Madhya Pradesh High Court
Resham Bai vs The State Of M.P. on 12 January, 2017
HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE
(DIVISION BENCH OF HON'BLE JUSTICE SHRI P.K.
JAISWAL & HON'BLE SHRI VIRENDER SINGH, JJ.)
First Appeal No.886/2000
Bharat Singh
v/s.
The State of Madhya Pradesh & Ors.
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Shri O.P. Arya and Shri Lokesh Arya, learned counsel for
the appellant.
Shri Piyush Jain, learned Govt. Advocate for the
respondent/State.
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JUDGMENT
( 12.01.2017) Per P.K. JAISWAL, J : -
The decision rendered in this appeal shall also govern the disposal of connected appeals bearing F.A. Nos.31/2001, 20/2001, 21/2001, 24/2001, 26/2001, 27/2001, 30/2001 and 255/2001.
2. By this common judgment, we propose to dispose of the aforenoted nine bunch of first appeals as they arise out of the same proceedings. For the sake of convenience the facts are borrowed from F.A. No.886/2000(Bharat Singh Vs. State of Madhya Pradesh).
3. The appellant/claimant has filed this appeal against the award dated 1/08/2000, passed by the Additional District Judge, Khachrod, District Ujjain in MJC No.44/96 by which reference petition filed by the appellant for enhancement of compensation under Section 18 of the Land Acquisition Act, 1894(in short ...
"the Act") has been partly allowed. The Reference Court awarded Rs. 30,000/- per hectare for irrigated land and Rs.20,000/- per hectare of unirrigated land with 30% solatium and statutory interest at the rate of 12% per annum from the date of award. On reference under Section 18 of the Act, the Reference Court enhanced the market price of the acquired lands and passed award in favour of the appellant.
4. The facts of the case are that for construction of Bagla Tank, the respondent No.1/State Government issued a Notification under Section 4(1) read with Section 17 of the Land Acquisition Act, 1894 on 13/12/1991 with regard to acquisition of land 60.833 hectares in village - Bagla, Bharkhanda, Kundala, Nagfiri and Piploda Sagoti Mata of Tehsil Khachrod, District Dhar.
5. Final publication of Section 4(1) Notification was made on 27/12/1991. The declaration under Section (6) was made on 7/02/1992. On 5/02/1994, the Land Acquisition Officer awarded compensation @ Rs. 13,514.00 per hectare for unirrigated land and 25% more of the aforesaid amount for irrigation in respect of village Bagla, Rs.14,247.00 per hectare in respect of village Bharkanda, Rs.17,812 per hectare for village Kubndala, Rs.17,454.00 in respect of village Nagfiri and in respect of village Piploda Sagoti Mata Rs.18,813 per hectare and note has been appended for irrigated land 25% additional compensation over and above the price fixed by the Land Acquisition Officer.
6. In the present bunch of appeals, all the land owners are of village Bagla. Being aggrieved by the award passed by the Land Acquisition Officer, on 5/02/1994, reference under Section 18 of the Act was sent to Collector, Ujjain to the refer the matter to the District Judge, Khachrod, District Ujjain. On 25/06/1997 Reference Court dismissed the reference petition and upheld the award passed by Land Acquisition Officer on 5/02/1994. The appellant/landowner challenged the said order by filing F.A. No. 465/1997. The Division Bench of this Court considering the law laid down by the Apex Court in AIR 1997 SC 2660 by agreement of the parties, allowed the appeal vide order dated 6/03/2000 and remitted the matter back to the Reference Court for permitting the parties to lead the evidence by examining the vendor and vendees, of the instances cited before the authorities before which the documents are produced. Order dated 6.3.2000 reads as under :-
6.3.2000 In view of the latest judgment of the Supreme Court in AIR 1997 SC 2600 by agreement of the parties, allowed the appeal and remitted the matter back to the Reference Court for permitting the parties to lead the evidence by examining the vendor and vendees, of the instances cited before the authorities before which the documents are produced.
Since the order is passed on agreement without hearing the matter on merits, court fee of 75%, therefore, will be refunded to the petitioner by crossed cheque in their account. Record of court below be sent back immediately. Parties to appear before the trial Court on 17.4.2000 and the same shall be disposed off as far as possible preferrably by or before 31.8.2000. C.c
7. After remand, the appellant/landowner examined 8 witnesses and filed five sale-deeds vide Ex-P/1, P/2, P/3, P/4 and P/5 of 0.11 hectares, 0.46 hectares, 0.21 hectares, 0.41 hectares and 0.35 hectares respectively. All the aforesaid sale- deeds were executed between 29/07/1991 to 29/04/1994.
8. The respondent examined Hari Singh (NA 1), Patwari of the village and Ramesh Sisodiya(NA2), employer of Sub- Registrar Office of Tehsil Khachrod of District Dhar.
9. Hari Singh(NA1) in para - 26 of the his statement has very categorically admitted that at the time of acquisition, the market value of Unirrigated land was Rs.50,000/- per hectare.
10. Ramesh Sisodiya(NA2) on the basis of Collector's guidelines has deposed that in the year 1998-89, 89-90 and 90- 91, as per guidelines, the value of the land per hectare was Rs.11,000/-, Rs.15,000/- and Rs.17,000/- respectively. The value of irrigated land was one and a half times higher than non- irrigated land. In respect of mango Tree, he has deposed that the value was Rs.500/- per tree and Rs. 250/- per trees in respect of custard apple.
11. BharatsinghPW1) in his statement has deposed that Ex- P/1 was executed on 29/07/1991 in respect of an area of 0.11 Hectare for a consideration of Rs.10,000/-. Balusingh (PW4) and Omkarsingh(PW7) have proved the execution of sale- deeds(Ex-P/2 & P/3). All the witnesses in their statement has deposed that at the time of acquisition, the market value of land in question was Rs.60,000/- per hectare for unirrigated land and Rs.90,000/- per hectare for irrigated land.
12. The learned Tribunal considering the fact that big chunk of land i.e. 60.833 hectares was acquired for construction of pond and acquired land is not adjoining to the city, assessed at the rate of Rs.20,000/- per hectare for unirrigated land and Rs.30,000/- per hectare for irrigated land. In respect of Mango trees, he awarded Rs.500 per tree and Rs.250 per tree in respect of fifty custard apple along with interest @ 12% and solatium @ 30%.
13. Learned counsel for the appellant has submitted that Hari Sigh(NA1), Patwari, witness of respondent, in para - 26 of his statement very categorically stated that at the time of acquisition, market value of land was Rs.50,000/- per hectare for unirrigated land, and, thus, the learned Tribunal has committed an error in awarding at the rate of Rs.30,000/- per hectare. He submitted that an admission is the best evidence that an opposing party can rely upon, and, although it is not conclusive, is often decisive of the matter unless it can be successfully withdrawn or proved to be erroneous. He also submitted that the land was acquired in December, 1991. and no guidelines for the relevant period from 1991-1992 was filed by the respondents to prove the rate fixed by the Collector and submitted that the compensation be enhanced from Rs.20,000/- per hectare to Rs.50,000/- per hectare in respect of unirrigated land, on the basis of admissions made by Hari Singh(NA1)and appeal be allowed accordingly.
14. Shri Piyush Jain, learned Govt. Advocate for the respondent/State has drawn our attention to the finding recorded by the learned Reference Court and submitted that the admissions made by Patwari was considered in para - 26 of the impugned award. The Patwari, without any basis made the aforesaid statement and, therefore, the same was not relied by the learned Reference Court. He submitted that the learned reference Court considered each and every point raised by the land owners and after considering the oral and documentary evidence of the parties, awarded compensation. No case to interfere with the impugned order, as prayed is made out and prays for dismissal of the first appeal.
15. Against the similar award dated 1/08/2000, F.A. No.23/2001 was filed by the land owner. The learned Single Judge, by order dated 4th November, 2004, awarded compensation @ Rs. 45,000/- per hectare for irrigated land and Rs.30,000/- for unirrigated land. In the aforesaid appeal also same sale deeds were relied by the learned Single Judge. Para 7 to 11 of order dated 4/11/2004 passed in F.A. No.23/2001 reads as under :-
7. The main argument of the learned counsel for the appellant is that the learned Judge has committed an error of law only relying evidence of Non-applicant No.2 Ramesh Sisodiya, who was Clerk in the Registration Office in fixing the compensation of the land. There was other evidence with regard to registration of sale deeds and the oral evidence has also been overlooked by the learned Judge. Hence, the award is perverse.
8. it is well settled law that market value of the land which has to be determined on the date of Notification under Section 4(1) must reflect the true value of the property. Hon'ble Supreme Court in (2003) 4 SCC 481, Ravinder Narain and Another Vs. Union of India has discussed the concept of market value. Following the decision of AIR 1939 PC 98, Vyricheria Narayana Gajapatiraju Vs. Revenue Divisional Officer is as under :-
"While determining the market value of the land acquired, it has to be correctly unjust enrichment on the part of the acquirer Owner. The price which a willing vendor might reasonably expect to receive from the willing purchaser must be taken into consideration while at the same t6ime disinclination of the vendor to part with his land and the urgent necessity of the purchaser to buy it must be disregarded. Potentiality of land is also to be considered based on material as are available."
Learned court further considered with regard to requisites for a sale to merit consideration a comparable sale is in Para-9 of the Judgment, which is as under :-
(1) When sale is within a reasonable time of the date of notification under Section 4 (1);
(2) it should be a bonafide transaction, (3) it should be of the land acquired or of the land adjacent to the land acquired; and (4) it should possess similar advantages.
Following the judgment of Hobn'ble S.C. reported in AIR 1959 SC 429.
9. Hon'ble Supreme Court in 2003 Vo. X SCC 86 Virender Singh Vs. Union of India has held that :-
" The High Court placed strong reliance on sale deeds executed just before the award was passed. They were neither relied upon by the claimants nor by the Government, but were brought on record by the vendees who were respondents before the civil court. Those sale transactions do iot furnish real indicia of the market value of the land as the sales were effected at an advanced stage of land acquisition proceedings. such sales rushed through, for whatever reason it be, just before the award came to be passed- cannot be taken to reflect the true value of the land. Even if they are genuine, the bargaining power of the vendors who are statutorily compelled to part with the ownership and possession within close proximity of time would be limited. No reasonable and prudent purchaser would buy the land with full market value at that juncture, knowing fully well that the land is under immediate peril of acquisition. Therefore, it is not safe to placed reliance on those sale deeds for arriving at the market value of the land in question."
Hon'ble S.C. Further in 2003 Vol. 10 SCC 529 Bhim Singh and others Vs. State of Haryana and Another has held that the sale value of smaller portions cannot be relied on for the basis of determining the compensation of larger area acquired. Some deductions to be made whether on area has been acquired.
10. On the above principles laid down by Hon'ble Supreme Court it has to be seen that would be the real price of the land. Plaintiff has filed five sale deeds with regard to adjacent areas for fixing the compensation which are as under :-
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Sr. Village of Sale of Sale of Sale Average Date of No.
the Registry Rakba land & Value value Hectare Registry where it
has Value vise
beenidentified
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1. Piploda 0-11 irrigated 10,000 90,910 29-7-91
2. Piploda 0-46 non-irrigated 35,000 76,081 9-2-92
3. Nagfiri 0-21 irrigated 15,000 71,428 4-2-93
4. Bhagla 0-41 non-irrigated 16,000 38,277 24-2-92
5. Navda 0-35 non-irrigated 52,500 50,000 19-4-94
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11. It is clear from the sale deed that only one sale deed of period Piploda which is for an area of 0.11 hectare is dated 29-7-1991 and as per that sale ded the costs of the land comes to 90.910 hectare. All other sale deed are after the notification and those sale deeds cannot be relied upon and this sale deed is also for a smaller area. Hence, as per decisions of Hon'ble Supreme Court, some deductions has to be made. Looking to the value as per the sale deed, the evidence of Patwari and evidence of all other witnesses. The value of the land as per my opinion could be Rs.45,000/- per hectare for irrigated land and Rs.20,000/- for non-irrigated land. On the basis of the above findings the award is modified to the extent as follows :-
a) Defendants is to pay the appellant the compensation of land situated at village Bhagla of Survey No.5/2 and 105/2 area 1.568 hectare and 0.348 hectare, total area 1.916 hectare at the rate of Rs.30,000/- for non-
irrigated and Rs.45,000/- for irrigated land. Respondents have already paid at the rate of Rs.20,000/- for non-irrigated and Rs.30,000/- for irrigated land.
Hence, they have to pay only difference amount as compensation of the land held above.
b) Defendants would also pay, as per Section 23(2) of the Act 30% solatium on difference amount.
c) Respondents would further directed to pay the interest on difference amount with effect from 13- 12-1991 at the rate of 9% per annum.
Appeal is disposed of accordingly.
16. 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.
17. The procedure adopted by the Reference Court in assessing the market price of the irrigated lands of village Bagla is not proper. The reference Court should have assessed first the market price of the unirrigated 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 unirrigated lands, on the basis of the evidence available, is well founded and based on proper appreciation of the evidence on record. The law is well settled on the point that market price of the big plot is lesser in comparison to the market price of the smaller plots. Taking into consideration, the aforesaid facts the market price of the unirrigated lands having larger area may be assessed after deducting 20% in the market price of the lands assessed for the smaller plots.
18. 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.
19. Looking to the value as per my opinion could be Rs.45,000/- per hectare for irrigated land and Rs.30,000/- for non-irrigated land.
20. Consequently, this appeal is partly allowed and the impugned award dated 1/08/2000 is hereby set aside. The compensation is enhanced only to the extent indicated above. The appellant are in addition entitled to the compensation in terms of Section 23 of the Act and interest in view of the Section 28 of the Act, on enhanced amount of compensation. The LAO / Reference Court is directed to calculate and reassess the compensation payable to the appellant in the terms indicated above.
21. In view of the facts and circumstances of the case, parties are left to bear their own costs of this appeal.
22. A copy of the order be retained in other connected first appeals bearing F.A. Nos.31/2001, 20/2001, 21/2001, 24/2001, 26/2001, 27/2001, 30/2001 and 255/2001.
(P.K. Jaiswal) (Virender Singh)
Judge Judge
pn/