Jharkhand High Court
Chandrika Pd. Singh @ Chandrika Singh ... vs State Of Bihar (Now Jharkhand) on 17 April, 2007
Equivalent citations: 2008(56)BLJR162, 2008 (1) AIR JHAR R 823, 2008 A I H C 3275 (2007) 4 JLJR 618, (2007) 4 JLJR 618
Author: Narendra Nath Tiwari
Bench: Narendra Nath Tiwari
JUDGMENT Narendra Nath Tiwari, J.
Page 0163
1. Both the appeals arise out of orders and Awards of the learned 1st Sub-Judge, Deoghar. He has passed the awards, in exercise of power as a Judge, Land Acquisition, on the references Under Section 18 of the Land Acquisition Act. Since the facts and the questions of law involved in both the appeals are almost common, the said appeals have been heard together with the consent of the parties and are being disposed of by this common judgment.
2. In both the cases, learned Judge has confirmed the Award made by the land Acquisition Officer and refused to enhance the amount of compensation, claimed in the said references.
3. The lands of the appellants were acquired for the purpose of construction of Ajay Barraj Project in the year 1983-84.
4. In the case, out of which F.A. No. 674 of 1995(P), arose, the lands of the appellants of Plot Nos. 267, 284, 339, 341, 350, 955, 349, 282, 301, 337, 348, 354, 295 & 340 of J.B. No. 17, of Village-Hazari Nawadih, P.S. Sarath, District-Deoghar, Thana No. 162 measuring an area of 1.79 acres were acquired by the Government for the aforesaid Scheme under land Acquisition Case No. 28 of 1983-84.
5. In the case, out of which F.A. No. 675 of 1995(P) arose, the lands of the appellants of J.B. Nos. 1, 2 and 7 of Village-Lutia, P.S. Sarath, District-Deoghar measuring an area of 4.48 acres were acquired by the Government for the same Scheme.
6. In both the cases, the Land Acquisition Officer, determined compensation and prepared award, relying upon a Government letter Paripatra Sankhaya 2016 dated 16.6.1981, on the basis of nature of land, recorded in Ganger's Survey and Settlement, which was published in 1930. The value of different categories of lands was fixed and compensation was determined, as follows:
Class of land Compensation award (Per acre) Dhani-I Rs. 24,289/-
Dhani-II Rs. 18,217/-
Dhani-III Rs. 12,144/-
Bari-I Rs. 15,180/-
Bari-II Rs. 3,036/-
7. The appellants, who were put to face adverse circumstance after the acquisition of their agricultural lands, though dissatisfied with the said compensation, accepted the amount of compensation under protest. According to the appellants, the amount Page 0164 of compensation, determined on the basis of the nature/category of land recorded in the Gantzer's Survey Settlement Report, is wholly arbitrary and irrational. By passage of more than 50 years after the said survey, the use and quality of lands were completely changed and the lands, which were recorded as Dhani-III, were mostly converted into Dhani-I land and the appellants were growing three crops over the land. The compensation amount which was computed on the basis of the nature of land recorded in the said survey, was too low and unjust.
8. The appellants, on the said arbitrary basis, were paid a sum of Rs. 33,678.92 paise as compensation for their land of Village- Hazari Nawadih, measuring an area of 1.79 acres in re. F.A. No. 674 of 1994(P) and for their land of Village-Lutia, measuring an area of 4.48 acres, a sum of Rs. 1,03,205.56 was paid to the appellants in re. F.A. No. 675 of 1995(P). For the acquired lands measuring an area of 6.27 acres of the said two villages, the appellants were paid compensation of total Rs. 1,36,884.48.
9. According to the appellants, the Land Acquisition Officer did not take into consideration the considerable improvements made in the lands by incurring huge investment whereby Dhani-III lands were converted into Dhani-I land. He also did not award any compensation of number of fruits bearing trees standing over the acquired land.
10. The appellants, in both the cases, thus, had sought reference Under Section 18 of the Land Acquisition Act, which were registered as L.A. Reference Case No. 28 of 1983-84, corresponding to F.A. No. 674 of 1995(P) and L.A. Reference Case No. 25 of 1983-84, corresponding to F.A. No. 675 of 1995(P).
11. The claimant-appellants, in both the cases, claimed for enhancement and determination of due compensation on the ground that the acquired lands were considerably improved and were converted into Dhani-I land. The claimants were growing three crops in one agricultural year as the lands were adjacent to the riverbank, having perennial source of irrigation. Large number of fruits bearing trees were standing over the acquired lands and the appellants were earning income of more than Rs. 70,000/- per annum. The same was also not taken into consideration. The claimant-appellants claimed compensation @ Rs. 85,000/- per acre for Dhani-I land; @ Rs. 70,000/- per acre for Dhani-II land and @ Rs. 60,000/- per acre for Dhani-III land as also the adequate compensation for standing fruit trees over the land.
12. It is relevant to mention here that the acquired lands are of those villages, which fall within Santhal Pargana Division, where the Santhal Pargana Tenancy Act is applicable. There is prohibition of sale of the said lands under the provision of the said Act. The best evidence for determining the value of the land i.e. sale deeds are, thus, not available in the cases. Under the said circumstance, the applicants-appellants proved their claim by adducing oral evidences. The applicants examined themselves as also other witnesses to establish their claims.
13 Applicant-Witness (A.W. 1), Chandrika Singh is one of the claimants. He stated that the lands have been considerably improved since the time of last settlement and the same have been converted into Dhani land. He used to get agriculture proceeds @ Rs. 25,000/- per annum per acre of land. There were number of fruits bearing trees standing over the acquired lands, such as, Jackfruit, Mango, Mahua and Jamun. He used to earn income of about Rs. 8,000-10,000/- per annum. He has claimed that at the time of acquisition, the value of the land was about Rs. 75,000/- per acre and the value of the trees was about Rs. 80,000/-.
Page 0165
14. A.W. 2, Udai Kumar Singh in his evidence, has stated that the value of the acquired lands in the village was about Rs. 80,000/- per acre for Dhani-I; Rs. 70,000/- per acre for Dhani-II and Rs. 60,000/- per acre for Dhani-III. The lands acquired were adjacent to river having irrigation facilities throughout the year, considerable improvements were made in the lands after the last survey. He has further stated that the value of the trees standing over the land was about 80,000/-.
This witness has also stated that the yield of the land per acre was of about Rs. 25,000-30,000/- per annum.
15. A.W. 3, Mukund Bihari Singh, in his deposition, has also stated that the lands were improved and the acquired lands were all Dhani-I land. The lands were adjacent to for River and had perennial irrigation facility throughout the year. The annual proceed out of the lands used to be about Rs. 25,000/- per acre and the value of the lands was about Rs. 75,000 80,000/- per acre.
16. A.W. 4, Paras Nath Singh has also supported the claim and stated that all the lands were Dhani-I land and the annual proceed out of the agricultural produce was about Rs. 25,000/- per acre and the value of the lands was about Rs. 70,000-75,000/- per acre.
17. A.W. 5, Nunu Ram Singh has also supported the claim and stated that the annual proceed out of the agriculture proceed of the lands was about Rs. 25,000/- per acre and the lands were on the bank of river having irrigation facilities throughout the year. He has also stated that the value of the land must be Rs. 70,000-75,000/- per acre and the value of the standing trees must be Rs. 70,000-80,000/-.
18. A.W. 6, Birbal Verma has also supported the claim and stated that the lands were irrigated land and the yield was of about Rs. 11,000/- per annum.
19. On behalf of the State- respondent, Dina Nath Pandey was examined, as O.P.W. 1. He is the only witness on behalf of the State-respondent. He has stated that for the purpose of acquisition, he had visited the village with the Amin, who had taken measurement of the lands. After taking measurement, Khesra was prepared. He has proved the khesra as Exhibit-A. On the basis of the Khesra, the compensation amount was determined in terms of the prescribed Government rate and valuation report was prepared. He has proved the said valuation report as Exhibit-B.
20. Learned Land Acquisition Judge, ignored the evidences adduced by the applicants, and relied upon the Government letter No. 2016 dated 16.6.1981, issued by the land Reforms & Revenue Department, Bihar, Patna, and upheld the award of the Land Acquisition Officer. Learned Judge observed that the lands were non-saleable and, as such, determination of compensation on the basis of the prescribed Government rate cannot be said to be arbitrary. He has also disbelieved the oral evidence on the ground that no documentary evidence was produced to prove the claim of improvement of the lands from Dhani-III to Dhani-I. Learned Judge approved the assessment on the basis of khesra, khatian and valuation report prepared by the Land Acquisition Department-Exhibits-A and B. Learned Judge did not take into consideration the evidence of the claimants' witnesses regarding the growing of crops, annual earning/proceeds of the lands and the valuation of the trees. The claim of compensation of trees was not accepted on the ground that Land Acquisition Officer while making reference has not mentioned about the standing trees over the acquired lands. Learned Judge held that there is no documentary evidence regarding the produce of the crops and the land being non-saleable, there was no infirmity or Page 0166 illegality in assessing the compensation on the basis of Government letter No. 2016 dated 16.6.1981. Learned Judge thus refused to accept the applicants-appellants' claim.
21. The appellants have assailed the impugned awards and orders mainly on the ground that the learned Judge has erroneously discarded the evidence adduced by the claimant-appellants and mechanically accepted the same basis for valuation, which was challenged before him. It has been contended that determination of value of the acquired land was irrational and arbitrary. The said valuation report was prepared on the basis of the Gantzer's Survey, which was framed and published about five decades ago. The letter dated 16.6.1981 prescribing the Government rate, cannot be the basis for assessment of compensation of the acquired land. The learned Judge has failed to take into consideration the established method for determining the market value of crop producing agricultural land. The character of land, which is not saleable due to certain statutory restriction, cannot be without any value/prices and the due compensation for acquisition of such land cannot be denied.
22. I have heard Mr. V. Shivnath, learned senior counsel appearing on behalf of the appellants and Mr. M.S. Akhtar, learned S.C. II appearing on behalf of the respondents and have also closely scrutinized the facts, evidences and materials on record.
23. The point for consideration in these appeals is as to whether the compensation determined for the appellants' lands by the Land Acquisition Officer is proper, legal and just and the same has been rightly upheld by learned Land Acquisition Judge.
24. Mr. V. Shivnath, learned senior counsel appearing on behalf of the appellants elaborately argued and referred the evidences adduced on behalf of the claimants. Learned counsel urged that the Land Acquisition Officer arbitrarily assessed the compensation of the appellants' lands on the basis of the nature/categories of land recorded in the Gantzer's Survey, which was published about five decades ago as well as on the basis of the Government rate fixed by letter No. 2016 dated 16.6.1981, which have no relevance. Learned Judge, Land Acquisition has also not considered the relevant legal principles and evidences and material on record and erroneously upheld the award. Learned Judge should have considered the oral evidences adduced by the applicants and should not have discarded the same on the ground that there was no documentary basis to support the oral evidences. He submitted that the reason assigned by the court below, for refusing the claim is contrary to law and the finding arrived at by him is perverse.
25. Mr. M.S. Akhtar, learned S.C.II appearing on behalf of the respondents, on the other hand, submitted that since the acquired lands were non-saleable under the provisions of Santhal Pargana Tenancy Act (S.P.T. Act for short) and the same have got no market price. Sale deeds, which could have been basis for determination of market value, are not available for such lands. There was no other way to assess the value of the land than to depend upon the Government rate of valuation fixed' in the Government's letter No. 2016 dated 16.6.1981. He further submitted that there was no documentary evidence regarding change of the nature of the lands from what was recorded in the Gantzer's survey and, as such, the compensation has been validly assessed on the basis of the nature of the land entered in the said survey record. There is no illegality either in the awards of the Land Acquisition Officer or in the orders/awards of learned court below and there is no merit in these appeals.
Page 0167
26. It is an admitted position that, according to the provision of the S.P.T. Act, the acquired lands of the appellants are not saleable. The question is how market value of such land can be determined?
27. It cannot be accepted that the lands, transfer of which is restricted has no market value, because the same has got no prevailing price of sale and purchase between willing vendor and willing purchaser.
28. In K. Posayya and Ors. v. Special Tahsildar , the Apex Court on almost similar controversy ruled that since the tribals have no capacity to purchase the land, it can not be said that the tribal lands are not possessed of market value. It has been further held that market value can be determined either on the basis of prevailing prices of sale and purchase between willing vendor and vendee or on the basis of value of the crops and annual yield, applying suitable 10 years' multiplier for determination of compensation of such lands.
29. In Additional Special Land Acquisition Officer v. Yamanappa Basalingappa Chalwadi 1995(1) PLJR (SC) 61, the Supreme Court relying on a decision in Special Land Acquisition Officer Davangere v. P. Veerabharappa held that ten years multiplier of the annual yield would be the proper basis in determining the market value by method of capitalization and the same, is just and reasonable principle. The Supreme Court held as follows:
We find that this principle is quite consistent with the valuation of the land allowed by multiplying the value of the annual yield, in the absence of any other acceptable evidence...we hold that ten years multiplier is the proper method of valuing the lands by capitalization method.
30. The same view was taken in Vitthalbhai Bakorbhai (dead) and Ors. v. Executive Engineer Capital Project and Anr. .
31. In the instant cases, though there is no documentary evidence to substantiate the claim of the appellants, there are oral evidences to support the claim of the appellants. A.W. 1, Chandrika Singh, A.W. 2, Udai Kumar Singh, A.W. 3, Mukund Bihari Singh, A.W. 4, Paras Nath Singh, A.W. 5, Nunu Ram Singh and A.W. 6, Birbal Verma have consistently stated that the appellants were getting agriculture yield of about Rs. 25,000/- per annum.
32. The said oral evidences have been completely discarded by the learned Land Acquisition Judge on the ground that there is no document to support the said statements of the claimant-appellants.
33. In State of Gujarat and Ors. v. Rama Rana and Ors. the Apex Court has ruled that oral evidence cannot be rejected in determining compensation for not adducing the documentary evidences. In para 5 of the said decision, the Apex Court held thus:
It is undoubtedly true that one of the methods of determination of compensation, in the absence of best evidence, namely, sale deeds, is the realized value of the crop. Normally, they should have produced the statistics from the Agricultural Department as to the nature of the crops and the prices prevailing at that time, but unfortunately, neither claimants nor the Government took any step to adduce the best evidence. It is a fact that the Government have failed to adduce any evidence in that behalf. However, we cannot reject the oral evidence of the witnesses on that ground alone.
(emphasis supplied) Page 0168
34 In the above case also, the Apex Court applied multiplier principle and awarded compensation on that basis.
35. Learned Land Acquisition Judge has, thus, committed serious error in completely discarding the oral evidences adduced by the claimants-appellants to prove their claim.
36. On close scrutiny of the evidences and materials on record, I find that it is admitted by the respondents that the acquired lands, in question, were mostly Dhani-III land. The claimants-appellants though claimed that they had improved the lands and converted the said lands into Dhani-I land, there is no cogent evidence on record to prove that the natures/grades of the lands after improvement were converted into Dhani-I land. There is no evidence of any expert or any other evidence of solid nature on the basis of which it can be held that all the lands have been converted into Dhani-I land, as claimed by the appellants. It cannot, thus, be held that all the acquired lands have been converted into Dhani-I land.
37. However, in the evidences of A.Ws., it has been consistently stated that the proceeds of agriculture yield of such Dhani-I land is between Rs. 25,000-30,000/- per annum. The Respondents have also admitted that the nature of the lands is Dhani-III land.
38. In view of the said admitted position, it is on the safe side to reduce the claim of annual yield to one third i.e. Rs. 10,000/- per acre. Applying the appropriate multiplier method for determining the valuation of such land, prescribed by the Supreme Court in State of Gujarat (supra) and other cases, the ten years multiplier of ten thousand comes to Rupees one lakh per acre. As per the said decision, if 50% is deducted towards expenses etc., it comes to Rs. 50,000/- per acres as the net value of the lands acquired. The learned Judge should have, thus, determined the market value on the said basis @ Rs. 50,000/- per acre for the acquired land. Learned Judge should have also allowed the statutory solatium and interest. The learned court below has not addressed the issue before him properly and legally and has erroneously rejected the claim of the applicants-appellants. The impugned orders and Awards are, thus, unsustainable and are, hereby, set aside.
39. It is held that the appellants are entitled to get compensation @ Rs. 50,000/- per acre for their acquired lands. They are also entitled for solatium according to the provision of Section 23(1A) and the interest, as provided Under Section 28 of the Land Acquisition Act on the excess sum of compensation.
40 Both the appeals are, accordingly, allowed.
41. However, in the facts and circumstances, there shall be no order as to costs.