Rajasthan High Court - Jodhpur
Union Of India vs Parash Ram & Ors on 27 April, 2013
Author: Arun Bhansali
Bench: Arun Bhansali
1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
:JUDGMENT:
(1) S.B. CIVIL MISC. APPEAL NO.1552/2004
Union of India
Vs.
LRs of Smt. Ratan Kaur
(2) S.B. CIVIL MISC. APPEAL NO.1550/2004
Union of India
Vs.
Ram Niwas
(3) S.B. CIVIL MISC. APPEAL NO.1551/2004
Union of India
Vs.
Madan Lal
(4) S.B. CIVIL MISC. APPEAL NO.1543/2004
Union of India
Vs.
Smt. Urmila & Anr.
(5) S.B. CIVIL MISC. APPEAL NO.1554/2004
Union of India
Vs.
Chandra Joytasna
(6) S.B. CIVIL MISC. APPEAL NO.1549/2004
Union of India
Vs.
Padma
(7) S.B. CIVIL MISC. APPEAL NO.1547/2004
Union of India
Vs.
Smt. Sumitra & Ors.
(8) S.B. CIVIL MISC. APPEAL NO.1545/2004
Union of India
Vs.
Parash Ram & Ors.
(9) S.B. CIVIL MISC. APPEAL NO.1546/2004
Union of India
Vs.
Dinesh
(10) S.B. CIVIL MISC. APPEAL NO.1553/2004
Union of India
Vs.
Shyam Lal
2
(11) S.B. CIVIL MISC. APPEAL NO.1555/2004
Union of India
Vs.
Gordhan & Anr.
Date of Judgment 27th April, 2013
PRESENT
HON'BLE MR. JUSTICE ARUN BHANSALI
Mr.Falgun Buch }
Mr.Dinesh Godara}
Mr.V.K. Mathur }, for the appellant.
Mr.S.L. Sinwaria, for the respondents.
----
BY THE COURT:
These appeals have been filed by the Union of India ('the U.O.I.') under Section 54 of the Land Acquisition Act, 1894 ('the Act') aggrieved by judgment dated 22.12.2003 passed by the Additional District Judge No.2, Jodhpur; whereby, the references made to it under Section 18 of the Act were accepted and the compensation for land acquired was enhanced from Rs.10,000/- per bigha as awarded by the Land Acquisition Officer ('the L.A.O.') to Rs.12,000/- per bigha.
As the award dated 13.12.1990 by the L.A.O. and the judgment dated 22.12.2003 on reference, by the Additional District Judge, No.2, Jodhpur are common and appeals raise common questions of law and facts, the same are being decided by this common judgment.
The facts in brief are that the U.O.I. through Defence Estate Officer acquired land for defence purposes ad measuring 1716.22 acre comprised in various villages including about 976 bigha 12 biswa land situated in village Desuria Kharolan. 3 Notification dated 17.08.1988 under Section 4 of the Act was issued by the Home Department, Government of Rajasthan and the same was published in the newspapers on 18.11.1988. Urgency clause was invoked and Notification under Section 6 read with Section 17 of the Act dated 15.12.1988 was issued and published in newspapers on 01.01.1989. Notices were issued under Section 9 to the land owners and the L.A.O. after undertaking the procedure as provided in the Act passed the award on 13.12.1990.
The L.A.O. called for the District Level Committee ('the DLC') rates from the Sub Registrar, Jodhpur, who indicated the rate of Rs.11,600/- per bigha based on sale effected on 19.05.1988. The L.A.O. came to the conclusion that large scale acquisition by the Defence is being undertaken, which would result in reduction in means of maintenance for the agriculturists and they would be permanently affected, several land owners would be rendered landless and, therefore, keeping in view the DLC rates sent by the Sub Registrar, Jodhpur for village Desuria Kharolan and as the land was part of Jodhpur Master Plan, he determined the market value at Rs.10,000/- per bigha.
Aggrieved by the award dated 13.12.1990, the land owners sought reference under Section 18 of the Act, which was referred to the Additional District Judge No.2, Jodhpur.
Before the reference Court the land owners-claimants sought compensation @ Rs.30,000/- per bigha and also sought enhancement of compensation for the cost of trees etc. In all 4 13 references were made, whereby, except for change in area of land acquired from them, the basis for enhancement was same and all of them sought compensation @ Rs.30,000/- per bigha.
All the 13 references were consolidated and a reply to the claim applications was filed by the U.O.I. and the claim for enhanced compensation was disputed. It was submitted that the award passed by the L.A.O. was just, proper and adequate and the same did not require any interference.
On behalf of the claimants, evidence of PW-1 Gordhan Ram was recorded and on behalf of the U.O.I. evidence of Altaf Hussain DW-1 was recorded. The claimants exhibited several documents while on behalf of the U.O.I. six documents were exhibited.
After hearing the parties, the Additional District Judge No.2, Jodhpur vide impugned judgment dated 22.12.2003 rejected the contention of the claimants that they were entitled to a minimum compensation of Rs.19,360/- per bigha as the said amount was paid to the State Government for acquiring government land situated in the same area. However, the Additional District Judge No.2, Jodhpur came to the conclusion that vide Exhibit-5 the Sub Registrar, Jodhpur indicated the DLC rate at Rs.11,600/- per bigha and vide Exhibit-1 sale deed, which was dated 19.05.1988 i.e. four and a half months before the Notification under Section 4 of the Act, the rate comes to Rs.11,023/- per bigha and, therefore, Rs.11,023/- is a minimum rate and Rs.11,600/- is the maximum rate and as at the time of 5 purchase/sale stamp duty, registration charges, tying charges, Advocate fees etc. are required to be paid, it would be reasonable to award compensation @ Rs.12,000/- per bigha. The claim relating to the enhanced compensation for trees was rejected and it was directed that the claimants were entitled for compensation @ Rs.12,000/- per bigha and solatium , interest etc. in accordance with law.
It was contended by learned counsel for the appellant that the judgment passed by the reference Court is ex facie based on conjectures and surmises and the same deserves to be quashed and set aside. It was submitted that while dealing with a reference under Section 18 of the Act, the reference Court is required to determine the compensation based on evidence available on record and it is not open for the reference Court to indulge in speculation and merely because a reference has been made, it is not necessary that even in absence of any evidence, the amount awarded has to be enhanced. It was submitted that there is no material available on record for enhancement as claimed by the claimants and consequently the impugned judgment deserves to be quashed and set aside.
Reliance was placed on the judgments of Hon'ble Supreme Court in Viluben Jhalejar Contractor (Dead) by LRs. v. State of Gujarat : (2005) 4 SCC 789, Dy. Collector, Land Acquisition, Gujarat & Anr. v. Madhubai Gobarbhai & Anr. : (2009) 15 SCC
125. On the other hand, learned counsel for the respondent- 6 claimants supported the impugned judgment and submitted that the reference Court has taken a balanced approach and has awarded reasonable compensation and, therefore, the same does not require any interference from this Court.
I have considered the rival submissions made at the Bar. The jurisdiction under Section 18 of the reference Court and the parameters, within which, it is expected to deal with the reference has been laid down by the Hon'ble Supreme Court in Chimanlal Hargovinddas v. Special Land Acquisition Officer, Poona & Anr. : AIR 1988 SC 1652, wherein, the Hon'ble Supreme Court laid down as under:-
"4.(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 suit 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."
The claimants led the evidence in support of their claim and examined one Gordhan Ram, who exhibited a sale deed dated 19.05.1988 by Budha Ram to Bhikha Ram, whereby, land 7 ad measuring 3 bigha 3.5 biswa was transferred for a sum of Rs.35,000/-. Besides the said sale deed, it was stated that the land was part of the Master Plan of Jodhpur and the land was situated near Jodhpur and nearby there was Engineering College, Hospital and RIICO Industrial Area, residential plots near the land are situated where people resides. The DLC rates indicated by the Sub Registrar, Jodhpur to the L.A.O. was exhibited as Exhibit-5. The fact that village Desuria Kharolan was part of the Master Plan was proved by Exhibit-8 and several documents relating to the valuation of land comprised in other village, which was part of the larger acquisition were also exhibited. In the cross-examination, the witness indicated that the land was sold vide Exhibit-1 to Bhikha Ram three months before the date of notification. The RIICO Industrial Area was next to the land and is within half a kilometer. Residential colony was near the land and a U.I.T. residential colony was situated in village Anganwa, which was about three kilometers off the land in question.
The witness produced by the U.O.I. Altaf Hussain DW-1 stated that the acquired land was un-cultivable and was situated in green belt of master plan relating to Jodhpur. The land was acquired for grenade range. It was stated that the land was sold by Gordhan for enhancing the market value.
From the documentary and oral evidence of the parties before the reference Court, it is apparent that while the claimants produced the sale deed (Exhibit-1), which was quite proximate to the date of acquisition and also exhibited the letter 8 sent by the Sub Registrar, Jodhpur to the L.A.O., Jodhpur indicating the DLC rates (Exhibit-5) and several other documents indicating the valuation of the land in other adjoining villages, which were also acquired by the same Notification under Section 4 and facts about the situation of the land were also stated, whereby, it was indicated that the land was part of Jodhpur Master Plan, which fact was admitted by the witness of the appellant as well and that there were residential plots around the acquired land and that Engineering College, Hospital etc. are situated within 3-4 kilometers of the land in question.
Documentary evidence produced by appellant - U.O.I. was confined to distinguishing the rate paid by the U.O.I. for the government land situated within the same village, which according to the claimants was Rs.19,360/- per bigha for the said land, so as to indicate that the payment for government land is to be made by treating the same as converted land and that the said payment was lump sum and was not required to bear any solatium, interest etc. From the evidence led by the parties, it is evident that the award of Rs.10,000/- per bigha passed by the L.A.O. was ex facie inadequate and despite noting the implication of the acquisition and the DLC rate produced before him, the L.A.O. in ignorance thereof, has come to the conclusion that the award of compensation at Rs.10,000/- per bigha was adequate.
As discussed hereinbefore, the material evidence before the reference Court was Exhibit-1 sale deed executed four 9 months before the Notification under Section 4 of the Act. Though DW-1 Altaf Hussain alleged that the said sale deed was executed to inflate the market value of the land in question, no such question was put to the material witness PW-1 Gordhan Ram and he was not even asked as to whether on the date of executing the sale deed he was aware of the impending acquisition or not. This is not even the case of U.O.I. that the acquisition was publicized well before the Notification under Section 4 of the Act was issued and, therefore, the said plea/argument on behalf of U.O.I. has no basis that the sale deed Exhibit-1 was executed merely for the sake of inflating the market value of the acquired land and consequently the said plea is rejected.
Both the U.O.I. as well as claimants relied on the DLC rate as indicated in Exhibit-5, which is Rs.11,600/- per bigha. Though it has been held by the Hon'ble Supreme Court in several judgments that DLC rates cannot form the sole basis for awarding compensation, but the said rate is a pointer to the market value of the land in question and cannot be ignored altogether. The reference Court while taking the DLC rate of Rs.11,600/- per bigha has taken into consideration the amount of stamp duty, registration fee and lawyer's fee for coming to the conclusion of market rate of the land in question. Apparently, the said approach is erroneous, inasmuch as, the market value has to be determined in the context of the land owner and not in the context of a buyer. The land owner only gets the market 10 value and the amount paid by the buyer relating to stamp duty, registration fee and lawyer's fee cannot be treated as part of the market value as far as the land owner is concerned.
The judgments relied on by the appellant in the case of Viluben Jhalejar Contractor and Dy. Collector, Land Acquisition (supra), wherein, the Hon'ble Supreme Court has indicated the positive factors and negative factors of market value, which reads thus:-
"20. The amount of compensation cannot be ascertained with mathematical accuracy. A comparable instance has to be identified having regard to the proximity from time angle as well as proximity from situation angle. For determining the market value of the land under acquisition, suitable adjustment has to be made having regard to various positive and negative factors vis-a-vis the land under acquisition by placing the two in juxtaposition. The positive and negative facts are as under:
Positive factors Negative factors
(i) smallness of size (i) largeness of area
(ii) proximity to a road (ii) situation in the interior at
a distance from the road
(iii) frontage on a road (iii) narrow strip of land with
very small frontage compared
to depth
(iv) nearness to developed (iv) lower level requiring the
area depressed portion to be filled
up
(v) regular shape (v) remoteness from
developed locality
(vi) level vis-a-vis land under (vi) some special acquisition disadvantageous factors which would deter a purchaser
(vii) special value for an owner of an adjoining property to whom it may have some very special advantage The said factors both positive and negative can be considered only based on available evidence and not in abstract.
In the present case neither the claimants have led evidence on 11 the positive factors nor the U.O.I. has led evidence on the negative factors as indicated in the said judgments of Hon'ble Supreme Court and, therefore, the reliance on the judgment having been placed merely in abstract and for academic reasons is of no use.
The Hon'ble Supreme Court in Sangunthala (Dead) through LRs. v. Special Tahsildar (Land Acquisition) & Ors. : (2010) 3 SCC 661 has held that for determination of market value of land, the purpose for which the land was acquired is a relevant factor and if the land acquired was a potential housing site adjacent to residential colony, the same would be a relevant factor.
In another judgment the Hon'ble Supreme Court in Trishala Jain & Anr. v. State of Uttaranchal & Anr. : (2011) 6 SCC 47 has held as under:-
"63. Under the Act, as settled by various judgments of this Court, there are different methods of computation of compensation payable to the claimants, for example it can be based upon comparable sale instances, awards and judgments relating to the similar or comparable lands, methods of averages, yearly yields with reference to the revenue earned by the land, etc. Whatever method of determining the compensation is applied by the court, its result should always be reasonable, just and fair as that is the purpose sought to be achieved under the scheme of the Act. For attaining that purpose, application of some guesswork may be necessary but this principle would have hardly any application in a case of no evidence. In other words, where the parties have not brought on record any evidence, then the court will not be in a position to award compensation merely on the basis of imagination, conjecture, etc.
64. These precedents clearly demonstrate that the court may apply some guesswork before it could arrive at a final determination, which is in consonance with the statutory law as well as the principles stated in the judicial pronouncements. As already noticed, the guesswork has to be used for determination of compensation with greater element of caution and the principle of guesstimation will have no application to the case of "no evidence." This principle is only intended to bridge the gap between the calculated compensation and the actual compensation that 12 the claimants may be entitled to receive as per the facts of a given case to meet the ends of justice.
65. It will be appropriate for us to state certain principles controlling the application of "guesstimate":
(a) Wherever the evidence produced by the parties is not sufficient to determine the compensation with exactitude, this principle can be restored to.
(b) Discretion of the court in applying guesswork to the facts of a given case is not unfettered but has to be reasonable and should have a connection to the data on record produced by the parties by way of evidence.
Further, this entire exercise has to be within the limitations specified under Sections 23 and 24 of the Act and cannot be made in detriment thereto.
66. Applying these principles to the facts of the present case, we have to take recourse to the "principle of guesstimation" inasmuch as it is essential for fixation of fair market value of the land which shall be the basis for determining the compensation payable to the claimants." From the judgments cited and quoted above, it is well settled that the market value of the acquired land is required to be determined with reference to the date of Notification under Section 4(1) of the Act and the market value must be based on the evidence led by the parties in the reference proceedings. However, some amount of guesswork can be made by the Court within the parameters indicated by the Hon'ble Supreme Court, but no surmises or guess can be made so as to arrive at a market value. Further, the potentiality of the land is also a relevant factor, which is required to be proved by the claimants.
From the record and the evidence of the parties as discussed above, it is apparent that Exhibit-1 sale deed was a contemporary document and the U.O.I. has failed to prove that the fact that the acquisition was in the offing, was known to the parties when the said sale deed was executed. The DLC rate 13 indicated by the Sub Registrar, Jodhpur as required by the L.A.O. indicated the market value of the land in question at Rs.11,600/- per bigha and the fact that the land in question was part of the Master Plan of Jodhpur as prepared under the provisions of Urban Improvement Act and that there was Engineering College, Hospital and Residential Colony in the periphery of the acquired land, the potentiality of the land in question for future use cannot be denied and/or ignored while determining the market value of the land in question, therefore, the market value determined by the reference Court of Rs.12,000/- per bigha though based on a wrong premise as discussed above appears to be fair and reasonable estimation of market value on the basis of material available on record and the same does not require any interference by this Court.
Accordingly, the judgment of the reference Court enhancing the market value of the land in question from Rs.10,000/- per bigha as awarded by the L.A.O. to Rs.12,000/- per bigha does not call for any interference and the appeals are, therefore, dismissed. No costs.
(ARUN BHANSALI), J.
A.K.Chouhan/-