular purchaser, though not his compulsion may always be taken into consideration for what it is worth. Section 23 of the Act enumerates the matters to be considered in determining compensation. The first criterion to be taken into consideration is the market value of the land on the date of the publication of the notification under Section 4(1). Similarly, Section 24 of the Act enumerates the matters which the court shall not take into consideration in determining the compensation. A safeguard is provided in Section 25 of the Act that the amount of compensation to be awarded by the court shall not be less than the amount awarded by the Collector under Section 11. Value of the potentiality is to be determined on such materials as are available and without indulgence in any fits of imagination. Impracticability of determining the potential value is writ large in almost all cases. There is bound to be some amount of guesswork involved while determining the potentiality. ” 15. On the contrary, the State of Bihar has examined D.W.1 and D.W.2 and has produced Exhibit A and B. From perusal of Exhibit A, the valuation khatiyan and sale report, Exhibit B, it appears that the Land Acquisition Officer has considered about 76 sale instances and thereafter, fixed the market value on the basis of the said sale instances. 16. In view of the above facts and the settled law laid down by the Apex Court in my opinion, the appellant had not produced reliable evidence in support of his case that the market value of the land acquired was Rs.50,000 per acre on the date of acquisition. The burden was on the appellant to satisfy the court that the compensation awarded is inadequate. Because of the settled principles of law referred to above, the Exhibit 1 series i.e. the registered sale deeds produced by the appellant cannot be taken to be the guideline for fixation of the market value of the land because all these sale deeds relate to selling of small piece of land for the purpose of construction of house. 17. Because of the settled principles of law referred to above, the Exhibit 1 series i.e. the registered sale deeds produced by the appellant cannot be taken to be the guideline for fixation of the market value of the land because all these sale deeds relate to selling of small piece of land for the purpose of construction of house. 17. The learned counsel for the appellant relied upon a decision of the Apex Court reported in (2010) 15 Supreme court Cases 60, Executive Engineer (Electrical), Karnataka Power Transmission Corporation Limited Vs. Assistant Commissioner and Land Acquisition Officer, Gadag and others and submitted that the sale deeds produced by the appellant were proximity in time and distance. Therefore, the court below should have relied upon the said sale deeds. From perusal of the decision aforesaid, it appears that the Hon’ble Supreme Court was considering the sale deeds for the lands which were situated at a distance of half kilometer or more and the sale deeds which took place three years prior to the acquisition. In the present case, as discussed above, the sale deeds relate to very small areas and with regard to the same, I have already discussed the law laid down by the Apex Court. This decision relied upon by the appellant do not relates to the said point. In my opinion, therefore, it is not helpful to the appellant. 18. So far the submission of the learned counsel that possession of 2.78 acres land has not been given to the appellant is concerned, from perusal of the order dated 05.05.1972 passed by the Collector which has been proved by the State of Bihar as Exhibit D/2, it appears that the said land was released in favour of the appellant on that very date and a letter was written to the appellant on 09.09.1972. Exhibit B/1 is the letter dated 06.10.1972 written by Additional Collector addressed to the Director of Land Acquisition for release of the land and Exhibit D/3 is the letter dated 20.02.1973 written by Director to Additional Collector by which the release was approved. From the above documentary evidences, it is clear that land has already been released in favour of the appellant. Therefore, only the bald statement of the appellant to the effect that possession has not been delivered is not acceptable. 19. From the above documentary evidences, it is clear that land has already been released in favour of the appellant. Therefore, only the bald statement of the appellant to the effect that possession has not been delivered is not acceptable. 19. So far the submission of the learned counsel for the appellant that no compensation for the house and tube well acquired has been given is concerned, from perusal of the evidence of P.W.2 and P.W.10, it appears that the house and the tube well have not been acquired and still, the same are in possession of the appellant. This is the finding of the court below also. 20. So far the submission of the learned counsel for the appellant that no compensation has been given for severance of the acquired land from the remaining land is concerned, again, it may be mentioned that the witness of the plaintiff himself i.e. P.W.10 has stated that after acquisition also, still 7-8 bighas land remained in possession of the appellant. No reliable evidence has been produced that because of severance, how the value of the remaining land diminished. Therefore, only because part of the land has been acquired, it cannot be said that the value of the remaining land has been diminished and, therefore, the appellant has been entitled for more compensation. Moreover, considering all these aspects, the total compensation has been given by the Land Acquisition Officer. It is for the appellant to prove that the acquired land could have fetched more price than the price given by the State of Bihar but in view of the above discussion, in my opinion, the appellant has failed to do so. Therefore, the finding of the Lower Court i.e. the Land Acquisition Judge cannot be interfered with as in my opinion also, the compensation awarded by the Land Acquisition Officer is just and proper. Accordingly, the finding of the Land Acquisition Judge is hereby confirmed. 21. In the result, I find no merit in this First Appeal and accordingly, this First Appeal is dismissed.