Patna High Court
State Thr. Collector Rohtas vs Inderdeo Dubey And Ors on 6 March, 2012
Author: Mungeshwar Sahoo
Bench: Mungeshwar Sahoo
Patna High Court FA No.816 of 1991 dt.06-03-2012
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IN THE HIGH COURT OF JUDICATURE AT PATNA
First Appeal No.816 of 1991
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State Of Bihar
.... .... Opposite Party-Appellant
Versus
Prahalad Dubey
.... .... Applicant-Respondent
With
First Appeal No. 817 of 1991
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State Of Bihar
.... .... Opposite Party-Appellant
Versus
Ram Nath Dubey & Ors.
.... .... Applicants-Respondents
With
First Appeal No. 818 of 1991
===========================================================
State Of Bihar
.... .... Opposite Party-Appellant
Versus
Prahalad Dubey
.... .... Applicant-Respondent
With
First Appeal No. 820 of 1991
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State of Bihar
.... .... Opposite Party-Appellant
Versus
Inderdeo Dubey & Ors
.... .... Applicants-Respondents
With
First Appeal No. 821 of 1991
===========================================================
State of Bihar
.... .... Opposite Party-Appellant
Versus
Inderdeo Dubey & Ors
.... .... Applicants-Respondents
With
First Appeal No. 822 of 1991
===========================================================
State of Bihar
.... .... Opposite Party-Appellant
Versus
Patna High Court FA No.816 of 1991 dt.06-03-2012
2/13
Vidya Nand Dubey
.... .... Applicant-Respondent
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(All these First Appeals arises out of judgment and award dated 16.07.1991
passed by Sri Syed Akbar Raja Naqbi, Sub Judge III, Sasaram in Land
Acquisition Case No.6 of 1981, 7 of 1981, 12 of 1981, 68 of 1981, 69 of 1981 and
72 of 1981).
Appearance :
(In FA No. 816 of 1991)
For the Appellant/s : Mr. J.S. Arora, S.C.6
Mr. Ajay Kumar, A.C. to S.C.6
Mr. D.N.JHA JC TO GP 4
For the Respondent/s : Mr. S.S. Dvivedi, Sr. Advocate
Mr. Ranjan Kumar Dubey, Advocate
Mr. VIJAY KUMAR SINHA-1
Mr. Pandit Jee Pandey
Mr. P.K.Tripathy
Mr. Shambhu Sharan Singh
Mr. Rajiv Shankar Dwivedi
Mr. Umesh Kumar Singh
(In FA No. 817 of 1991)
For the Appellant/s : Mr. J.S. Arora, S.C.6
Mr. Ajay Kumar, A.C. to S.C.6
Mr. D.N.JHA JC TO GP 4
For the Respondent/s : Mr. S.S. Dvivedi, Sr. Advocate
Mr. Ranjan Kumar Dubey, Advocate
Mr. VIJAY KR.SINHA -1
Mr. Panditjee Pandey
Mr. P.K.Tripathi
(In FA No. 818 of 1991)
For the Appellant/s : Mr. J.S. Arora, S.C.6
Mr. Ajay Kumar, A.C. to S.C.6
Mr. D.N. JHA JC TO GP 4
For the Respondent/s : Mr. S.S. Dvivedi, Sr. Advocate
Mr. Ranjan Kumar Dubey, Advocate
Mr. VIJAY KR.SINHA -1
Mr. Panditjee Pandey
Mr. P.K.Tripathy
Mr. Shambhu Sharan Singh
Mr. Rajiv Shankar Dwivedi
Mr. Umesh Kumar Singh
(In FA No. 820 of 1991)
For the Appellant/s : Mr. J.S. Arora, S.C.6
Mr. Ajay Kumar, A.C. to S.C.6
Mr. D.N. JHA JC TO GP. 4
For the Respondent/s : Mr. S.S. Dvivedi, Sr. Advocate
Mr. Ranjan Kumar Dubey, Advocate
Mr. VIJAY KR. SINHA 1
Mr. Pandit Jee Pandey
Mr. P.K.Tripathi
Patna High Court FA No.816 of 1991 dt.06-03-2012
3/13
Mr. Ranjan Kumar Dubey
Mr. R.S.Dwivedi
Mr. Sangeeta Sharma
(In FA No. 821 of 1991)
For the Appellant/s : Mr. J.S. Arora, S.C.6
Mr. Ajay Kumar, A.C. to S.C.6
Mr. D.N. JHA JC TO GP4
For the Respondent/s : Mr. S.S. Dvivedi, Sr. Advocate
Mr. Ranjan Kumar Dubey, Advocate
Mr. PANDITJEE PANDEY
Mr. Vijay Kr.Sinha -1
Mr. P.K.Tripathi
Mr. Ranjan Kumar Dubey
Mr. R.S.Dwivedi
Mr. Sangeeta Sharma
(In FA No. 822 of 1991)
For the Appellant/s : Mr. J.S. Arora, S.C.6
Mr. Ajay Kumar, A.C. to S.C.6
Mr. D.N. JHA JC TO G.P.4
For the Respondent/s : Mr. S.S. Dvivedi, Sr. Advocate
Mr. Ranjan Kumar Dubey, Advocate
Mr. VIJAY KR.SINHA -1
Mr. Panditjee Pandey
Mr. P.K.Tripathy
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CORAM: HONOURABLE MR. JUSTICE MUNGESHWAR SAHOO
CAV JUDGMENT
Date: 06-03-2012
Mungeshwar It appears that 7 Land Acquisition Cases were disposed of by
Sahoo, J.the common judgment and award. These 6 First Appeals arises out of the aforesaid common judgment and award. First Appeal No.816 of 1991 arises out of the Land Acquisition Case No.6 of 1981, First Appeal No.817 of 1991 arises out of Land Acquisition Case No.7 of 1981, First Appeal No.818 of 1991 arises out of Land Acquisition Case No.12 of 1981, First Appeal No.820 of 1991 arises out of Land Acquisition Case No.68 of 1981, First Appeal No.821 of 1991 arises out of Land Acquisition Case No.69 of 1981 and First Appeal No.822 of 1991 arises out of Land Acquisition Case No.72 of 1981. It appears that for the purpose of extension of Sasaram Hospital, large chunk of land was acquired by the State of Bihar. Notification under Section 4 of the Patna High Court FA No.816 of 1991 dt.06-03-2012 4/13 L.A. Act was published in the local gazette on 02.05.1975. It appears that more than 2 acres of land was acquired by the State of Bihar. The land belonged to different claimants. The Collector awarded Rs.13,800 in L.A. 1 Case No.6 of 1981 for 75 decimals, Rs.7,398.33 for 36 /12 decimals of land in L.A. Case No.7 of 1981, Rs.3,005.34 for 16 1/3 decimals of land in L.A. Case No.12 of 1981, Rs.3,312 for 18 decimals of land in L.A. Case No.19 of 1981, Rs.993.60 for 5 ¼ decimals of land in L.A. Case No.68 of 1981, Rs.5,130.83 for 24 7/12 decimals in L.A. Case No.69 of 1981 and Rs.6,000 for 34 decimals of land in L.A. Case No.72 of 1981.
(2) The land-holders-claimants filed application for enhancement of the compensation alleging that on the date of acquisition of land, the value was Rs.20,000 per kattha. According to them, the lands are valuable lands and situated in the heart of the town and the town is developing. The land is by the side of Roza road. There are houses and shops and market near the lands acquired. They filed application under Section 18 of the L.A. Act for enhancement claiming the aforesaid rate. The Land Acquisition Officer referred the application to the Land Acquisition Judge. After evidences and hearing the parties, the learned Land Acquisition Judge fixed the market value of the land at the rate of Rs.25,000 per kattha for some land which are just by the side of Roza road and Rs.20,000 per kattha which are behind the aforesaid land and, therefore, after enhancement of the market value, now the compensation has been enhanced to the extent in L.A. Case No.6 of 1981 from Rs.13,800 to Rs.12,58,071 which is to be paid by the State of Bihar in addition Rs.13,800 already paid and likewise, in L.A. Case No.7 of 1981 from Rs.7,398.33 to Rs.6,18,127.80 which is to be paid in addition to the Patna High Court FA No.816 of 1991 dt.06-03-2012 5/13 award of the Collector which has already paid. In L.A. Case No.12 of 1981 from Rs.3,005.34 to Rs.2,82,886.29 in addition to the award of the Collector. In L.A. Case No.68 of 1981 from Rs.993.60 to Rs.87,866.76 in addition to the award of the Collector and so on and so forth in all the cases, the Land Acquisition Judge enhanced the compensation.
(3) It may be mentioned here that in all the First Appeals, cross objections have been filed by the land-holders-claimants claiming Rs.1 lakh per kattha. During the pendency of the land acquisition proceeding before the Land Acquisition Judge, in all the cases after closure of the evidence, the valuation was amended by the claimants from Rs.20,000 to Rs.1 lakh per kattha. That amendment has already been allowed by the court below on 23.05.1987. The evidences had already been closed in the year 1983 itself.
(4) The learned S.C.6, Mr. J.S. Arora appearing on behalf of the appellant submitted that the learned court below has whimsically enhanced the compensation to such an extent which is not acceptable and there is no basis for the same. The sale deeds relied upon by the Land Acquisition Judge with regard to very small area of the land and the sale deeds are not bonafide sale deeds. There is no evidence that the lands involved in those 3 sale deeds, Exhibit-1, 1/A and 1/B are similar in nature as that of the lands acquired. Admittedly, the claimants have stated that the lands acquired were the agricultural lands and there were irrigation facilities. By the three sale deeds very small area of homestead lands were sold. The appellant filed Exhibit-E, a sale deed of January, 1976 which is bonafide transaction and a portion of the said plot which was sold by Exhibit-E has been acquired in this acquisition proceeding but the learned Land Acquisition judge did not consider and rely Patna High Court FA No.816 of 1991 dt.06-03-2012 6/13 upon the said sale deed, Exhibit-E filed by the appellant. There is no evidence at all on record regarding the value of the land was Rs.1 lakh per kattha when the lands were acquired. It is the specific case of the claimants that during that period, the value of the lands was Rs.20, 000 per kattha. The Land Acquisition Judge has even granted more than the rate which land-holders claimed. No doubt, they have amended the value in the year 1987 but that was only for the sake of amendment. There is no evidence at all on the record. The learned court below also while fixing the market value of the land has not granted any deduction either on account of the development that may be required and/or on account of the fact that the lands involved in 3 sale deeds i.e. Exhibit-1 series are very small area whereas the appellant has acquired more than 2 acres of land at a time. On these grounds, the learned S.C. 6 submitted that the impugned judgment and award are unsustainable in the eye of law.
(5) On the other hand, the learned senior counsel, Mr. S.S.Dvivedi appearing on behalf of the land-holders-claimants submitted that the lands were no doubt used as agricultural purpose but that does not mean that the value of the land was not equal to that of the homestead land because it was in the heart of town and fit for construction of building and moreover, the same has been acquired for extension of hospital itself. The Land Acquisition Judge has not considered the damage caused to the land on account of acquisition of the same and thereby severance of the land from the remaining land. In such circumstances, the applicants-land holders were entitled to higher compensation. The learned senior counsel further submitted that in view of Section 28 of the Land Acquisition Act, the Land Acquisition Patna High Court FA No.816 of 1991 dt.06-03-2012 7/13 Judge should have awarded the interest at the rate of 15% from the date of taking possession till the payment but only granted 9% interest. The learned senior counsel further submitted that the Land Acquisition Judge has fully considered the evidences and materials on record and given a categorical finding about the market value and fixed the same at Rs.20,000 per kattha which are behind and the land which are just by the side of the road rate of Rs.25,000 has been fixed. Therefore, the judgment and award are not liable to be interfered with in this First Appeal. The cross-objections have been filed by the claimants-respondents claiming 15% interest on the enhanced compensation from the date of taking possession. On these grounds, the learned senior counsel submitted that the First Appeal should liable to be dismissed and the cross-objections are liable to be allowed.
(6) In view of the above contentions of the parties, the points arise for consideration in this appeal is as to:
I. Whether the compensation awarded by the Land Acquisition Officer is correct and just compensation?
II. Whether the compensation enhanced and awarded by the Land Acquisition Judge by the impugned judgment and award are just compensation?
III. Whether the cross-objections filed by the respondents have got merit and whether the claimants are entitled for more enhancement?
(7) In this case, the claimants have examined 41 witnesses. Most of the said witnesses are formal in nature and have produced various documentary evidences in support of the title. Only P.W.2, 3, 5 to 7, 9, 12, 15 to 19, 23, 27, 31, 36 and 39 are the material witnesses who have all Patna High Court FA No.816 of 1991 dt.06-03-2012 8/13 stated about the market value of the land. According to these witnesses, the lands acquired are within municipal area and surrounded by house, school and residential houses. It may be mentioned here that these witnesses were deposing before the court in the year 1983. The notification under Section 4 of the L.A. Act was published in the year 1975. The witnesses are not saying the situation in the year 1975 when the notification was issued. They deposed the situation on the date when they deposed i.e. in the year 1983. The witnesses have stated that when the lands were acquired the value of the land was about Rs.20,000 per kattha. The witnesses have further stated that there were irrigation facility on the land and 3-4 times vegetables were grown in a year. These are the oral evidences. Almost all the witnesses claimed that Rs.20,000 per kattha was the market value of the land when the lands were acquired. It is well settled principles of law that on the basis of oral evidences, the market value cannot be fixed as it is not safe to rely upon the statement of witness regarding the market value.
(8) The claimants have produced 3 sale deeds. Exhibit-1 is sale deed dated 11.11.1974 wherein 16 dhurs of land was sold for Rs.14,000.
Exhibit-1/A is the sale deed dated 01.11.1974 wherein 8 dhurs of land was sold for Rs.6,000. Exhibit-1/B is the sale deed dated 26.02.1975 wherein only 5 dhurs and 6 ¾ dhurki land was sold for Rs.12,000. All these lands were homestead land and very small area have been sold. On the contrary, the State of Bihar has produced Exhibit-E, the sale deed dated 19.01.1976. From the evidence of the D.W.4, it appears that the lands of Exhibit-E were sold which was in the boundary of plot no.261. The said land has also been acquired by the State of Bihar. The Land Acquisition Officer has taken into account this Patna High Court FA No.816 of 1991 dt.06-03-2012 9/13 sale deed and fixed the rate of the land acquired which would be evident from D.W.5. From perusal of the impugned judgment and award, it appears that learned court below has not at all considered this aspect of the matter. The Land Acquisition Judge has not given any cogent reason for not relying on this sale deed. The other aspect of the matter is that the Land Acquisition Judge has not considered that the lands which were sold through Exhibit-1 series were small areas of land and could not have been taken into as guideline for determining the rate for large area of land. Further, as has been stated by the parties, the lands acquired were agricultural land it require development as it was undeveloped land but the learned court below has not at all deducted any amount towards either for development or for the differences in small area and large area. It appears that abruptly in last portion of paragraph 7 of the judgment, the Lower Court held that thus, considering Exhibit-1 series and to meet the ends of justice it would be proper to fix Rs.20,000 per kattha for all the lands which are situated by the side of Roza road and Rs.25,000 per kattha which are behind the above lands.
(9) In the case of State of U.P. and others Vs. Ram Kumari Devi (Smt.) and others 1996 (8) SCC 577 the Hon'ble Supreme court has held at paragraph 4 as follows :
"4. It is seen that small pieces of land of an extent of 60' x 20', 40' x 40' and 1600 sq. ft. were sold by the claimants, obviously on coming to know of the proposed acquisition. It is common knowledge that acquisition proposal would be made at an earlier point of time and finalisation of acquisition would take a long time. In the process, on becoming aware of the acquisition, obviously, these sale deeds have been brought into existence to inflate the market value. It is laid down by this Court which is a well-settled principle that it is the duty of the court to assess reasonable compensation. Burden is on the owner to prove the prevailing Patna High Court FA No.816 of 1991 dt.06-03-2012 10/13 market value. On adduction of evidence by the parties, the acid test which the court has to adopt is that the court has to sit in the armchair of a prudent purchaser, eschew feats of imagination and consider whether a reasonable prudent purchaser in the open market would offer the same price which the court is intending to fix the market value in respect of the acquired land. Since it is a compulsory acquisition, it is but the solemn duty of the court to assess reasonable compensation so as to allow the same to the owner of the land whose property has been acquired by compulsory acquisition and also to avoid needless burden on public exchequer. No feats of imagination would require to bog the mind that when 13.75 acres of land was offered for sale in an open market, no prudent man would have credulity to purchase that land on square foot basis."
(10) In the case of Karnataka Urban Water Supply and Drainage Board and others vs. K.S. Gangadharappa and another, (2009)11 SCC 164, the Apex Court has held that where a large area is the subject matter of acquisition, rate at which small plots are sold cannot be said to be a safe criterion. It cannot, however, be laid down as an absolute proposition that the rates fixed for the small plots cannot be the basis for fixation of the rate. For example, where there is no other material it may in appropriate cases be open to the adjudicating court to make comparison of the prices paid for small plots of land. However, in such cases necessary deductions/adjustments have to be made while determining the prices. The Apex Court further held that the rates paid for small parcels of land do not provide a useful guide for determining the market value of the land acquired. While determining the market value of the land acquired, it has to be correctly determined and paid so that there is neither unjust enrichment on the part of the acquirer nor undue deprivation on the part of the owner. The compensation must be determined by reference to the price which a willing Patna High Court FA No.816 of 1991 dt.06-03-2012 11/13 vendor might reasonably expect to receive from the willing purchaser. While considering the market value disinclination of the vendor to part with his land and the urgent necessity of the purchaser to buy it must alike be disregarded. The value of the land is not to be estimated as its value to the purchaser. But similarly this does not mean that the fact that some particular purchaser might desire the land more than others is to be disregarded. According to the Apex Court, the principles to be considered is when sale is within a reasonable time of the date of notification under Section 4(1) of the L.A. Act, it should be a bonafide transaction, it should be of the land acquired or of the land adjacent to the land acquired and it should possess similar advantages. It is only when these factors are present it can merit a consideration as a comparable case.
(11) In the case of CESC Limited vs. Sandhya Rani Barik and others, (2008) 17 SCC 436, the Apex Court has held that while considering sell price of a smaller piece of land a percentage of price should be deducted to assess the market value of the acquired land.
(12) In the case of Revenue Divisional Officer-cum-Land Acquisition Officer vs. Shaik Azam Saheb and others, (2009) 4 SCC 395, the Apex Court has again held that while comparing the market value of developed lands with that of undeveloped lands suitable deductions have to be made towards the cost of development.
(13) In the case of Kanta Devi and others vs. State of Haryana and another, (2008)15 SCC 201, the Apex Court held that the deduction at the rate of 70% was on the higher side and deduction of 60% of market value was found to be reasonable rate. The Apex Court found that the land was adjacent to village abadi which had already developed. In that case, the Patna High Court FA No.816 of 1991 dt.06-03-2012 12/13 High Court has granted 70% deduction on account of development.
(14) In view of the above settled proposition of law laid down by the Apex Court, the learned Land Acquisition Judge while relying upon the Exhibit-1 series should have granted suitable deduction of some percentage as the lands involved in the sale deeds are homestead land and are very small area not even 1 kattha whereas the land acquired was more than 2 acres.
(15) From the above discussion of the facts and circumstances of the case as has been stated, the Lower Court has not deducted any percentage towards the development and also because the lands involved in Exhibit-1 series are not similar either in nature or area to that of the lands acquired rather the court below has fixed the market value of the land and thereby allowed even more than the claimants claimed. In my opinion, therefore, the market value fixed by the learned Lower Court is exaggerated one and based on Exhibit-1 series which are not in fact, comparable sale instances. In my opinion, therefore, 30% should be deducted towards the development and 30% should be deducted for the fact that lands of Exhibit-1 series are small area and homestead land whereas the lands acquired are large area and agricultural land. Now, therefore, the market value of the land comes to Rs.20,000 - Rs.12,000(60%)= Rs.8,000 per kattha. This is according to me the prevalent market value of the land when the lands were acquired. Since originally the claimants have not claimed any higher rate for the lands by the side of the road and less rate behind the said road, in my opinion, the market value of all the lands should be equal i.e. Rs.8,000 per kattha. The land-holders-claimants are entitled for the said rate and also the statutory benefits. The claimants are also entitled to receive 15% interest from expiry of one year from the date of taking possession on the enhanced Patna High Court FA No.816 of 1991 dt.06-03-2012 13/13 compensation as provided under Section 28 of the Land Acquisition Act. Prior to that the enhanced compensation shall carry on 9% interest.
(16) Since the cross-objections have been filed by the claimants for enhancement of rate of interest from 9% to 15% as provided under Section 28 of the L.A. Act, the same is allowed and it is held that the claimants are entitled to receive 15% interest from expiry of one year from the date of taking possession on the enhanced market rate of the lands acquired.
(17) In view of my above discussion and findings, all the First Appeals are allowed in part. The judgment and awards are modified to the extent indicated above. The cross-objections filed by the respondents regarding claim of 15% interest as stated above is allowed in all the First Appeals. No order as to costs.
(Mungeshwar Sahoo, J) Saurabh/A.F.R.