Madhya Pradesh High Court
Sunder Bai vs The State Of M.P. on 12 January, 2017
Author: P.K. Jaiswal
Bench: Virender Singh, P.K. Jaiswal
1
FA No.354/1999
First Appeal No.354/1999
12.01.2017
Shri Lokesh Arya, learned counsel for appellants.
Shri Peyush Jain, learned Deputy Government
Advocate for the respondent / State of MP.
Final arguments heard.
Judgment passed in open Court, typed separately
signed and dated.
(P.K. Jaiswal) (Virender Singh)
Judge Judge
rcp
2
FA No.354/1999
HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE
D.B.: Hon'ble Shri P.K. Jaiswal
Hon'ble Shri Virender Singh, JJ.
First Appeal No.354/1999
Kailashchandra s/o Hajarilal Somani Mahajan
& four others
Versus
The State of Madhya Pradesh & two others
*****
Shri Lokesh Arya, learned counsel for the appellants.
Shri Peyush Jain, learned Deputy Government Advocate for
the respondent / State.
*****
JUDGMENT
(Pronounced on this 12th day of January, 2017) Per P.K. Jaiswal, J.
This first appeal under Section 54 of the Land Acquisition Act, 1894 (herein after referred to as the Act) has been filed by the appellants / landowners against order dated 15.07.1999 passed by the learned District Judge, Dhar in Land Acquisition Case No.23/1999, whereby the learned Reference Court has allowed the application filed by the landowners under Section 18 of the Act and awarded compensation to the appellants / landowners in respect of the land at the rate of Rs.55,000/- per hectare along with statutory interest and solatium.
2. Brief facts of the case are that an area of 13.220 hectare of land in Village Sulawad, District Dhar was acquired by the State Government for 3 FA No.354/1999 industrial purpose along with land of four other villages. A notification under Section 4 (1) of the Act was published on 21.09.1984 to acquire the land in question and notification under Section 6 of the Act was issued on 19.10.1984. Possession of the land was taken on 07.12.1984. After acquisition of the land, the Land Acquisition Officer assessed the compensation and awarded compensation at the rate of Rs.46,000/- per hectare on 15.05.1986.
3. Learned counsel for the appellants has submitted that out of total five villages, in respect of village Mandlawada, the landowners challenged the Reference Court Award dated 30.04.1990 passed by the 3rd Additional District Judge, Dhar in Civil Miscellaneous Case No.07/1987 in First Appeal No.100/1990. A Division Bench of this Court by order dated 01.05.1998 assessed the compensation at the rate of Rs.1,21,600/- per hectare for un-irrigated land of village Mandlawada. The Division Bench also held that in addition, the appellants therein are entitled to the compensation in terms of Section 23 of the Act and interest in view of Section 28 of the Act, on enhanced amount of compensation. He prayed for award of compensation on the same fate. The decision dated 01.05.1998 in First Appeal No.100/1990 reads, as under: -
4 FA No.354/1999"The appellant / claimants have directed this appeal against the award dated 30th April, 1990 rendered by III Additional District Judge, Dhar in Civil Miscellaneous Case No.7/1987, thereby awarding compensation for the agricultural lands held by the appellants situated in village Mandlawada at the rate of Rs.1,27,000/- per hectare together with additional compensation at the rate of 12% and 30% as contemplated under Section 23 of the Land Acquisition Act (for short, 'the Act') and the interest, as stated in Section 28 of the Act.
2. Briefly stated, the facts of the case are that agricultural lands bearing survey numbers 208, 236, 238, 269 and 286 total area 15,638 hectares of the appellants, situated in village Mandlawada, has been acquired by the Government for the establishment of industries for public purpose. The notification for acquisition of the lands, under Section 4 of the Act, was published in the Madhya Pradesh Gazette dated 21.09.1984 and the notification under Section 6 of the Act was published in the official gazette on 19.10.1984, thereafter the said lands were taken into possession by the Tahsildar on 16.11.1984. The land Acquisition Officer, Dhar, awarded compensation assessing the market price of the un-irrigated lands at the rate of Rs.46,000/- per hectare and Rs.57,500/- per hectare for the irrigated lands. The land Acquisition Officer also awarded 12% additional compensation under Section 23 (1A) of the Act and further compensation at the rate of 30% as solatium under Section 23 (2) of the Act. The Land Acquisition Officer also awarded Rs.56,221/- for the well situated in the lands and Rs.79,000/- for the loss of trees and crops standing on the aforesaid lands and awarded total compensation of Rs.13,31,504/- in favour of the appellants. On reference under Section 18 of the Act, the Reference Court enhanced market price of the acquired land and passed award in favour of the appellants assessing the market price of the acquired lands considering the 5 FA No.354/1999 whole lands as irrigated lands at the rate of Rs.1,27,000/- per hectare and also awarded interest under Section 28 of the Act. Aggrieved, the appellants filed this appeal for the enhancement of the compensation as awarded by the Reference Court.
3. The respondent / State also filed cross- objection under Order XXXXI Rule 22 of the Code of Civil Procedure for reduction in the compensation amount as awarded by the Reference Court.
4. The counsel appearing for the appellants contended that Reference Court has committed an error in deducting 33 ½ percent from the assessed market price of the acquired lands. He also submitted that Reference Court while assessing the market price of the land added only 25% of the price of the un-irrigated land. He contended that the Reference Court should have assessed the market price of the irrigated lands doubled to that of the market price assessed for un-irrigated land.
The other contention of the counsel for the appellant is that at the time of taking possession, various crops were standing on the acquired lands and that the learned Reference Court awarded only 79,000/- rupees against expenses incurred on sowing the crops and trees and did not award any compensation for the loss of crops which were ripe for harvesting.
5. As against this, the counsel for the State submitted that market price of the un-irrigated and irrigated lands assessed by the Reference Court is on higher side and prayed for appropriate reduction in the market price of the lands in question.
6. We have considered rival submissions of the counsel appearing for the parties. Perused the record, the impugned award as also the evidence available in the case.
7. On perusal of the record, it is found that learned Reference Court, taking into 6 FA No.354/1999 consideration sale-deeds filed by the appellants with regard to the lands situated in village Mandlawada, which were sold near-about the publication of the notification under Section 4 of the Act, has assessed market price of the un- irrigated lands. Learned Reference Court for assessing the market price of the un-irrigated land has specifically taken into consideration the sale-deed dated 03.09.1984 (Ex.P/4). It is the sale-deed executed just before 18 days of the publication of notification under Section 4 of the Act. Learned Reference Court, on the basis of the evidence led on behalf of the appellants, assessed market price of the un-irrigated lands of village Mandlawada at the time of issuance of notification under Section 4 of the Act, at Rs.1,52,000/- per hectare and assessed market price of the irrigated lands giving rise of 25% assessing the price for the irrigated lands at Rs.1,92,000/- per hectare. The Reference Court deducted 33 ½ percent from the price of the irrigated lands so assessed on the ground that the sale deed Ex.P/4 purported to be the sale- deed for a small plot ad-measuring only 0.121 hectare.
8. The procedure adopted by the Reference Court in assessing the market price of the irrigated lands of village Mandlawada is not proper. The Reference Court should have assessed first the market price of the un- irrigated lands on the basis of the evidence available on record and thereafter should have assessed market price of the irrigated lands. So far as the finding of the Reference Court for the assessment of the market price of the un- irrigated lands at Rs.1,52,000/- on the basis of the evidence available, is well founded and based on proper appreciation of the evidence on record. The market price so assessed is for the small plot of only 0.121 hectare. The law is well settled on the point that market price of the big plot is lesser is lesser in comparison to the market price of the small plots. Taking into consideration, the aforesaid facts the market 7 FA No.354/1999 price of the un-irrigated lands having larger area may be assessed after deducting 20% in the market price of the lands assessed for the smaller plots. In view of the above, the market price of the un-irrigated lands having larger dimension comes to Rs.1,21,600/- per hectare.
9. For assessing the market price of the irrigated lands, in our opinion, 50% rise to that of the un-irrigated lands can be allowed. In number of cases decided by this Court and also the Apex Court, 50% rise is allowed for assessing the market price of the irrigated lands on the basis of the market price assessed for the un- irrigated lands. As such the market price of the acquired lands considering them to be irrigated lands, shall be assessed at Rs.1,82,500/- per hectare and in this respect, the award of the Reference Court deserves modification.
10. The other contention of the counsel appearing for the appellants is that at the time of taking possession, crops were standing on the acquired lands and would have been ready for harvesting in near future. As such, Reference Court should have awarded compensation for the loss of the crops. On perusal of the record, it is found that notification under Section 4 of the Act was published on 21.09.1984 that clearly indicates that crops sown on the disputed lands were standing at the time of taking possession of the acquired lands on 16.11.1984. From the evidence on record, it emerged that crops standing on the acquired lands at the time of taking possession, were not ripe and ready for harvesting, therefore, the appellants are not entitled to any compensation for the loss of harvested crops. However, taking into consideration that after sowing crops on the acquired lands the appellants must have invested some amount for the maintenance and looking after standing crops, are entitled to appropriate compensation on the said ground. We, therefore, allow compensation of Rs.11,000/- on the aforesaid ground and allow total compensation for the cost of sowing and 8 FA No.354/1999 maintenance of the crops and also for the trees standing on the acquired lands at Rs.80,000/-.
11. In the result, we enhance and assess market price of the acquired lands at the rate of Rs.1,82,500/- per hectare and also enhance the compensation from 69,000/- rupees to Rs.80,000/- for the loss of trees and crops standing on the acquired lands at the time of taking possession. The award of the Reference Court with regard to compensation for the well situated in the acquired lands and rise in the amount of compensation under Section 23 of the Act and interest under Section 28 of the Act, require no interference in this appeal and this part of the award is accordingly upheld.
12. Consequently, this appeal is partly allowed and the impugned award is modified and the compensation is enhanced only to the extent indicated above. The appellants are in addition entitled to the compensation in terms of Section 23 of the Act and the interest in view of the Section 28 of the Act, on enhanced amount of compensation. The cross objection filed by the respondent / State is devoid of merits and substance and the same is, accordingly, dismissed. The LAO / Reference Court is directed to calculate and reassess the compensation payable to the appellants in the terms indicated above.
13. In view of the facts and circumstances of the case, parties are left to bear their own costs of this appeal as also the cross objection. Counsel' fee is fixed as per scheduled, if certified. Decree be drawn up accordingly."
4. On due consideration of the aforesaid, we are inclined to modify the award dated 15.07.1999 of the learned Reference Court and allow the first appeal in part and assess the compensation at the rate of 9 FA No.354/1999 Rs.1,21,600/- per hectare for un-irrigated land of the present appellants. Apart from the aforesaid compensation, the appellants are entitled to the compensation in terms of Section 23 of the Act and interest in view of Section 28 of the Act, on enhanced amount of compensation.
5. For these reasons, First Appeal No.354/1999 is allowed in part to the extent, as indicated herein above with costs. Counsel fee' is fixed as per the Schedule, if certified.
Decree be drawn up accordingly.
(P.K. Jaiswal) (Virender Singh)
Judge Judge
Pithawe RC