Rajasthan High Court - Jodhpur
Smt. Radha Devi & Ors vs Rajasthan Housing Board on 2 May, 2017
Author: Arun Bhansali
Bench: Arun Bhansali
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B.Civil Misc. Appeal No. 247 / 1999
Rajasthan Housing Board, Jaipur through Resident Engineer,
Rajasthan Housing Board, Bhilwara.
----Appellant
Versus
1. Smt. Radha Devi widow of Shri Ramkaran Sharma,
2. Gopal s/o. Shri Ramkaran Sharma,
3. Shyam Lal s/o. Shri Ramkaran Sharma,
All residents of Junawas, Bhilwara.
----Respondents
Connected With
S.B.CIV.CROS.OBJ.MISCAPP No. 12 / 2001
1. Smt. Radha Devi widow of Shri Ramkaran Sharma,
2. Gopal s/o. Shri Ramkaran Sharma,
3. Shyam Lal s/o. Shri Ramkaran Sharma,
All residents of Junawas, Bhilwara.
----Cross Objectors/Applicant/Respondents
Versus
Rajasthan Housing Board, Jaipur through Resident Engineer,
Rajasthan Housing Board, Bhilwara.
----Non-Cross Objector/Non-Applicant/Appellant
_____________________________________________________
For Appellant(s) : Mr. P.C. Sharma.
For Respondent(s) : Mr. Arvind Samdariya.
_____________________________________________________
HON'BLE MR. JUSTICE ARUN BHANSALI
Order 02/05/2017 This appeal under Section 54 of the Land Acquisition Act, 1894 ('the Act') and the cross-objections arise out of judgment & decree dated 17.12.1998 passed by the Civil Judge (Sr. Division), Bhilwara ('the Trial Court'), whereby the reference made to it was partly accepted and the award dated 07.05.1986 passed by the Land Acquisition Officer ('the LAO') was modified and the claimants were held entitled to amount under Section 23(1A) & (2 of 16) [ CMA-247/1999] (2) of the Act alongwith interest, however, the award of compensation towards cost of land and trees etc. was maintained.
The land admeasuring 5 Bigha 9 Biswa owned by respondents was acquired by issuance of notification dated 22.04.1982 under Section 4 of the Act and by issuing notice under Section 9 of the Act claims were invited. The respondents submitted claim for a sum of Rs.4,56,700/-, which was resisted by the appellant-Housing Board. The LAO determined cost of land at Rs.81,750/- by determining the same at Rs.15,000/- per Bigha. The cost of various trees other than Mango trees, was determined at Rs.19,800/-, Mango trees at Rs.3,620/-, Well at Rs.11,492/- and a total compensation of Rs.1,16,652/- was determined and compensation for compulsory acquisition at 10% of the said amount alongwith interest @ 4% was allowed and in all compensation of Rs.1,39,705.86 P. was awarded.
Feeling aggrieved, the respondents sought reference under Section 18 of the Act, which was referred to the court of Civil Judge (Sr. Division), Bhiwara, wherein reply to the claim was filed and evidence was led by the respondents-claimants on the issues framed by the trial court. No evidence was led by the appellant- Board.
After hearing the parties, the trial court passed the judgment as noticed hereinbefore partly accepting the reference.
The appellant-Housing Board challenged the judgment impugned on the ground that award of compensation under Section 23 (1A) & (2) of the Act was not justified, inasmuch as, (3 of 16) [ CMA-247/1999] the amendment came into operation w.e.f. 03.01.1987 in the State of Rajasthan and the award had already been delivered on 07.05.1986 and, consequently, sought setting aside of the award to the extent the same has been enhanced.
The respondents-claimants filed cross-objections and sought enhancement of amount of compensation qua the cost of land from Rs.15,000/- per Bigha to Rs.40,000/- per Bigha, the cost of Mango trees from Rs.3,620/- to Rs.18,000/-, for well from Rs.11,492/- to Rs.28,000/- & compensation for boundary wall etc. During pendency of the appeal, an application under Order XLI, Rule 27 CPC has been filed by the respondents-cross- objectors on 29.11.2016 for producing a sale deed dated 14.05.1981.
It is submitted by learned counsel for the appellant-Housing Board that the trial court committed error in awarding compensation under the provisions of Section 23(1A) & (2) of the Act, inasmuch as, the award was passed on 07.05.1986 and the provisions of the Act were applied by Land Acquisition (Rajasthan Amendment) Act, 1987 w.e.f. 04.04.1987 and, therefore, the provisions would have no application and, consequently, the judgment impugned deserves to be quashed and set aside.
Pertaining to the cross-objections, it is submitted that under Section 23(1) of the Act only market value of the land is to be determined, the documents produced by the respondents, either before the trial court or alongwith the application under XLI, Rule 27 CPC, are of no consequence. Further submissions have been (4 of 16) [ CMA-247/1999] made that the LAO despite noticing the DLC rates has awarded two and a half times of the said rate and that even as per the sale deed produced by the respondents, the cost of the land comes to Rs.15,000/- only and, therefore, the cross-objections raised by the respondents have no substance and the same deserve to be dismissed.
Learned counsel for the respondents submitted that the appeal filed by the appellants has no substance in view of the provisions of Section 56 (8) & (9) of the Act, which have applied the provisions of Section 23 (1A) and Section 30 (2) & (3) of the Act to every proceedings and, consequently, the appeal deserves to be dismissed.
In reference to the cross-objections, it was vehemently submitted that the trial court has not taken into consideration the documents produced by the respondents in right perspective, wherein the cost of the land on the date of acquisition is reflected much more than what has been awarded by the trial court. It is submitted that the potentiality of the land has not at all been taken into consideration, which was well proved by the respondents by producing material to show that the land in question was utilized by the appellant-Housing Board for construction of the housing colonies and that the land in question has been thereafter transferred by the appellant-Housing Board at huge amount and, therefore, the respondents-cross-objectors were entitled to enhanced compensation as claimed by them.
Reliance was placed on Charan Das (Dead) by LRs. & etc. v.
(5 of 16) [ CMA-247/1999] Himachal Pradesh Housing and Urban Development Authority & Ors.: 2009 AIR SCW 6232; Valliyammal & Anr. v. Special Tahsildar (Land Acquisition) & Anr.: 2011 AIR SCW 4591 and Kamla Devi v. The Border Security Force, Jodhpur & Ors.: 1988 (1) RLR 640.
I have considered the submissions made by learned counsel for the parties and have perused the material available on record.
In so far as the appeal of the appellant-Housing Board is concerned, the same need not detain this Court in view of express provisions of Section 56 (8) and (9) of the Act, which are squarely applicable and takes care of the objection raised by the learned counsel for the appellant-Housing Board. The provisions read as under:-
"56. Provisions consequential to the extension of this Act to the State of Rajasthan. -
(1)........................................ (2)........................................ (3)........................................ (4)........................................ (5)........................................ (6)........................................ (7)........................................
(8) In a proceeding where the amount of compensation has been determined before the commencement of the Land Acquisition (Rajasthan Amendment) Act, 1987, whether by the Collector or by the Court, the amounts in addition to the market value of the land as specified in sub-section (1-A) and sub-
section (2) of section 23 shall be further paid after adjustment of any sum paid earlier under the said sub- sections, by the Collector to the persons to whom compensation was payable or paid. These amounts shall be payable in every proceeding and in regard to every award as specified in sub-sections (1) and (2) of section 30 of the Land Acquisition (Amendment) Act, 1984 (68 of 1984).
(9) Where, in the cases as specified in sub- sections (2) and (3) of section 30 of the Land Acquisition (Amendment) Act, 1984 (68 of 1984) interest is payable or has been paid under section 28 or section 34, the amount of such interest shall be re-
(6 of 16) [ CMA-247/1999] determined and paid after adjustment of any sum paid under the said sections by the Collector at the respective rates specified in and in accordance with the provisions of the said sections as amended by the said Act."
In view of the express provisions applying provisions of Sub- sections (1A) & (2) of Section 23 of the Act, the trial court was justified in ordering for payment in terms of Section 23 (1A) and (2) of the Act and awarding interest in terms of provisions of the Act. Consequently, in so far as the appeal filed by the appellant- Housing Board is concerned, the same has no substance.
Coming to the determination of compensation towards cost of the land in question, the LAO, in his award dated 07.05.1986 noticed and observed the following:-
"9- eSusa mijksDr Hkwfe dk ekSds ij fujh{k.k fd;k ,oa i=kofy;ksa esa izLrqr nLrkostkr dk v/;;u fd;k rFkk i{kdkjksa dh cgl lquhA mijksDr ekeyksa esa yxHkx lHkh [kkrsnkjksa }kjk vius Dyse esa Hkwfe dh nj izfr ch?kk 40]000@& eqvkots dh ekax dh gS ,oa blds leFkZu esa foØ; i= fnukad 28-7-81 dk 1 ch?kk 13 fcLok Hkwfe dh is'k fd;kA ftlds vk/kkj ij es nkosnkjksa }kjk ekaxh xbZ Hkwfe dh nj :0 40]000@& dks vf/kd ekurk gSA 10- jktLFkku vkoklu e.My }kjk vius tokc esa ;g fy[kk x;k gS fd orZeku Hkwfe dh nj vf/kd ls vf/kd :0 6]666@& izfr ch?kk crkbZ gS ,oa blds leFkZu esa foØ; i= fnukad 5-2-81 dk is'k fd;k gS fdUrq orZeku ekeyksa esa jktLFkku Hkwfe vokfIr vf/kfu;e dh /kkjk 4 dh foKfIr fnukad 22-4-82 dks tkjh dh xbZ Fkh vr% bl foØ; i= ds vk/kkj ij orZeku ekeyksa es Hkwfe dh nj fuf'pr fd;k tkuk mfpr ugha gksxkA vr% eSa vkoklu e.My }kjk vius tokc esa izLrqr Hkwfe dh nj dks de ekurk gwaA 11- eSaus bu izdj.kksa ls lEcfU/kr ekSds dk fujh{k.k fd;k ,oa i=kofy;ksa esa izLrqr nLrkostkr dk v/;;u fd;k ,oa lEcfU/kr i{kdkjksa dh cgl lquhA ;g Hkwfe jktLFkku vkoklu e.My dh 'kkL=huxj ;kstuk ds lehi fLFkr gS] vr% Hkfo"; esa gksus okys fodkl dh n`f"Vdks.k Hkwfe dh fLFkfr vR;Ur egRoiw.kZ gS ,oa lHkh ekeyksa es Hkwfe flafpr gS vr% eSa Hkwfe dks iksVsf'k;fyVh ds vk/kkj ij vkoklu e.My dh orZeku ;kstuk "kkL=huxj ds vR;Ur lehi gksus ds dkj.k bu ekeyksa esa eqvkots gsrq Hkwfe dh nj 15]000@& izfr ch?kk fn;k tuk (7 of 16) [ CMA-247/1999] U;k;ksfpr ekurk gwaA"
A perusal of the above finding would reveal that the claimants sought compensation based on the sale deed dated 28.07.1987 @ Rs.40,000/- per Bigha and it was claimed by the appellant-Housing Board that the maximum cost would be Rs.6,666/- per Bigha, the LAO then came to the conclusion that looking to the potentiality of the land in question, the claimants were entitled to compensation @ 15,000/- per Bigha.
In the reference application, it was claimed that the compensation awarded under various heads was insufficient and on the lower side. Before the reference court, the appellant- Housing Board filed its objections. The trial court framed three issues. On behalf of the claimants, sale deed dated 30.12.1981 was marked as Ex.-1 and sale deed dated 27.05.1985 was marked as Ex.-2, an allotment cum possession letter dated 28.02.1990 was marked as Ex.-3, certain reports and photographs were also produced. However, on behalf of the Housing Board, no evidence was produced.
The trial court by its impugned judgment, came to the conclusion that the land indicated in Ex.-1 was far off from the acquired land and, therefore, the same cannot be compared. Similarly the land indicated in Ex.-2 was of the year 1985 and was far away from the acquired land. Qua Ex.-3 pertaining to the allotment letter dated 28.02.1990 of the Housing Board, the trial court came to the conclusion that the same was of the year 1990 and the land in question was acquired in the year 1986 and, (8 of 16) [ CMA-247/1999] therefore, the same cannot be compared. Further, as the transferor and transferees of the sale deeds were not produced, the same cannot be relied on and based on the said finding, it came to be conclusion that the award of Rs.15,000/- per Bigha, did not call for any interference.
Regarding the compensation pertaining to the tress etc., based on the evidence available on record, after considering the evidence available on record, the trial court negated the enhancement.
It is apparent from the plain reading of provisions of Section 23 of the Act that in determining the amount of compensation to be awarded for land acquired, the Court has to take into consideration the market value of the land at the date of publication of notification under Section 4(1) of the Act.
In view of the said aspect, in so far as the sale deed dated 27.05.1985 (Ex.-2) relied on by the respondents is concerned, the same being after the date of notification i.e. 22.04.1982 cannot be taken into consideration.
So far as the sale deed dated 30.12.1981 (Ex.-1) is concerned, the land admeasuring 18 Biswa and a plot admeasuring 30 feet X 40 feet was transferred for a sum of Rs.20,000/- and the location of the land has been indicated as 'Sarhad Bhilwara'. The fact that 18 Biswa of land alongwith a plot of 30 feet X 40 feet was transferred by the sale deed, the said transfer deed, does not advance the cause of respondents in so far as the determination of the cost of land in question.
(9 of 16) [ CMA-247/1999] Further, even the sale deed dated 14.05.1981 produced alongwith the application under Order XLI, Rule 27 CPC, whereby land admeasuring 11 Biswa has been transferred for a sum of Rs.20,000/- to 11 persons i.e. about 1 Biswa each, the location of the land again is indicated as 'Sarhad Bhilwara' and there is no material available on record to show that the location indicated as 'Sarhad Bhilwara', is exactly the location where the land of the claimants is situated or in and around the same area.
In view thereof, even if the application filed by the respondents-claimants under Order XLI, Rule 27 CPC is to be accepted, the same in any manner does not advance the cause of the respondents. Consequently, the application, which has been filed after almost 18 years of filing of the appeal, without indicating any reason for the delay and rather during the course of the arguments, is rejected.
Coming to the submissions made by learned counsel for the respondents regarding the aspect of potentiality and award of compensation based on such potentiality, the respondent- claimant Gopal Das in his evidence as NW-1, contended that the land, which has been acquired by the housing Board, it has sold plot admeasuring 20 feet X 50 feet at Rs.12,600/- vide Ex.-3 and in 1 Bigha, there may be as many as 16 such plots and claimed that on the date of award, the value of the land would be Rs.30,000/= per Bigha, however the claimants were only awarded a sum of Rs.15,000/- per Bigha.
In cross-examination of the said witness, only one question (10 of 16) [ CMA-247/1999] qua Ex.-3 was put that expenses has been added in the cost of the land. No evidence was produced by the Housing Board regarding the cost of land before the trial court.
A look at the award passed by the LAO as quoted hereinbefore indicates that a contention was raised by the Housing Board regarding cost of the land being Rs.6,666/- per Bigha only, however, the said rate has not been supported before the trial court and the LAO, though accepted the principle of potentiality, without giving/determining the present cost of the land and as to how much amount was being added towards potentiality, awarded a lump sum of Rs.15,000/- per Bigha.
Hon'ble Supreme Court in the case of Valliyammal (supra) while dealing with the case of Housing Board observed that the exercise undertaken for fixing market value and determination of the compensation payable to the landowner should necessarily involve consideration of escalation in land prices.
In P. Ram Reddy and Ors. v. Land Acquisition Officer, Hyderabad : (1995) 2 SCC 305, the Hon'ble Supreme Court held that market value of acquired land with building potentiality is required to be determined with reference to the material to be placed on record or made available in that regard by the parties concerned and not solely on surmises, conjectures or pure guess. In para 10 and 12, the Hon'ble Supreme Court held as under:-
"The market value of the acquired land with building potentiality is required to be determined with reference to the material to be placed on record or made available in that regard by the parties concerned and not solely on surmises, conjectures or pure guess. (para 12) (11 of 16) [ CMA-247/1999] Market value of the acquired land with building potentiality comprises of the market value of the land having regard to the use to which it was put on the relevant date envisaged under Section 4(1) of the LA Act plus the increase in that market value because of the possibility of the acquired land being used for putting up buildings, in the immediate or near future. If there is any other land with building potentiality similar to the acquired land which had been sold for a price obtained by a willing seller from a willing purchaser, such price could be taken to be the market value of the acquired land, in that, it would have comprised of the market value as was being actually used plus increase in price attributable to its building potentiality. If the prices fetched by sale of similar land with building potentiality in the neighbourhood or vicinity of the acquired lands with building potentiality, as on the relevant date envisaged under Section 4(1) of the LA Act, are unavailable, it becomes necessary to find out whether any building plots laid out in a land simlar to the acquired land had been sold by a willing seller to a willing buyer on or nearabout the relevant date under Section 4 (1) when the acquired land had been proposed for acquisition and then to find out what would be the price which the acquired land would have fetched if it had been sold by making it into building plots similar to those sold. In other words, a hypothetical layout of building plots in the acquired land similar to that of the layout of building plots actually made in the other similar land, has to be prepared, and the price fetched by sale of building plots in the layout actually made should form the basis for fixing the total price of the acquired land with building potentiality to be got if plots similar to other plots had been made in the latter land and sold by taking into account plus factors and minus factors involved in the process."
Further, upholding the discretion to apply guesstimate when sufficient evidence is not available for determining the market value and how such discretion should be applied was determined by Hon'ble Supreme Court in the case of Trishala Jain and Anr. v State of Uttaranchal and Anr.: (2011) 6 SCC 47, wherein it was laid down as under:-
"More often than not, it is not possible to fix the compensation with exactitude or arithmetic accuracy. Depending on the facts and circumstances of the case, the court may have to take recourse to some guesswork while determining the fair market value of the land and the consequential amount of compensation that is required to be paid to the persons interested in the acquired land. (Para 56) (12 of 16) [ CMA-247/1999] The concept of "guesswork" is not unknown to various fields of law. It has been applied in cases relating to insurance, taxation, compensation under the Motor Vehicles Act as well as under the Labour Laws. 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. 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, method 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. (Para 63) 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. This principle is only intended to bridge the gap between the calculated compensation and the actual compensation that the claimants may be entitled to receive as per the facts of a given case to meet the ends of justice.
Principles controlling the application of "guesstimate"
are :
(a) Wherever the evidence produced by the parties is not sufficient to determine the compensation with exactitude, this principle can be resorted 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 date 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. (Para 65)"
In the case of A. Natesam Pillai v. Special Tehsildar : (2010) 9 SCC 118, the Apex Court held that deduction in valuation of large tracts of land where exemplar land is a small plot is permissible. Applying the principles of potentiality of acquired land, the Hon'ble Supreme Court held that High Court was not justified in reducing compensation from Rs.11 per sq. ft. to Rs. 9 per st. ft. In para 22 to 27 of the said judgment, the Hon'ble Supreme Court held as under:-
(13 of 16) [ CMA-247/1999] "22. Therefore, it is clear from the aforementioned decisions of this Court that the potentiality of the acquired land, insofar as it relates to the use to which it is reasonably capable of being put in the immediate or near future, must be given due consideration.
23. The present acquired land has all the potentiality to be used as building sites, even in the immediate future, as it is located at a place in and around which building activity has already started. The evidence on record also clearly indicates that the acquired land is abutting the main road. The acquired land is also surrounded by schools, Panchayat Union Office, shops and residential buildings on all three sides. The High Court also found, as a matter of fact, that the area where the acquired land is situated is fit for construction of houses. On an overall consideration and appreciation of the records, we feel that the deduction due to the small size of the exemplar land can easily be set off with the corresponding increase in price of the acquired land when compared with the land in Ext.A-3 from the point of view of potential value.
24. Although it is true that the land covered by Ext.A-3 is a small tract of land and therefore, cannot be compared in size with the large area of land acquired under the present notification, it is to be concluded that the land in question would definitely fetch a higher price than what is fixed by the High Court. A prospective purchaser would only be too willing to pay for the acquired land having immediately potentiality of being used as a residential site in a prime locale at almost the same, if not, higher price than the land covered by Ext.A-3 which is located outside the municipality area.
25. We are in agreement with the conclusion of the High Court that the acquisition of a large tract of land merits a discount in compensation. However, in the present circumstance, it is significant to note that the compensation granted by the High Court does not match the potentiality of the land, even after the discount has been taken into consideration. Even on giving a discount in respect of the acquired land being a large tract as compared to the small portion of land sold under Ext.A-3, according to us, the arte of Rs.11 would be adequate and just compensation for the same.
26. In our considered, by scaling down the rate of compensation to Rs.9 from Rs.11 per sq. foot, the High Court denied just and reasonable compensation to the appellant, thereby resulting in a miscarriage of justice.
27. We, therefore, hold that the appellant shall be entitled to compensation at Rs.11 per square foot for the acquired land which we consider to be just and fair.
Needless to say that the State shall also be liable to pay additional compensation and solatium on the amount enhanced and fixed in terms of this order including payment of interest in terms of the rate of interest awarded by the Reference Court. The appeal (14 of 16) [ CMA-247/1999] stands allowed to the aforesaid extent without any costs."
In view of the above, it is clear that the market value has to be determined w.e.f. to the date of notification under Section 4(1) of the Act and the market value should be based on evidence led by the parties in reference proceedings, which have to be treated as original jurisdiction proceedings as laid down in Sagunthala Thr. LRs. V. Special Tahsildar (L.A.) & Ors.: AIR 2010 SC 984 and some amount of guess work can be made by the Court by fair use of discretion, but no surmises or wild guess work can be applied to arrive at so called 'Realistic Market Value'. The potentiality of the land acquired can be taken into consideration also and is relevant factor and the burden is on the claimant to prove such potentiality before the reference Court.
In view of the above state of affairs regarding the potentiality of the land in question and uncontroverted evidence by way of Ex.-3 produced by the claimants-respondents regarding the sale of land by the appellant-Housing Board, of course after developing the same, the award of compensation by the LAO at Rs.15,000/- per Bigha, without (as already observed hereinbefore) indicating any basis for reaching the said amount, though taking into consideration the potentiality and the fact that neither any evidence was led by the Housing Board nor the claimant-witness was cross-examined on the said aspect before the trial court and the fact that the trial court did not deal with the said aspect of potentiality in a proper perspective, the award of compensation at (15 of 16) [ CMA-247/1999] Rs.15,000/- per Bigha appears to the on the lower side and, therefore, in the circumstances of the case, though no precise mathematical calculation can be made qua the potentiality, the compensation towards cost of land per Bigha deserves to be enhanced from Rs.15,000/- per Bigha to Rs.22,500/- per Bigha.
So far as the compensation for the various trees including the Mango trees and the well is concerned, the LAO and the trial court, have dealt with the said aspect elaborately. Except for producing few photographs claiming compensation at enhanced rate, no further material has been produced on record so as to seek enhancement of compensation for the trees and the well. Consequently, the enhancement sought in the cross-objections qua the trees and well has no substance and the same is, therefore, rejected.
Consequently, while the appeal filed by the appellant- Housing Board is dismissed, the cross-objections filed by the respondents-cross-objectors are partly allowed. The judgment dated 17.12.1998 passed by the Civil Judge (Sr. Division), Bhilwara is modified to the extent that the amount of compensation towards cost of land is enhanced from Rs.15,000/- per Bigha to Rs.22,500/- per Bigha. The respondents-cross- objectors would also be entitled to amounts under Section 23(1A) and (2) of the Act and interest under Section 28 of the Act on the said amount of enhanced compensation.
No order as to costs.
(ARUN BHANSALI)J. (16 of 16) [ CMA-247/1999] PKS