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2018 DIGILAW 2204 (HP)

Subhash Mahajan v. Land Acquisition Collector

2018-12-13

DHARAM CHAND CHAUDHARY

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JUDGMENT : Dharam Chand Chaudhary, J. This appeal is directed against the award dated 9.5.2008 passed by learned District Judge, Bilaspur in Land Reference Petition No. 2 of 1996, whereby the claim of the appellant (hereinafter referred to as the ‘petitioner’) for compensation with respect to the house he allegedly constructed on the land bearing Khasra No. 87/1 by way of spending huge money though has been acquired, however, no compensation paid. 2. The petitioner claims himself to be the owner of land bearing Khasra No. 87 situated in village Baloh, Pargana, and Tehsil Sadar, District Bilaspur H.P. The dispute is qua the compensation paid to him towards the market value of the house i.e. Rs.37,90,000/-, he allegedly had constructed well before the acquisition of the land bearing Khasra No. 87. The land was acquired by the beneficiary i.e. M/s Associated Cement Corporation Limited, Gagal, Cement Works, Barmana, District Bilaspur (H.P.), respondent No.1. The Notification under Section 4 of the Land Acquisition Act (hereinafter referred to as the ‘Act’ in short) was issued on 1.10.1992. The compensation of the acquired land though assessed and paid to the petitioner, however, not qua the house in dispute allegedly was in existence over the acquired land. A sum of Rs.80,00,000/- was, therefore, claimed as compensation on account of acquired house. 3. The respondents have contested the claim of the petitioner on the grounds inter-alia that the market value of the acquired land has been assessed correctly and the petitioner is not entitled to any enhanced amount of compensation. As regards, the market value of the house, it is stated that the house was constructed by the petitioner after the Notification regarding the acquisition of the land under Section 4 of the Act was issued. The petition, as such, was sought to be dismissed. 4. On the pleadings of the parties, learned reference Court below has framed the following issues :- 1. Whether the petitioner has not been paid adequate compensation in respect of the land acquired? OPP. 2. Whether the petitioner is not entitled for the compensation in respect of the alleged house, tank and wall existing on the acquired land as alleged? OPP. 3. If issue No.2 is proved in affirmative, to what amount of compensation, the petitioner is entitled? OPP. 4. Whether the court has no jurisdiction to try this case? OPR. 5. OPP. 2. Whether the petitioner is not entitled for the compensation in respect of the alleged house, tank and wall existing on the acquired land as alleged? OPP. 3. If issue No.2 is proved in affirmative, to what amount of compensation, the petitioner is entitled? OPP. 4. Whether the court has no jurisdiction to try this case? OPR. 5. Whether the house was not in existence at the time of issuance of acquisition notice under section 4 of the Act, if so, its effect? OPR. 6. Relief. 5. Since the petitioner failed to produce any evidence to show otherwise that the market value of the acquired land assessed by the Land Acquisition Collector is on lower side, therefore, issue No.1 was decided against him. Issue Nos. 2 to 5 pertain to the alleged construction of house, tank and wall. Learned reference Court below while answering issues No. 2 and 3 against the petitioner, whereas, issue No.5 in favour of the respondents has concluded that the house was constructed well before the issuance of Notification under Section 4 of the Act, is not proved on record. He, therefore, was not held entitled to the compensation as claimed. Issue No.4 was decided as not pressed. As a consequence and recording findings on all the issues, learned reference Court below had initially dismissed the reference vide award dated 1.11.1999. The same was challenged by the petitioner in this Court in RFA No. 34/2000. A Co-ordinate Bench of this Court while taking note of the order passed in FAO No. 343/96 on 4th December, 1997 by a Division Bench of this Court holding therein that prima-facie the disputed house was in existence over the acquired land on the day when the Notification under Section 4 of the Act was issued, has remanded the case to learned reference Court below for re-determination of issue as to whether the claimant had constructed the house and therefore, was entitled to the compensation. 6. On the remand of reference petition, learned reference Court below has decided the same afresh vide award dated 9.5.2008, which is under challenge before this Court on several grounds, however, mainly that the evidence as has come on record has not been appreciated in its right perspective. 6. On the remand of reference petition, learned reference Court below has decided the same afresh vide award dated 9.5.2008, which is under challenge before this Court on several grounds, however, mainly that the evidence as has come on record has not been appreciated in its right perspective. The observations of this Court in the judgment passed in FAO No. 343/96 that the house in question was in existence over the acquired land on the day of its acquisition were also ignored. The judgment and decree Ext. P-A, whereby the petitioner has been declared owner of the land bearing Khasra No. 87 and also the house constructed thereon by way of adverse possession has also erroneously been ignored. 7. Mr. Bhupinder Gupta, learned Senior Advocate assisted by Mrs. Poonam Gehlot, Advocate has argued that cogent and reliable evidence available on record suggesting that the petitioner had constructed the house well before issuance of Notification under Section 4 of the Act is erroneously ignored. The judgment Ext.P-A and the opinion of the Architect PW-2 Rattan Lal regarding age of the house has been misread and misconstrued. The observations of a Division Bench of this Court dated 4.12.1997 passed in FAO No. 343/96 that prima-facie house in question in existence over the acquired land has erroneously been ignored and not taken into consideration also pressed in service. Such an approach, according to Mr. Gupta, has resulted in miscarriage of justice to the petitioner. 8. On the other hand, learned Deputy Advocate General and Mr. K.D. Sood, learned Senior Advocate assisted by Mr. Rajnish K. Lall, Advocate representing the respondents while repelling the contentions raised on behalf of the petitioner have concluded that the suit was instituted in September, 1982. The same was decreed exparte. The petitioner had based his claim qua he being owner in possession of land bearing Khasra No. 87 by way of adverse possession and as the defendants, the true owners, failed to put in appearance despite service, therefore, he obtained the decree, which is not only exparte but collusive also. The same, as such, is stated to be rightly ignored. Otherwise also, the Notification under Section 4 of the Act being issued on 1.10.1992 is after few days of the institution of the suit which was allegedly instituted on 21.09.1992. The Notices Ext. R-1 to Ext. The same, as such, is stated to be rightly ignored. Otherwise also, the Notification under Section 4 of the Act being issued on 1.10.1992 is after few days of the institution of the suit which was allegedly instituted on 21.09.1992. The Notices Ext. R-1 to Ext. R-7 issued to the defendants in the suit, the true owners of the land bearing Khasra No. 87 to stop the construction, according to Mr. Sood, demolishes the entire case of the petitioner. The spot inspection report is dated 11.1.1999, however, nothing is there to suggest that the construction was in existence over the land in question. The judgment and decree Ext.P-A in the suit instituted by the petitioner being not only ex-parte and collusive but also procured one confer no right, title or interest qua the land bearing Khasra No.87, upon the petitioner as he is an encroacher and as such not entitled to seek declaration that he has acquired title in the land/property encroached upon by way of adverse possession in view of the judgment of the Hon’ble Apex Court in Gurdwara Sahib V. Gram Panchayat Village Sirthala, (2014) 1 SCC 669 . 9. On analyzing the rival submissions and also the evidence recorded in the reference Court below as well as the additional evidence on the directions of this Court consequent upon the order dated 24.06.2010 passed in an application under Order 41 Rule 27 of the Code of Civil Procedure (CMP No. 330 of 2010) at the very out set, it would not be improper to conclude that learned reference Court has not committed any illegality or irregularity while arriving at a conclusion that for want of cogent and reliable evidence that the petitioner had constructed the house over the acquired land well before the issuance of Notification under Section 4 of the Act is not at all proved. The judgment dated 4.12.1997 passed by a Division Bench of this Court in FAO No. 343/96 Ext.P-X2 has been heavily relied upon by learned counsel representing the petitioner. The observations in this judgment reads as follows :- “After hearing both sides, we are of the view that there are no merits in the appeal. Prima-facie the view taken by the learned District Judge that prior to the issue of 4(1) notification the house was constructed, appears to be correct. The observations in this judgment reads as follows :- “After hearing both sides, we are of the view that there are no merits in the appeal. Prima-facie the view taken by the learned District Judge that prior to the issue of 4(1) notification the house was constructed, appears to be correct. The conclusion in that behalf was based upon the plaint dated 25.9.1992 in a suit filed by the respondent herein against one Prem Lal in which it was specifically averred that the house in question was constructed. As Section 4(1) notification was subsequent to the filing of the aforesaid suit, we are inclined to agree with the view taken by the learned District Judge that the balance of convenience was in favour of granting interim injunction in favour of the respondent herein. We, therefore, dismiss the appeal with no order as to costs.” 10. It is thus abundantly clear that the satisfaction recorded by this Court qua the existence of the house over the acquired land well before the issuance of Notification under Section 4(1) of the Act was prima-facie. Not only this, but the last para of this judgment clarifies that such observations made therein shall not be taken into consideration while deciding the main case. Therefore, it was left to the trial Court to have applied its mind in the given facts and circumstances and also the evidence available on record to record the findings as to whether the house was in existence over the acquired land well before the issuance of Notification under Section 4 of the Act or not. The judgment Ext. P-X2 is, therefore, hardly of any help to the case of the petitioner. 11. Now if coming to the copy of Khasra Girdawari Ext.P-X1 for the period August, 1987 to April, 1992. Except for April, 1992, there is no entry that over two biswas of land bearing Khasra No. 87, the house was in existence. Interestingly enough, the petitioner has neither been recorded owner nor in possession of the land bearing Khasra No. 87 in this document. Therefore, a stray entry recorded only in April, 1992 cannot be taken as a clinching proof of the construction of the house by the petitioner over the land in question before issuance of Notification under Section 4 of the Act. 12. Therefore, a stray entry recorded only in April, 1992 cannot be taken as a clinching proof of the construction of the house by the petitioner over the land in question before issuance of Notification under Section 4 of the Act. 12. Now if coming to the Civil Suit he filed for declaration that he has acquired title in the suit land by way of adverse possession. He being an encroacher in terms of law laid down by the Hon’ble Apex Court in Gurudwara Sahib’s case cited supra was not legally entitled to seek declaration on the plea of adverse possession. In terms of ratio of this judgment, such a plea can be used as a shield and not as a sword. Therefore, had there been any evidence i.e. entries in the revenue record that he was in possession of the land in question, at the most entitled to the protection of his possession, leaving it open to the true owners i.e. the defendants in the suit to have resorted to the remedy available to them in accordance with law for seeking his eviction therefrom, being a trespasser. In the case in hand, however, he has failed to prove that he was in possession of the suit land. The judgment and decree Ext. P-A, which is not only exparte but appears to be collusive also cannot be believed as gospel truth to arrive at a conclusion that he is owner in possession of the suit land. Since the factum of existence of the house in the plaint remained unrebutted as the defendants opted for not putting appearance and to contest the suit and as during the course of proceedings in the reference petition, the petitioner has failed to produce cogent and reliable evidence suggesting that he is owner of the acquired and also that the house was constructed by him well before its acquisition, learned reference Court below has rightly concluded that he is not entitled to compensation with respect to the house he allegedly constructed. 13. Interestingly enough, the Notification under Section 4 of the Act was issued on 1.10.1992. As noticed supra, the suit in which judgment Ext. P-A has been rendered was instituted on 21.09.1992. Now coming to the own testimony of petitioner, the construction work had commenced on 13.1.1980 and was completed in all respect in 1981. 13. Interestingly enough, the Notification under Section 4 of the Act was issued on 1.10.1992. As noticed supra, the suit in which judgment Ext. P-A has been rendered was instituted on 21.09.1992. Now coming to the own testimony of petitioner, the construction work had commenced on 13.1.1980 and was completed in all respect in 1981. Had it been so, it is not known as to why entries to this effect have not been reflected either in the revenue record till April, 1992 or in the record of the Gram Panchayat, Municipality and any other authorities etc. As per his own version, he did not raise any loan for the construction of house, from where a huge amount of Rs.37,90,000/- spent by him for completion of construction. It is worth mentioning that a man of ordinary prudence would not spend such a huge amount on the construction of a house, that too, on the land of others, well before acquiring title therein. Therefore, it lies ill in the mouth of the petitioner that the construction work had commenced in the year 1980 and was completed in the year 1981. Even if any such construction was in progress, it was during the period 1994-1995, as is apparent from the perusal of notices Ext. R-1 to Ext.R-7, whereby the owners (defendants in the civil suit) were served with legal notice by none-else but the district administration that the land having been acquired, no construction be raised thereon. Reference in this regard can be made to the statement of Urmila Gian Bharti PW-3. The petitioner, as a matter of fact, is a liar and with a view to grab the money, he has laid such a false claim. 14. Now if coming to the tatima Ext. PW-2/A, no doubt, there is mention of house over the land measuring two biswas, which is a part of Khasra No. 87, however, the Kanungo and Patwari, who have prepared the same have not been examined. Who has proved the tatima Ext.PW- 2/A, nothing to this effect has come on record. 15. Now if coming to the spot inspection report dated 11.1.1999. A bare perusal of the same amply demonstrate that there is no mention of so called house, found in existence on the spot nor anything to this effect recorded therein. Who has proved the tatima Ext.PW- 2/A, nothing to this effect has come on record. 15. Now if coming to the spot inspection report dated 11.1.1999. A bare perusal of the same amply demonstrate that there is no mention of so called house, found in existence on the spot nor anything to this effect recorded therein. As a matter of fact, during the spot inspection, no water and sanitary fittings were found in the said house nor were there any electricity fittings. The observations of learned trial Judge at the time of spot inspection that the house was recently constructed and not in the year 1981 as in that event the water and sanitary fittings and also the electricity fittings would have also been there, are correct and in consonance with the circumstances which were prevailing on the spot. 16. In view of the discussion hereinabove, it would not be improper to conclude that the house in question was constructed after the issuance of Notification under Section 4 of the Land Acquisition Act. The construction work continued on the spot was sought to be stopped by way of issuance of notices Ext. R-1 to Ext. R-7. The evidence produced by the petitioner is false, fabricated and engineered. The same rather show that the house in question was constructed after the issuance of Notification under Section 4 of the Act. The petitioner, as such, is not entitled even to a penny to award the compensation for the house in question what to speak of a huge amount i.e. Rs.80,00,000/- as claimed. Learned reference Court below has rightly dismissed the petition. Being so, the judgment under challenge calls for no interference by this Court and the same is rather upheld. 17. For all the reasons stated hereinabove, this appeal fails and the same is accordingly dismissed. Pending applications, if any, shall also stand dismissed.