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2019 DIGILAW 464 (HP)

Bhagwan Dass v. State of H. P.

2019-04-25

TARLOK SINGH CHAUHAN

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JUDGMENT : TARLOK SINGH CHAUHAN, J. 1. Questioning the inadequacy of compensation, the claimants have filed the instant appeal against the award passed by the learned Reference Court. 2. The claimants were owner in possession of the land comprised in Khasra No. 651/410/362, measuring 0-7 bighas and Khasra Nos. 562/410/362, measuring 0-3 bighas, situated in village Khater, Tehsil Sadar, District Bilaspur, H.P. This land was acquired by the respondents for expansion of Cement Factory owned by respondent No. 2 i.e. ACC Ltd. Notification under Section 4 of the Land Acquisition Act (for short ‘Act’) was published on 6.7.1991 and after completion of all other formalities, an award under Section 11 of the Act was passed by the Land Acquisition Collector-cum-Assistant Commissioner to Deputy Commissioner, Bilaspur, H.P. on 1.3.1994 awarding a sum of Rs. 49,083/-. 3. Reference against the inadequacy of the award was filed in the Court of learned District Judge, Bilaspur, who vide his award dated 22.12.2008 dismissed the reference petition, constraining the appellants to file the instant appeal. 4. It is averred that the learned Reference Court failed to take into consideration the relevant evidence, which is on record, more particularly, the sale deed Ext.PW-2/A, award Ext.PB and another sale deed Ext.P-A, which had been duly proved on record. 5. On the other hand, learned Additional Advocate General for the State and Mr. K.D. Sood, learned Senior Counsel, assisted by Ms. Shradha Karol, Advocate, counsel for respondent No. 2, would vehemently argue that since the award passed by the learned Court below is based on correct appreciation of the evidence and there is no perversity in the same, therefore, the appeal warrants no interference by this Court. I have heard learned counsel for the parties and have also gone through the material placed on record. 6. As per the sale deed Ext.P-A, land measuring 2 biswas was sold for Rs. 50,000/- whereas as per Ext.PW-2/A, land measuring 1 biswa was sold for Rs. 35,000/-. Learned counsel for the appellants has argued that the sale deeds which form the basis of the award Ext.PB and Ex.PF, in fact relate to village Kather and in terms thereof the market value is far in excess to the amount awarded by the learned Collector. 7. On the other hand, Mr. 35,000/-. Learned counsel for the appellants has argued that the sale deeds which form the basis of the award Ext.PB and Ex.PF, in fact relate to village Kather and in terms thereof the market value is far in excess to the amount awarded by the learned Collector. 7. On the other hand, Mr. K.D. Sood, learned counsel for respondent No. 2 at this stage would argue that since the vendors and vendees of Ex.PA and Ex.PW-2/A have not appeared in the witness box, therefore, no reliance could have been placed on such sale deeds and have rightly been discarded by the learned Reference Court. As regards the award, it is urged that unless the sale deeds mentioned in such award would have been produced and proved in accordance with law the mere mentioning of these sale deeds in the award which has been placed in some other case cannot form the basis for determination of the compensation. 8. Kanshi Ram, Pradhan of Gram Panchayat, Panjgain and Barmana appeared as PW-1 and deposed about the potentiality of the land and stated that even the value of the land of Khater village was about Rs. 80,000/- - 90,000/- per biswa, but then he has not brought on record any document to prove this fact. 9. One of the claimant Bhagwan Dass, appeared as PW-2 and stated that the value of his land was about Rs. 40,000/- per biswa. He placed on record the copy of sale deed Ex.PW-2/A. In his cross-examination, the witness admitted that for the last five years, no land of village Khater has been sold for Rs. 40,000/- per biswa and whereas certain consent awards have been passed awarding Rs. 40,000/- per bigha. The claimants have tendered in evidence the sale deed Ext.PA dated 27.9.1991 and a copy of award dated 29.9.2007 Ext.PB, respectively. 10. No oral evidence was led by respondent No. 2 and it only tendered a copy of stay orders. 11. The sale deed brought forth by the claimants were kept out of consideration by the learned Reference Court only on the ground that the same did not reflect the market value prevailing in the locality where the land brought under acquisition was also situated. 11. The sale deed brought forth by the claimants were kept out of consideration by the learned Reference Court only on the ground that the same did not reflect the market value prevailing in the locality where the land brought under acquisition was also situated. It was further held that since it was not the proof of the fact that the sale consideration as reflected in the sale deed Ex.PA has passed from the vendor to the vendee, therefore, no reliance could be placed on such sale deeds. 12. Section 51-A of the Land Acquisition Act, reads thus: "51A. Acceptance of certified copy as evidence - In any proceeding under this Act, a certified copy of a document registered under the Registration Act, 1908 (16 of 1908), including a copy given under section 57 of that Act, may be accepted as evidence of the transaction recorded in such document." 13. The scope and evidentiary value of a document produced under Section 51-A, was considered by a Constitution Bench of the Hon'ble Supreme Court in Cement Corporation of India Ltd. vs. Purya and Others, (2004) 8 SCC 270 and it was held that this provision not only permits the production of a certified copy of the registered sale transaction in evidence, but permits the acceptance of such transaction without examination of the vendor or vendee. However, by using the word "may" the provision confers a discretion on the Court in that regard, which has to be exercised judicially i.e. upon taking into consideration the relevant factors. 14. It has further held that the presumption of genuineness of such a document was rebuttable. Hence, the Court can rely on such presumption only if the same is not rebutted by any other evidence. Thus, it would be seen that Section 51-A of the Act, seeks to make an exception to prove a document through primary or secondary evidence stating that in the acquisition proceedings, sale deeds are required to be brought on record for the purpose of determining the market value payable to the owner of the land when it is sought to be acquired. A registered document in terms of Section 51-A of the Act, may carry therewith a presumption of genuineness. Such a presumption, therefore, is rebuttable. Raising a presumption, therefore, does not amount to proof; it only shifts the burden of proof against whom the presumption operates for disproving it. A registered document in terms of Section 51-A of the Act, may carry therewith a presumption of genuineness. Such a presumption, therefore, is rebuttable. Raising a presumption, therefore, does not amount to proof; it only shifts the burden of proof against whom the presumption operates for disproving it. Only if the presumption is not rebutted by discharging the burden, the Court may act on the basis of such presumption. 15. Admittedly, in the instant case, the respondents have led no evidence to rebut this evidence. Therefore, the sale deeds have to be taken into consideration, more particularly, when they relate to the same village. 16. As per sale deed Ex.PA, the land measuring 2 biswa was sold for Rs. 50,000/- whereas as per Ex.PW-2/A, the land measuring 1 biswa was sold for Rs. 35,000/-. The only objection as raised by the respondents is that the sale instances relied upon by the appellants is of small area and, therefore, these cannot be taken into consideration. 17. The objection is devoid of any merit. It is to be noticed that the area of acquired land itself is very small i.e. only 10 biswas, therefore, though sale instances are comparatively of still smaller area i.e. 1-2 biswas, yet they cannot be said to be very small in comparison to the acquired land. The sale instances Ex.PA pertained to the year 1991 i.e. on 27.9.1991, whereas the notification under Section 4 of the Act was published on 6.7.1991 and is relevant being proximate to the date of notification. The only disadvantage apparently is that in comparison to the area of acquired land, these are of smaller area, but then the sale instances cannot altogether be ignored merely because these are of smaller area which otherwise are not only proximate in time but also relevant being situated in the same village. 18. In the above circumstances, the question arises that how for the above sale instances which otherwise are relevant being proximate to the notification under Section 4 of the Act in respect of the similar nature of the land situated in the same village, can be used for determining the price when these are otherwise in respect of smaller piece of land in comparison to the acquired land. 19. 19. In Ravinder Narain and Another vs. Union of India, (2003) 4 SCC 481 , it was held by the Hon'ble Supreme Court that it cannot however be laid down an absolute proposition that rate fixed for smaller plots cannot be the basis for fixation of rate for larger area. For example, when there is no other material, it may in proper case be open to the adjudicating Court to make comparison of the prices paid for small plots of land. However, in such case, necessary deductions/adjustments have to be made while determining the prices. 20. As observed above, the acquired land itself is a very small land measuring only 10 biswas and the sale exemplar pertain to land measuring 1 and 2 biswas, respectively. Whereas the land in one of the sale exemplar i.e. Ex.PA, 2 biswa of land was sold for Rs. 50,000/- whereas as per sale exemplar Ex.PW-2/A, 1 biswa of land was sold for Rs. 35,000/-. 21. As stated above, the respondents have led no evidence. As per Ex. PA, the value of the acquired land of 2 biswa is Rs. 50,000/- whereas as per Ex.PW-2/A, the value of the acquired land of 1 biswa is Rs. 35,000/- per biswa. 22. Taking into consideration that the land is relatively small as compared to the acquired land, I feel that the value of the land in no case is less than Rs. 10,000/- per biswa. 23. The claimants can take no advantage of the sale deeds referred to in the award Ex.PB as these sale deeds have not been placed or proved on record. 24. In view of the aforesaid discussion, I find merit in this appeal and the same is allowed and a sum of Rs. 10,000/- per biswa is awarded in favour of the appellants as against the award of Rs. 49,083/- for 10 biswas passed by the learned Land Acquisition Collector, which otherwise has been awarded to other claimants at flat rate of Rs. 10,000/- per biswa vide Ex.PB. Besides this, the claimants would also be entitled to all other statutory benefits. 25. The appeal is disposed of in the aforesaid terms, so also the pending applications if any, leaving the parties to bear their own costs.