Patna High Court
State Of Bihar vs Rameshwar Singh on 14 August, 1972
Equivalent citations: AIR1973PAT123, AIR 1973 PATNA 123, 1973 BLJR 137 ILR (1973) 52 PAT 386, ILR (1973) 52 PAT 386
JUDGMENT
1. This appeal by the State of Bihar is directed against an award in a land acquisition case. The Awardee has also filed a cross-objection.
2. Two land acquisition reference cases were disposed of by the Court below by a common judgment which is under appeal, but the appeal relates only to the subject-matter of Land Acquisition Case No. 117 of 1961. The area under acquisition was 9.5 decimals in Plot. Nos. 204, 211, 212, 214 and 220 in village Sirsia in the district of Saran for construction of a bandh known as Sondhi Bandh. The notification under Section 4 of the Land Acquisition Act (hereinafter referred to as 'the Act') was published on the 7th December, 1955, and the publication under Section 6 of the Act was made on the 15th July, 1959.
3. The claim of the Awardee was at the rate of Rs. 1,000/- per katha for the land, Rs. 60,000/- for the building standing thereon and Rs. 2,000/- for a well. The Collector awarded compensation of Rs. 101.65 p. for the land at the rate of Rs. 1070/- per acre, Rs. 1860/- for the building and nothing for the well. He also awarded solatium at the rate of 15 per cent of the said compensation. The learned Land Acquisition Judge has raised the compensation of the land to Rs. 166.25 P. at the rate of Rs. 1750/- per acre. He has also raised the compensation for the building to Rs. 18,000/-. He has agreed with the Collector that the Awardee was not entitled to anything for the well inasmuch as it stands on Plot No. 216 which is not under acquisition. He has further ordered for solatium at the rate of 15 per cent of the compensation and interest pendente lite and future at the rate of 6 per cent on the amount in excess of the compensation allowed by the Collector.
4. Mr. Shushil Kumar Jha, Government Pleader No. 1 appearing for the State, has pressed the appeal only in respect of the compensation for the building. He has submitted that the entire building was not under acquisition. Even according to the Awardee, only less than half of the building was under acquisition and the court below has erred in reducing only 25 per cent of the valuation fixed by the Pleader Commissioner. On the other hand, Mr. Gupteshwar Prasad, appearing for the respondent, has contended that on account of the acquisition, the entire building has been rendered useless and, therefore, the court below has erred in reducing the compensation than what was fixed by the Pleader Commissioner in his report. In our opinion, taking everything into consideration, the amount of Rs. 18,000/- as compensation for the building appears to be just and proper, but not for the reasons given by the Court below. The main building stands on four plots, namely, Plot Nos. 211, 212, 214 and 215. The Awardee who has examined himself as A. W. 8 has admitted that the building covers about 1 1/2 katha of Plot No. 215 which is not under acquisition. He has further said that while the value of the entire building is Rs. 65,000/-, the value of the portion of it which is under acquisition is only Rs. 30,000/-. Thus, according to his own case, the value of the acquired portion of the building should be 7:13 of the value of the entire building. The Commissioner has fixed the valuation of the entire building at Rupees 36,176.12 P. On that basis, the value of the portion of the building under acquisition will be roughly about Rs. 15,000/-. The Court below has deducted 10 per cent of the valuation on the ground that the materials used in the building cannot be of the same standard as of the materials supposed to be used in Government buildings. Mr. Gupteshwar Prasad has criticised this deduction, but we think that the standards of materials used in villages are not the same as those used in buildings in towns. Therefore, if 10 per cent of Rs. 15,000/- is deducted, the balance will come to Rs. 13,500/-. The house was admittedly constructed about 15 years ago. Some deduction has also, therefore, to be made on account of depreciation in its value. We propose to deduct Rs. 1,500/- on that account Thus the value of the building under acquisition will be only Rs. 12,000/-. However, the Awardee will also be entitled to compensation for damage sustained by him by reason of severing the land acquired from his other land and also by reason of injuriously affecting his other property. The Pleader Commissioner was asked by the Court below to expressly report whether the building in question would become useless for residential purpose of the Awardee after the Government took only a portion of it and demolished that portion. The Pleader Commissioner reported that the whole building would have to be demolished. However, the Awardee in his evidence stated that after portion of his land and the building was acquired, his building would be badly damaged and destroyed and may be unfit for living. His own evidence thus shows that the building will not be rendered entirely unfit for occupation. Keeping this in view, we are of the opinion that the Awardee is entitled to 50 per cent of the value of the building acquired as compensation for the damage sustained by him on account of severing the land under acquisition from other land and on account of injuriously affecting his other property. So adding 50 per cent to Rs. 12,000/-, the amount of compensation will be the lame, namely, Rs. 18,000/-.
5. Mr. Gupteshwar Prasad in support of the cross-objection has also urged that the compensation awarded by the learned Land Acquisition Judge was too low and based on no reliable material. The Court below has relied on Ext. A, a deed of sale dated the 22nd July, 1955. This sale was in respect of cultivable lands and as the land acquired was homestead he has added 100 per cent more to it. While relying on Ext. A, the court below has completely missed to take note of Ext 5. The purchaser under Ext. A filed an application for mutation of his name on the basis of the aforesaid sale deed. The Circle Officer before whom the application was made, in his order (Ext 5) held that the transferee had no locus standi to make the transfer and, therefore, dismissed the petition. In other words, the Circle Officer held that the sale deed (Ext A) was not a genuine one. There are no materials on the record to show that the transferee got this order set aside by a competent court of law. No reliance can be placed on such a sale deed which is not genuine for fixing compensation under the Land Acquisition Act, There is no other document on the record which may be of any real assistance in fixing the market value of the land except Ext. 4, a sale deed dated the 21st December, 1956 executed by Ramashrey Singh and others in favour of Kanhaiya Prasad. This sale deed was executed one year after the notification under Section 4 of the Act It was contended by learned Counsel for the appellant that as this sale deed was executed after the notification, it should not be taken into consideration. True it is that generally documents which are executed after notification are not considered in fixing the valuation, but there is no absolute bar to taking such documents into consideration. Here, as already stated, no other document is available. The acquisition was only for the purpose of constructing a bandh and there is no material on the record on the basis of which it can be said that the price of lands in the locality was likely to go up on account of construction of that bandh. There also no material on the record to show that really there was any increase in the price of lands in the locality between the date of notification and the date of sale-deed or that the sale deed is collusive. In the circumstances, in our opinion, this sale-deed can be taken into consideration in fixing the valuation of the land under acquisition. This sale deed was also in respect of homestead land (Plot No. 230) which is near the land under acquisition. The sale rate under this sale deed (Ext. 4) works out at Rs. 175/- per decimal. In our opinion, the respondent is entitled to compensation for the land (excluding the building) at that rate. We accordingly fix the Valuation of the land excluding the building at the aforesaid rate.
6. The next question which arises fop consideration in the appeal is as to the solatium, that is, the statutory compensation to be granted under Section 23 (2) of the Act. Section 23 (2) runs as follows:
"In addition to the market-value of the land, as above provided, the Court shall in every case award a sum of fifteen per centum on such market-value, in consideration of the compulsory nature of the acquisition."
Section 23 (1) of the Act consists of six clauses. The expression 'market-value' has been used only in the first clause and not in other five clauses. Under this clause, the market-value of the land is to be determined with reference to the date of publication of the notification under Section 4 (1) of the Act Section 3 (a) defines 'land' as follows:
'The expression "land" includes benefits to arise out of land, and things attached to the earth or permanently fastened to anything attached to the earth".
A building is attached to the earth and, therefore, for the purposes of the Act it is covered by the definition of land and solatium has to be paid on the market value of the building acquired. Thus there can be no doubt that the respondent is entitled to statutory compensation so far as the market value of the land excluding the building at the rate of Rs. 175/- per decimal is concerned and also on the market value of the building under acquisition which has been fixed by us at Rs. 12,000/-. The real question is whether he is entitled to statutory compensation on Rs. 6,000/- which, according to us, he is entitled as damages under clauses 'thirdly' and 'fourthly' of Section 23 (1). On a plain reading of Section 23 (2) of the Act, in our opinion he is not entitled to statutory compensation on the said amount of Rs. 6,000/-. The question whether statutory compensation can be granted for damages paid under various clauses of Subsection (1) of Section 23 other than the first clause has been considered in some of the decisions of various High Courts. We now propose to briefly deal with them.
7. In Maharaja Sir Rameshwar Singh v. Secy. of State for India in Council, (1910) 12 Cal LJ 56, on concession of Counsel for the other side, it was held that under Section 23 of the Act, statutory allowance is payable only upon the market value of land. In Sub-Collector of Godavari v. Sera-gam Subbarayadu, (1907) ULR 30 Mad 151 it was held that trees are things attached to the earth and thus included in the definition of land in Section 3 (a) of the Act; and this definition must be applied in the construction of Section 23 of the Act. On this interpretation, statutory compensation was allowed on the market value of the trees as well. Difficulty, however, arises on account of clause 'secondly' of Section 23 (1) of the Act according to which damage sustained by the person interested, by reason of the taking of any standing crops or trees which may be on the land at the time of the Collector's taking possession thereof has also to be taken into consideration in determining the amount of compensation. It was contended before their Lordships of the Madras High Court that statutory compensation should not be allowed on the value of the trees as their value was to be determined under Sub-section (1) of Section 23. The contention was not accepted by their Lordships and they observed as follows:--
"..... That clause refers to damage sustained by reason of the taking of standing crops or trees which may be on the land at the time of the Collector's taking possession thereof, and cannot, without a misuse of language, be applied to a case of purchase of land with trees upon it. In such a case if the price is fair no damage is sustained by either party.
We think the clause may be applied to the case provided for in Section 17 when the Collector takes possession before award, and the owner of the land declines to accept the sum then offered as payment for the crops or trees taken, or possibly, as suggested for the respondent, to the case of crops or trees grown after the date of the declaration under Section 6, the date with reference to which the market value has to be estimated."
In Krishna Bai v. Secy. of State for India in Council, ILR 42 All 555 = (AIR 1920 All 101) also statutory compensation was allowed on value of timber which stood on the land acquired. That decision and the aforesaid decision of the Madras High Court were considered by the Allahabad High Court in Collector of Bareilly v. Sultan Ahmad Khan, ILR 48 All 498 = (AIR 1926 All 689). In this case their Lordships of the Allahabad High Court pointed out that what was awarded under Clause 2 of Sub-section (2) of Section 23 was not the value of trees but compensation for the taking away of trees. According to them, that meant that in addition to the prevailing market value of the land and trees to be awarded by the Collector, he had to award something for the potential value of the trees taken away; that was subject-matter of second clause and on that potential value 15 per cent was not to be allowed. In a Bench decision of the Madras High Court in State of Madras v. Balaji Chettiar, AIR 1959 Mad 16 it has been observed:
"Further, Section 23 (1) deals with no less than six things which may be taken into consideration for the purpose of awarding compensation. But only the first item relates to the market value, and only that item is covered by Section 23 (2) and the 15 per cent solatium. It will be strange indeed if Section 23 (2) which relates only to an addition regarding one of the six factors in Section 23 (1) is to be considered as an integral part of Section 23 (1)".
8. It is manifest from the observations made and rule laid down in these decisions, which are consistent with the language of Sub-section (2) of Section 23, that statutory compensation cannot be allowed on damage to be paid to the person whose land is acquired under clauses 'thirdly' and 'fourthly' of Section 23 (1). Really the damage awarded under these two clauses is not in respect of the land under acquisition but on account of damage and injury done to other land and property of the awardee. Though we are not directly concerned with clause 'secondly' of Section 23 (1) in this appeal, we would like to observe that there may be cases where the market value of the trees is fixed with reference to the date of publication of the notification under Section 4 of the Act, under the first clause, but trees become of greater value after the period and before the time of the Collector's taking possession thereof. The awardee shall, be entitled to further damages for the trees in such circumstance under clause 'secondly'. We accordingly hold that the respondent to this appeal is not entitled to statutory compensation on Rs. 6,000/-.
9. In the result, both the appeal and cross-objection are allowed in part. The respondent shall be entitled to compensation for the building as ordered in paragraph 4 and for the land as ordered in paragraph 5 of this judgment. He will also be entitled to statutory compensation as ordered in paragraph 6 of this judgment. Let an award be prepared accordingly. In the circumstances, parties shall bear their own costs so far as this court is concerned.