Union Of India vs Afsar on 6 September, 2017

[Cites 7, Cited by 6]

Madhya Pradesh High Court

Union Of India vs Afsar on 6 September, 2017

Since a common question is involved in these first appeals and, therefore, they are heard together and are being 2 disposed of by a common order. For convenience, I narrate the facts from F.A. No.106/2016.

2. This appeal under Section 54 of the Land Acquisition Act, 1894 has been filed by the Union of India against the award dated 21.12.2013, passed by the First Additional District Judge, Mhow, Indore in reference Case No.109 of 2013 by which reference Court has held that respondent No.1 is entitled Rs.10,619/- as compensation of house, 30% solatium, 12% interest from the date of notification till the award is passed, proposed amount (Pratipadit Rashi) for a period of one year, solatium from the date of possession of acquired house, additional amount @ 9% and thereafter, 15% annual interest as per para 30 of the impugned award.

3. The facts of the case are that the total land ad- measuring 4827.63 hectares of 23 Villages were acquired in the year 1993 by the appellant--Union of India for establishing two firing ranges, namely, 'Berchha and Hema Field Firing Range' for the artillery wing for the Army. On 30th December, 1993, L.A.O. passed the award under Section 23 of the Land Acquisition Act, 1894 and awarded Rs.10,619/- towards house and open land over which the house was built. He dissatisfied with the aforesaid award, filed an application under Section 18 of the Land Acquisition Act before the Collector, who in turn referred the matter to the learned Trial Court.

4. It is not in dispute that the Land Acquisition Officer determined the market value as on date of notification issued under Section 4 of the Act. The Land Acquisition Officer 3 while determining the market value, passed an award directing deduction of the depreciation @ 5%. The Land Acquisition Officer further directed deduction of 50% from the amount of compensation so determined on the ground that the respondent No.1/claimant was entitled to remove the material.

5. Against the award passed by the L.A.O, a reference was made at the instance of respondents/claimants. Reference Court directed to pay full amount of compensation except 5% depreciation. The appeal filed by the appellant/State vide appeal No.287/1997 has been finally decided on 23.3.1999. Along with the aforesaid order number of appeals were dismissed. The Union of India challenged the said order passed in the present appeal as well as in other identical cases and total 136 special leave petitions were filed before the Apex Court.

6. On 17.12.2013, the Hon'ble Supreme Court in Appeal (Civil) No.9937/2003 in the case of Union of India vs. Savjiram and another reported in AIR 2004 SC 4532 remanded the matter to the reference Court to decide afresh. Paras 17 and 18 are relevant which reads as under:-

"17. According to the Union, the option was given to the owners and they had in fact removed the materials. This assertion is disputed by learned counsel for the claimants. According to him, considering the large number of persons whose lands were required, there is no question of any removal of the articles and deduction as contemplated in paras 43 and 44 of the Manual. In any event, when acquisition is of the land with infrastructure, there is no scope for making further deduction.

18. Whether the option of removal was given to the owner of the land is a question which has to be factually decided. The appellant has placed on record a letter issued by the concerned authorities showing that such option of removal was given. On affidavit it has further been stated 4 that the materials were in fact removed. This assertion, as noted above, is seriously disputed by learned counsel for the claimants. Both the Reference Court and the High Court do not appear to have taken note of the documents on which reliance is placed by the Union and objectively considered the claims, in detail. In the fitness of things therefore, the Reference Court should decide as to whether there was any removal of the materials as claimed by the appellants or there was no removal as asserted by the claimants- respondents. Since the matter is pending for a long time, it would be proper if the Reference Court decides this question alone permitting the parties to place materials and/or evidence in support of their respective stands as to the removal of the materials alone. After giving proper opportunities a fresh decision shall be taken by the Reference Court. We make it clear that we have not expressed any opinion on the merits of the case so far as that issue is concerned. The appeals are allowed to the aforesaid extent and the matter is remitted back to the Reference Court for adjudicating the limited question as indicated by us (supra) as expeditiously as possible, without delay. There shall be no order as to costs."

7. After remand the reference Court recorded the statement of witnesses of the parties. No oral or documentary evidence was produced by the Union of India and Government of Madhya Pradesh to show the valuation of the materials nor anything was on record to prove as to whether respondent - house owner remove the said materials. Learned reference Court has held that respondent No.1 is entitled for compensation as per valuation report of PWD Engineer. (AW/1) Cheetar in his statement has very categorically stated that he had not removed the materials.

8. As per valuation report Ex.P/1 the value of the house was Rs.10,619/-. This valuation was taken on the date when the valuation report was made. No evidence was produced by applicant about the valuation of materials or that the respondent No.1 had removed the materials and, therefore, on the basis of evidence of the parties, the learned reference Court came to the conclusion that the respondent No.1 is 5 entitled for compensation as per valuation report (Ex.P/1) and awarded compensation, accordingly.

9. Shri Deepak Rawal, learned A.S.G. for the appellant has drawn my attention to Clause 43 and 44 of the Manual and submitted that permission was granted to the respondent to remove the materials but he failed to remove the same and therefore, he is not entitled for compensation on the basis of valuation report.

10. In reply, Shri O. P. Arya, learned Counsel has submitted that this question has been considered by the Co-ordinate Bench of this Court in First Appeal No.285 of 1997 decided on 28.6.2008.

11. The learned reference Court in compliance to the order of the Apex Court in the case of Union of India vs. Shavjiram and another (supra) granted opportunity to the parties to adduce oral evidence and thereafter, gave the following findings which reads as under:-

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30& vr% mDr foospu ds vk/kkj ij ;g jsQjasl vkosnu vkaf'kd :i ls Lohdkj fd;k tkdj fuEukuqlkj vf/k&fu.kZ; ikfjr fd;k tkrk gS %& 01& vkosnd vukosnd dzekad 01 ls izfrdj ds :i esa dqy 10]619@& :i;s ikus dk ik= gSA 02& vkosnd mDr jkf'k ij 30 izfr'kr lksysf'k;e jkf'k Hkh izkIr djus dk vf/kdkjh gSA 03& vkosnd vf/klwpuk izdk'ku dh fnukad ls vokMZ fnukad rd

12 izfr'kr C;kt Hkh ikus dk vf/kdkjh gSA 04& vukosnd dzekad 01 vftZr edku dk vkf/kiR; izkIr djus ds ,d o"kZ dh vof/k rd izfrikfnr jkf'k o lksysf'k;e jkf'k o vfrfjDr jkf'k ij 09 izfr'kr okf"kZd C;kt nj ls rr i'pkr 15 izfr'kr okf"kZd C;kt nj ls vkosnd dks C;kt Hkh vnk djsxkA 05& mDr vokMZ jkf'k ls tks jkf'k vkosnd izkIr dj pqdh gS og de dh tkdj 'ks"k jkf'k] lksysf'k;e jkf'k e; C;kt ds 02 ekg esa Hkqxrku gksA 06& mDr vf/k&fu.kZ; dh izfr vukosnd dz- 01 dks fu% 'kqYd iznku dh tkosaA 07& vkosnd dk okn O;; vukosnd dzekad 01 ogu djsxkA 08& vf/koDrk 'kqYd izekf.kr gksus ij lwph vuqlkj vFkok 1500@& :i;s tks Hkh de gks fnyk;k tkosaA 09& mDr vuqlkj O;; rkfydk cukbZ tkosaA 10& izdj.k lekIrA vfHkys[kkxkj esa Hkstk tkosaA"

12. In First Appeal No.285 of 1997 the Co-ordinate Bench of this court dismissed the appeal and held as :-

" 2. Appellant owned three houses in village Bhardala Tahsil Mhow. Land was required for firing range of Respondent No.2. Therefore, house sights belonging to appellant were required under the provisions of Land Acquisition Act (for short the Act). It is not disputed that the Land Acquisition Officer (LAO) determined the market value as on date of Notification issued under Section 4 of the Act. The LAO while determining the market value, passed an award directing deduction of depreciation @ 5%. The LAO further directed deduction of 50% from the amount of compensation so determined on the ground that the appellant claimant was entitled to remove the material. Against the award passed by the LAO, a reference was made at the instance of appellant claimant. Reference Court directed respondents to pay full amount of compensation except 5% depreciation. It is against the award passed by the Reference Court, present appeal has been preferred.

3. Learned Counsel for appellant submitted that the Reference Court committed an error in deducting 5% depreciation in value of the property. In this connection he has placed reliance on decision of the Supreme Court in (2004) 1 Land Acquisition & Compensation- Cases Union of India Vs. Shivramji & another. A careful reading of the said decision of the Supreme Court reveals that the contention of the respondents that they were entitled to deduct 5% depreciation was not upheld by the Supreme Court in respect of the similar house sight situated in same village which was acquired for the purpose of construction of firing range of Respondent No.2. In view of this decision of the Supreme Court, therefore, it is difficult to hold that the Reference Court was justified in maintaining the deduction of 5% on account of depreciation of value of property.

4. Another contention urged by the learned Counsel for appellant was that he was entitled to get compensation at the rate of Rs.25/- per sq. ft. in respect of land on which houses were built. Learned Counsel for the appellant fairly conceded that there was no documentary evidence and contention is based upon oral evidence adduced by the appellant claimant. In absence of any documentary evidence it is not possible to hold that appellant was entitled to get compensation at the rate of Rs.25/- per sq.ft. No other point was urged.

5. Thus, in view of foregoing discussion this appeal is partly allowed and it is held that the respondents are not entitled to deduct 5% towards depreciation of value of property and appellant is entitled to get said amount in respect of the property acquired by the respondents. Thus, respondent Union of India shall pay to the appellant 5% amount deducted towards depreciation of the value of property together with statutory benefits including interest in respect of said amount within three months from today.

6. Thus, appeal is partly allowed to the extent 8 indicated herein above. However, there shall be no order as to the costs."

13. Paras 43 and 44 of the Land Acquisition Manual of Madhya Pradesh reads as under:-

"43: If any house, building or trees standing on the land to be acquired should not be required by the Government, the owner may be allowed the option of removing it within a reasonable period, to be fixed by the Collector, in which case the value of such materials, as determined in the award, will be deducted from the sum payable as compensation, or if compensation has been already paid will be recovered from the owner prior to the removal of the materials.

44: Compensation for houses or buildings should be calculated on the present value of the materials plus cost of construction at present rates, less the value of any materials made over to the proprietor:

Provided that, if the buildings have fallen into disuse, compensation should be allowed on the present value of the materials only. Separate compensation should be given for the land on which the buildings stand.

When, however, the building and its site together constitute a single property, having a market value as a whole it is unnecessary to go into details of cost of construction, value of materials and value of site. The market value of the property as a whole can be ascertained with reference to the rent that it brings in to the owner, or with reference to the ascertained sale price of similar buildings and their sites".

A bare reading of para 44 shows that it is a method of calculation indicated relating to the computation of the compensation. The compensation for houses and buildings are required to be calculated on (a) the present value of materials

(b) in addition to the cost of construction at present rates. Both the components for working out the compensation relate to present value of the materials and cost of construction at present rates less the value of any materials made over to the proprietor. Obviously, the calculation has to be done on the basis of the present value or the present rates, as the case may be. The expression 'present' means in existence at the time at which something is spoken or written, being in a specified place, thing. Grammatically, it means denoting a tense of verbs used when the action or event described is occurring at the time of utterance or when the speaker does not wish to make any explicit temporal reference. It also means the time being, now. Commonly, it denotes existence of a particular thing or a matter at the time of consideration. Obviously therefore after arriving at the cost of construction at the prevalent rate at the time of 9 fixing the compensation or working out the value of the materials there is no scope for making any further deduction."

14. In the present case, the appellant and respondent No.2 have not recorded their statements, nor they filed any documents, nor as per para 43 of the Manual any report that the house, building or trees standing on the land are required by the Government or not, and in case it is not required the option of removal is given. As per paras 43 and 44 the Government has to take a decision whether the house and buildings standing on the land are required by the Government. In case, it is not required, the owner is allowed the option to remove the house and buildings as the case may be, within a reasonable period. The period has to be fixed by the Collector and the value of the materials removed is to be determined in the award. The amount determined has to be deducted from the sum payable as compensation, in case it has not been paid; and if it has already been paid, then there shall be recovery of the amount from the owner prior to the removal of the materials.

15. In the earlier round of litigation, the appellant--Union of India had stated on oath that the materials were in fact removed. This was seriously disputed by the learned Counsel for the claimant and as no findings was recorded on this issue and, therefore, the matter was remanded to the reference Court.

16. Before the learned reference Court neither the Union of India nor the State Government have examined any witness to prove the fact what they have stated on oath before the Hon'ble Supreme Court.

17. In view of the specific findings recorded by the reference Court in paras 21 and 22 of the impugned order, it is impossible to hold that any order was passed directing the claimants to remove the materials, nor any valuation of the material was done and claimants have removed the aforesaid materials. During the course of hearing also the Union of India and the respondent No.2 failed to show any record to prove the same.

18. Thus, in view of foregoing discussion, appeals filed by the Union of India have no merit and are, accordingly, dismissed. Thus, appellant--Union of India shall pay amount as awarded by the learned reference Court with statutory benefits including interest etc. as awarded by the learned reference Court vide impugned order, within a period of three months from today.

In result, F.A. No.106 of 2016, F.A. No.92 of 2016 F.A. No.95 of 2016 and F.A. No.107 of 2016 are dismissed. However, there shall be no order as to costs.

(P. K. Jaiswal) Judge pp

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Madhya Pradesh High Court