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2018 DIGILAW 455 (JHR)

Krishna Gope Tiwari v. State of Bihar (Jharkhand)

2018-02-21

ANIL KUMAR CHOUDHARY

body2018
JUDGMENT : 1. Heard the parties. 2. This appeal has been preferred by the petitioners-appellants against the Order and Award dated 28.1.2004 passed by the Subordinate Judge-I, Palamau at Daltonganj in Land Acquisition Case No. 81/1985, rejecting the application of the appellants for enhancement of the compensation amount awarded. 3. The brief facts of the case are that an area of 2.34 acres of land under Khata No. 209, Plot No. 9E, belonging to the appellants, has been acquired by the State of Bihar under the provisions of the Land Acquisition Act, 1894 (hereinafter referred to as the 'Act') in Village Baralota, PS Daltonganj, Distt. Palamau. The acquisition of the land of the appellants was made on 16.12.1982 and the compensation of Rs. 51,131.48 was awarded which the appellants have received on protest. At the instance of the awardee, reference under Section 18 of the Act was made and the Land Acquisition Case No. 81/1985 was registered before the Sub-judge-I, Palamau at Daltonganj 4. On behalf of the Petitioners-Appellants five witnesses have been examined. Besides the Petitioners-Appellants have also adduced the following documentary evidence- rent receipts, marked as Ext.1, 1/A and 1/B; certified copy of the registered sale-deed No. 10034 dated 16.2.1982, marked as Ext.2; certified copy of the order of LA No. 4/84-85, marked as Ext.3; the statement regarding sale, wherein the Collector has obtained the sale figures of 156 transfers of land of the locality, marked as Ext.4. One witness was examined on behalf of the respondent-opposite party. 5. The learned Subordinate Judge-I, Palamau at Daltonganj after considering the materials and evidence available in the record rejected the application of the appellants for enhancement of the compensation amount awarded as according to the Sub Judge-I, compensation, paid to the appellants, was sufficient hence there was no requirement for enhancing the same. 6. It is submitted by the learned counsel for the appellants that the learned Sub Judge-I while passing the impugned order and award did not consider the sale deed (Ext.2) even though the same is in respect of similar type of land which was acquired by the Land Acquisition Department. It is further submitted that the learned Sub Judge-I has also not taken into consideration the fact that the entry Sl. Nos. It is further submitted that the learned Sub Judge-I has also not taken into consideration the fact that the entry Sl. Nos. 6, 46, 47, 72 and 128 of exhibit -4 contains the sale figures as mentioned in the transfers of the land of the locality collected by the Collector where the consideration amount of sale when calculated comes out to Rs.1,33,333/- per acre, entry Sl. No. 112 of exhibit -4 contain the sale figure of the land of the locality collected by the Collector where the consideration amount of sale when calculated comes out to Rs.1,35,593/- per acre, entry Sl. Nos. 103 and 104 of exhibit -4 contains the sale figures as mentioned in the transfers of the land of the locality collected by the Collector where the consideration amount of sale when calculated comes out to Rs.1,60 ,000/- per acre, entry Sl. Nos. 102, 150, 154, 155 and 156 of exhibit -4 contains the sale figures as mentioned in the transfers of the land of the locality collected by the Collector where the consideration amount of sale when calculated comes out to Rs.1,20,000/- per acre and entry Sl. Nos. 95 and 112 of exhibit -4 contains the sale figures as mentioned in the transfers of the land of the locality collected by the Collector where the consideration amount of sale when calculated comes out to Rs.1,09,091 /- per acre. 7. Learned counsel for the appellants relied upon the judgment of this Court passed in F.A. No. 150 of 1992R and analogous cases {The Deputy Commissioner, Hazaribagh Vs. Jagdish Mahto and others} decided on 18.12.2003 wherein this Court after discussing the principle for ascertaining the compensation to be paid in the facts and circumstances of those cases fixed the compensation at the highest value of the land at which the sale figures as mentioned in the transfers of the land of the locality collected by the Collector. 8. Learned counsel has further relied upon the Full Bench decision of the Punjab & Haryana High Court in the case of State of Punjab v. Pohu and another, {AIR 1986 Punjab & Haryana 143), wherein it has been held that where the sale deeds pertaining to different transactions were relied on behalf of Government, the transfer deed representing the highest value should be preferred to the rests, unless there was a strong circumstance justifying the different course. 9. 9. Learned counsel also relied upon the judgment of Hon’ble Supreme Court of India in the case of Chimanlal Hargovinddas v. Special Land Acquisition, Poona and another (1988 AIR SC 1652), wherein the Hon’ble Court has held as under :- “3. Before tackling the problem of valuation of the land under acquisition it is necessary to make some general observations. The compulsion to do so has arisen as the trial court has virtually treated the award rendered by the Land Acquisition Officer as a judgment under appeal and has evinced unawareness of the methodology for valuation to same extent. The true position therefore requires to be capsulized. 4. The following factors must be etched on the mental screen: (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 sit 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. (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. (5) The market value of land under acquisition has to be determined as on the crucial date of publication of the notification under Section 4 of the Land Acquisition Act (dates of notifications under Sections 6 and 9 are irrelevant). (6) The determination has to be made standing on the date line of valuation (date of publication of notification under sec. 4) as if the valuer is a hypothetical purchaser willing to purchase land from the open market and is prepared to pay a reasonable price as on that day. It has also to be assumed that the vendor is willing to sell the land at a reasonable price. (7) In doing so by the instances method, the court has to correlate the market value reflected in the most comparable instance which provides the index of market value. (8) Only genuine instances have to be taken into account. (Sometimes instances are rigged up in anticipation of acquisition of land). (9) Even post notification instances can be taken into account (1) if they are very proximate, (2) genuine and (3) the acquisition itself has not motivated the purchaser to pay a higher price on account of the resultant improvement in development prospects. (10) The most comparable instances out of the genuine instances have to be identified on the following considerations: (i) proximity from time angle, (ii) proximity from situation angle. (11) Having identified the instances which provide the index of market value the price reflected therein may be taken as the norm and the market value of the land under acquisition may be deduced by making suitable adjustments for the plus and minus factors vis-a-vis land under acquisition by placing the two in juxtaposition. (12) A balance-sheet of plus and minus factors may be drawn for this purpose and the relevant factors may be evaluated in terms of price variation as a prudent purchaser would do. (12) A balance-sheet of plus and minus factors may be drawn for this purpose and the relevant factors may be evaluated in terms of price variation as a prudent purchaser would do. (13) The market value of the land under acquisition has thereafter to be deduced by loading the price reflected in the instance taken as norm for plus factors and unloading it for minus factors. (14) The exercise indicated in clauses (11) to (13) has to be undertaken in a common sense manner as a prudent man of the world of business would do. We may illustrate some such illustrative (not exhaustive) factors: Plus factors Minus factors 1. smallness of size 1. largeness of area 2. proximity to a road. 2. situation in the interior at a distance from the Road 3. frontage on a road. 3. narrow strip of land with very small frontage compared to depth. 4. nearness to developed area. 4. lower level requiring the depressed portion to be filled up. 5. regular shape. 5. remoteness from developed locality 6. level vis-a-vis land under acquisition. 6. some special disadvantageous factor which would deter a purchaser 7. special value for an owner of an adjoining property to whom it may have some very special advantage (15) The evaluation of these factors of course depends on the facts of each case. There cannot be any hard and fast or rigid rule. Common sense is the best and most reliable guide. For instance, take the factor regarding the size. A building plot of land say 500 to 1000 sq. yds. cannot be compared with a large tract or block of land of say 10,000 sq. yds. or more. Firstly while a smaller plot is within the reach of many, a large block of land will have to be developed by preparing a lay out, carving out roads, leaving open space, plotting out smaller plots, waiting for purchasers (meanwhile the invested money will be blocked up) and the hazards of an entrepreneur. The factor can be discounted by making a deduction by way of an allowance at an appropriate rate ranging approximately between 20 per cent to 50 per cent to account for land required to be set apart for carving out lands and plotting out small plots. The factor can be discounted by making a deduction by way of an allowance at an appropriate rate ranging approximately between 20 per cent to 50 per cent to account for land required to be set apart for carving out lands and plotting out small plots. The discounting will to some extent also depend on whether it is a rural area or urban area, whether building activity is picking up, and whether waiting period during which the capital of the entrepreneur would be locked up, will be longer or shorter and the attendant hazards.” 10. Learned counsel for the appellant also drew attention of the court to the decision of Hon’ble Supreme Court of India in the case of Union of India & Anr. Vs. Raghubir Singh (Dead) By Lrs. Etc. (1989 AIR SC 1933), wherein the Hon’ble Court has settled the principle that the solatium at 30% of the market value will be applicable for the acquisition which have taken place after 30th April, 1982 to 24th September, 1984. 11. Learned counsel for the respondent, on the other hand, submits that there are other lands mentioned in exhibit- 4, value of which is much less than of Rs.1,09,091/- per acre and the market value of the acquired lands is much less than of Rs.1,09,091 /- per acre. It is further submitted that the area of lands at entry Sl. Nos. 6, 46, 47, 72, 95, 102, 103, 104,111, 112, 128, 150, 154, 155 and 156 of exhibit -4 being much less than the acquired land the value of the lands at entry Sl. Nos. 6, 46, 47, 72, 95, 102, 103, 104,111, 112, 128, 150, 154, 155 and 156 of exhibit -4 which varies from Rs.1,60,000/- to Rs. 1,09,091/- per acre ought not to be considered for determination of the market value of the acquired big chunk of land of 2.34 acres. Further, it is submitted by the learned counsel for the respondent that P.W.1 in his deposition has stated that similar land has been sold for Rs.1,08,000/- per acre and hence the appellants are not entitled for any compensation more than the same. 12. Perusal of Ext.4, reveals that in entry Sl. Nos. Further, it is submitted by the learned counsel for the respondent that P.W.1 in his deposition has stated that similar land has been sold for Rs.1,08,000/- per acre and hence the appellants are not entitled for any compensation more than the same. 12. Perusal of Ext.4, reveals that in entry Sl. Nos. 103 and 104 of exhibit -4 the sale figures as mentioned in the transfers of the land of the locality collected by the Collector where the consideration amount of sale when calculated comes out to Rs.1,60 ,000/- per acre, entry Sl. No. 112 of exhibit -4 contain the sale figure of the land of the locality collected by the Collector where the consideration amount of sale when calculated comes out to Rs.1,35,593/- per acre, entry Sl. Nos. 6, 46, 47, 72 and 128 of exhibit -4 contains the sale figures as mentioned in the transfers of the land of the locality collected by the Collector where the consideration amount of sale when calculated comes out to Rs.1,33,333/- per acre, entry Sl. Nos. 102, 150, 154, 155 and 156 of exhibit -4 contains the sale figures as mentioned in the transfers of the land of the locality collected by the Collector where the consideration amount of sale when calculated comes out to Rs.1,20,000/- per acre and entry Sl. Nos. 95 and 112 of exhibit -4 contains the sale figures as mentioned in the transfers of the land of the locality collected by the Collector where the consideration amount of sale when calculated comes out to Rs.1,09,091 /- per acre. In the certified copy of the registered sale-deed, marked as Ext.2, the consideration amount of sale for an area 0.3¾ decimal has been mentioned as Rs.5000/- which on calculation per acre comes out to Rs.1,33,333/-. 13. The witnesses examined on behalf of the petitioner-appellants deposed to the effect that near the acquired land, T.V. Tower, Agricultural Market Committee, Bypass road and one Goshala is there. The acquired land is in thickly populated area and the value of the said land has been appreciating day by day. 13. The witnesses examined on behalf of the petitioner-appellants deposed to the effect that near the acquired land, T.V. Tower, Agricultural Market Committee, Bypass road and one Goshala is there. The acquired land is in thickly populated area and the value of the said land has been appreciating day by day. The sole witness, examined on behalf of the opposite party-respondent, has also supported the stand of the Awardee and deposed that the land, which has been acquired, is under the town planning of Daltonganj and the Agricultural Market Committee and T.V. Tower near the acquired land also exists and the population in the locality is going up. 14. For the purpose of ascertaining compensation to be paid, various factors including the location, importance prospect and purpose of the land have to be considered and special value be attached to the special advantage possessed by the land, namely, its proximity to developed urbanized area. The value of the potentiality has to be determined on such materials as are available and without indulgence in fits of imagination. These principle has been laid down in the case of Chimanlal Hargovinddas (supra) and The Deputy Commissioner, Hazaribagh Vs. Jagdish Mahto and others(supra). 15. In the present case, near the acquired land, T.V. Tower, Agricultural Market Committee, Bypass road and one Goshala is there. The acquired land is in a thickly populated area and the value of the said land is going up day by day which is admitted even by the O.P.W.1 the sole witness examined on behalf of the opposite party-respondent. 14. Though certain lands have been sold at the rate of Rs.1,60,000/- to Rs. 1,09,091/- per acre but there is also evidence on behalf of the petitioners-appellants themselves that the similar land was sold at Rs. 1,08,000/- per acre. Hence keeping in view the aforesaid facts and law as discussed above the market value of the land acquired, is assessed at Rs.1,08,000/- per acre i.e. Rs. 1080/- per decimal. Accordingly the impugned order and award is modified to the extent indicated above. Besides the solatium @ 30% granted under the Act by the learned court below, the petitioners-appellants are also entitled to the payment of additional compensation as well as interest under the Act. 16. With the aforesaid modification in the impugned order and award, this appeal is disposed of. There shall be no order as to costs.