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Madhya Pradesh High Court · body

2016 DIGILAW 874 (MP)

Mukesh v. State of M. P.

2016-09-29

J.P.GUPTA

body2016
JUDGMENT 1. This appeal under section 54 of the Land Acquisition Act, 1894, read with section 96 of the Code of Civil Procedure has been filed against the judgment dated 10.10.1996 passed by the IX Additional District Judge, Bhopal, in M.J.C. No.16/1996, arising out of reference application filed under section 18 of the Land Acquisition Act, 1894 (hereinafter referred to as ‘the Act’) against the award dated 15.12.1967 passed by the Land Acquisition Officer, Bhopal, in Revenue Case No.22-LA/65-66. 2. In brief, the relevant facts of the case which are not disputed are that by the notification dated 30.11.1965 issued under section 4(1) of the Act, the Collector, Bhopal, acquired the land area 323.37 acres which fell in the submerged area of Bhadbhada dam. Thereafter, the Land Acquisition Officer has passed an award on 15.12.1967 in case No.22-LA/65-66 whereby market value of the land at the rate of Rs.220/- per acre and on that amount 25% additional amount and 15% solatium, total at the rate of Rs.316/- per acre amount of compensation was fixed. 3. Against the aforesaid award, an application under section 18 of the Land Acquisition Act was submitted by 14 persons before the L.A.O. Bhopal, whose names are mentioned in the impugned judgment as claimants No.1 to 14. The L.A.O. Bhopal referred the matter to the District Judge, Bhopal. The aforesaid application was referred for determination of the amount of compensation of the acquired land and on the basis of aforesaid application in District Court, Bhopal, a reference case was registered. During the trial appellants No.2 and 3 submitted an application under Order 1 rule 10 CPC and they were allowed to join as claimants No.15 and 16. The learned reference Court by impugned order determined the market value of the acquired land at the rate of Rs.660/- per acre and also awarded statutory benefit as payable on the relevant dates. The learned reference Court in addition also directed that in the award passed by the L.A.O., no compensation has been awarded to appellants No.2 and 3 so also to Babulal, Laxmi Narayan, Ramkunwarbai and Badamilal and Shrikishan, therefore, it is not clear that on behalf of them why reference has been made and for the land area 36.23 acre only Hukumchand, respondent No. 3, has been declared to be entitled to the compensation. 4. 4. Appellants have raised an objection in this appeal to the effect that the impugned judgment passed by the learned reference Court is contrary to law, market value determined by the learned reference Court is very meager and in this regard evidence adduced by the parties has not been considered properly. On the basis of evidence adduced by the parties market value of the land should be fixed at the rate of Rs.3,000/- per acre and, accordingly, compensation be determined along with other statutory benefits. 5. Apart from it, appellants No.2 and 3 have also challenged the finding regarding apportionment of the compensation amount. The learned court below has directed to give full amount of compensation relating to the land area 36.23 acres to only Hukumchand, while the aforesaid land in the joint ownership of appellants No.2 and 3 and Babulal, Laxmi Narayan and Hukumchand in which appellants No.2 and 3 have one half share. Therefore, in this regard impugned judgment be set aside and L.A.O. be directed to pay one half share to appellants No.2 and 3. Appellant No.1 has prayed that according to the award of the L.A.O. he is entitled to compensation for the land area 2.47 acres and his brother Kishanlal was also entitled to compensation for the land area 9 acres; but his brother Kishan is no more and he is only his legal representative, hence the compensation, which was to be given to his brother, be given to him. 6. The appellants have filed this appeal on 8.1.1997 before this Court. At that time, other co-sharers of the land namely Hukumchand, Babulal, Laxmi Narayan and Ramkunwarbai were not incorporated as the respondents, but when on behalf of them, an application was filed as an intervener, the appellants submitted an application under Order 1 rule 10 CPC which was allowed vide order dated 2.4.2002 and respondents No.3, 4 and 5, i.e., Hukumchand, Babulal and Laxmi Narayan were added as a party to the appeal. At that time Ramkunwarbai had died and respondents No.3 to 5 were her legal representatives, being her son already joined, therefore, name of Shri Ramkunwarbai was not added as a respondent. 7. During the pendency of this appeal, appellant No.1 Badamilal and appellant No.2 Ramgopal and respondents No.3 to 5 have died, therefore, their legal representatives have been taken on record. 8. 7. During the pendency of this appeal, appellant No.1 Badamilal and appellant No.2 Ramgopal and respondents No.3 to 5 have died, therefore, their legal representatives have been taken on record. 8. On behalf of respondents No.1 and 2, it is submitted that the market value determined by the learned reference Court is in accordance with law and award passed regarding compensation does not require any interference. So far as direction of apportionment of the compensation award is concerned, it is not in accordance with law as in this regard, no reference was made to the learned lower Court, hence apparently direction regarding apportionment is not sustainable. It is also submitted that the learned Court below has recorded its finding in this regard against the factual aspects, as mentioned in the award of L.A.O., the name of claimants of Babulal, Laxmi Narayan and Ramkunwarbai are also recorded with Hukumchand. Learned Court below has ignored by oversight the aforesaid mentioning. This error may be rectified by this appellate Court. 9. On behalf of respondents No.3 and 4, it is contended that appellants No.2 and 3 have no right to file an appeal against the impugned order as they were not the party before the L.A.O. and they have not made an application under section 18 of the Act for reference and merely joining as a claimant before the reference Court, they are not entitled to challenge the impugned judgment. Similarly, the appeal is also not maintainable as the appellants did not join respondents No.3 to 5 as respondents at the time of filing of the appeal and they have not explained the reason, which was expected from the appellants by this Court according to the order dated 16.4.1999. Apart from it, the appeal is time barred against respondents No.3 to 5. In addition, it is also stated that the appellants have no right to challenge the order of the L.A.O. before the reference Court or this Court in connection with the apportionment of the compensation award as they have not filed an application under section 30 of the Act nor the L.A.O. has referred the matter for the dispute regarding apportionment of the compensation amount to the reference Court. In absence of it, neither the reference Court nor this Court in exercise of appellate jurisdiction has a right to decide this dispute. Hence, the appeal is liable to be dismissed. 10. In absence of it, neither the reference Court nor this Court in exercise of appellate jurisdiction has a right to decide this dispute. Hence, the appeal is liable to be dismissed. 10. On behalf of respondent No.5 Laxmi Narayan, who is legal representative of Ramkunwarbai, it is submitted that appellants No.2 and 3 have no right to file appeal. Hence, the appeal is liable to be dismissed. Apart from it, it is also submitted that the impugned judgment requires modification with regard to the direction regarding apportionment of compensation against the order of L.A.O. 11. That, during the pendency of the appeal on behalf of the appellant an application under Order 41 rule 27 CPC was also filed on 25.9.2000 for taking additional evidence on record and this Court by order dated 2.4.2002 directed that this application will be considered at the time of final hearing of the appeal. 12. Learned counsel for the respondents opposed the aforesaid application stating that the application is not acceptable as neither the reason has been shown for not submitting the proposed evidence during the trial nor the proposed evidence has any relevancy to dispose of the matter involved in this case as the documents are relating to claim of apportionment which is not to be decided by this Court in this appeal, hence the application be rejected. 13. Having heard learned counsel for the parties and on perusal of the record with a view to dispose of this appeal following questions are to be determined : (i) Whether the impugned judgment relating to direction about the apportionment of the compensation is without any jurisdiction, hence are not sustainable? (ii) Whether, in absence of reference regarding apportionment this appeal to that extent is not maintainable? (iii) Whether, this appeal is time barred against respondents No.3 to 5? (iv) Whether, this appeal is not maintainable on account of not explaining the reasons of filing this appeal without incorporating respondents No.3 to 5 as respondents? (v) Whether, the application filed by the appellant under Order 41 rule 27 CPC dated 25.9.2000 is acceptable? (vi) Whether the market value of the acquired land determined by the learned reference Court below is not appropriate and require any interference? (vii) Relief and cost? 14. (v) Whether, the application filed by the appellant under Order 41 rule 27 CPC dated 25.9.2000 is acceptable? (vi) Whether the market value of the acquired land determined by the learned reference Court below is not appropriate and require any interference? (vii) Relief and cost? 14. Questions No.1 to 5 : On perusal of record, it is evident that before the Reference Court, the Reference application under section 18 of the Act was made for determination of the compensation amount. It was not made for apportionment of the compensation amount. Hon’ble the apex Court in the judgment of Ambya Kalya Mhatre v. State of Maharashtra [2012(1) MPLJ (SC) 19], has held that the reference to objection to amount of compensation cannot be converted to objection to apportionment unless it is objected before the L.A.O. and after that reference made by the L.A.O. to the civil Court. Therefore, jurisdiction of the learned court below would be confined only to determine the compensation amount and the finding and direction given regarding apportionment of the compensation amount is non est in this regard the impugned judgment is without jurisdiction. Therefore, that order is not required to be challenged in appeal. Therefore, respondents No.3 and 4 and their mother Ramkunwarbai were not required to be made party in the case as the appellants’ appeal will be considered only against the finding relating to determination of compensation amount and for this purpose appeal is not against respondents No.3 to 4. They are only proper party and are not necessary party. In the aforesaid circumstances, this appeal cannot be considered to be time barred or not maintainable in the light of aforesaid objection raised by on behalf of respondents No.3 and 4 and there will be no adverse effect of non-offering the explanation, as expected by the order dated 16.4.1999 about non-joining of respondents No.3 to 5 and their mother as respondents in the appeal. But, in view of the matter the appeal regarding objection of apportionment is not maintainable. 15. But, in view of the matter the appeal regarding objection of apportionment is not maintainable. 15. When the question regarding apportionment of the compensation amount was not required to be determined by reference Court or is not required to be determined by this Court then application under Order 41 rule 27 CPC for taking evidence on record to establish the claim about the apportionment of the compensation amount is not required to be dealt with, as it is unnecessary and not acceptable. Thus, it is dismissed. In view of aforesaid, questions No.1 to 5 are answered accordingly. 16. Question No.6 : On perusal of the record it is found that the learned Court below has determined the market value of the acquired land at the rate of Rs. 660/- per acre on the basis of the registered sale deed dated 16.5.1958, which was not produced before the Court. This sale deed was found to be attached with the record of the L.A.O. The record of the L.A.O. is not to be considered as evidence in deciding the reference as it is not permissible. Only the evidence adduced by the party before the learned reference Court can be considered to determine the question referred to the Court as laid down by the apex Court in the judgment of Ramanlal Deochand Shah v. State of Maharashtra [ (2013)14 SCC 50 ]. 17. It is also found that the learned lower Court has discarded the sale deed, Ex.P-1, stating that it does not belong to village Beelkhera, where the acquired land is situated while the certified copy of the registered sale deed belongs to village Beelkhera. Thus, the reason given by the learned lower court to discard the sale deed Ex.P-1 is against the record. It may be taken into consideration to determine the market value of the acquired land if other factor requires for comparison are established. 18. According to the registered sale deed, Ex.P-1, dated 11.6.1957, land area 1.36 acre was sold for Rs.3,575/-. In other words, at the rate of Rs.2,630/- per acre. This sale transaction had taken place on 11.6.1957 and the rate of compensation is required to be determined in the year 1965. 18. According to the registered sale deed, Ex.P-1, dated 11.6.1957, land area 1.36 acre was sold for Rs.3,575/-. In other words, at the rate of Rs.2,630/- per acre. This sale transaction had taken place on 11.6.1957 and the rate of compensation is required to be determined in the year 1965. Considering the factor of escalation for more than 8 years, on an average 10% per year value of the land would be assumed to be enhanced with cumulative effect, which would worked out to be just double the rate and thus we can assume it at the rate of Rs.5,260/- per acre. But, the appellants have not led any evidence to show as to whether the acquired land is situated near the land sold by Ex.P-1 or the quality of the land was the same and other amenities available to the land sold by Ex.P-1 was same in comparison to the acquired land. Without disclosing these factors, sale-deed, Ex.P-1, cannot be considered to be relevant transaction to determine the market value of the acquired land under the comparative sales method. {See : Ravindra Narayan v. Union of India [ (2003)4 SCC 481 ] and Bhupal Singh v. State of Haryana [ (2015)5 SCC 801 ]}. 19. It is evident from the record that the acquired land was the part of catchment area of the pond where the dam has been constructed and was not much fertile; as the learned lower Court has recorded its finding with cogent reasoning in paragraph 7 of the impugned judgment. Apart from Ex.P-1, there is no relevant oral or documentary evidence on record on the basis of which the market price of the acquired land can be determined. Therefore, the appellants have failed to establish their claim for the price more than Rs.660/- per acre as determined by the learned lower Court. Therefore, the appellants’ appeal for enhancement of the compensation amount is not acceptable. However, the market price fixed by the learned lower Court on the basis of inconsiderable evidence is not required to be interfered with as respondents No.1 and 2 have not challenged the same by filing appeal against the aforesaid finding of market value of the acquired land. Therefore, the award of reference Court to that extent against respondents No.1 and 2 has attained finality. 20. Therefore, the award of reference Court to that extent against respondents No.1 and 2 has attained finality. 20. Hence, it is held that the market value determined by the Court below cannot be said to be on a lower side, as claimed by the appellants and the same finding cannot be set aside on the basis of the objection raised by the appellants and the market value cannot be determined at the rate of Rs.3,000/- per acre. Thus, this question is also determined and answered accordingly. 21. Question No.7 : In view of the aforesaid discussion and finding, appellants appeal for enhancement of the compensation has no substance, hence liable to be dismissed. Accordingly, it is dismissed and the impugned judgment so far as it relates to finding of the Court below as to apportionment is concerned, it is without jurisdiction and non est, hence to that extent the impugned judgment is set aside. 22. Here, it is made clear that in accordance with law, the concerned parties are entitled to get compensation as per the award passed by the L.A.O. subject to the modification of the compensation amount by the impugned judgment and so far as the dispute regarding apportionment of the compensation amount is concerned, all parties are free to take recourse as per the law. No order as to cost.