Patna High Court
Bishwa Mitra Pd.Choudhary &Ors vs The State Of Bihar on 14 December, 2012
Author: V. Nath
Bench: V. Nath
IN THE HIGH COURT OF JUDICATURE AT PATNA
First Appeal No.125 of 1996
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1. Bishwa Mitra Pd.Choudhary.
2. Ram Babu Choudhary.
3. Bharat Chaudhary.
4. Satrughan Choudhary.
5. Mahesh Choudhary, all are sons of late Paltoo Choudhary, resident of Mohalla
Jarhua Barai Tola, ward No. 13, Industrial area Hajipur Town District-Vaishali.
.... .... Appellant/s
Versus
The State of Bihar through Collector, Vaishali at Hajipur.
.... .... Respondent/s
with
First Appeal No. 126 of 1996
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1. Bishwa Mitra Pd.Choudhary.
2. Ram Babu Choudhary.
3. Bharat Chaudhary.
4. Satrughan Choudhary.
5. Mahesh Choudhary, all are sons of late Paltoo Choudhary, resident of Mohalla
Jarhua Barai Tola, ward No. 13, Industrial area Hajipur Town District-Vaishali
.... .... Appellant/s
Versus
The State of Bihar through Collector, Vaishali at Hajipur.
.... .... Respondent/s
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Appearance :
(In FA No. 125 of 1996)
For the Appellant/s : Mr. LAKSHMI KANT TIWARY, Adv.
Mr. Shiv Nath Pandey, Adv.
For the Respondent/s : Mr. J.S. Arora, Adv.
(In FA No. 126 of 1996)
For the Appellant/s : Mr. LAKSHMI KANT TIWARY
Mr. Shiv Nath Pandey
For the Respondent/s : Mr. J.S. Arora, Adv.
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CORAM: HONOURABLE MR. JUSTICE V. NATH
ORAL JUDGMENT
Date: 14-12-2012
Patna High Court FA No.125 of 1996 dt.14-12-2012
2
These two appeals by the land owners arise out of a
common judgment and award dated 6th December 1995 passed by
Sub-Judge-1st Vaishalil, Hazipur in Land Acquisition Case No. 20 of
1990 and Land Acquisition Case No. 01 of 1992. The L.A. Case No.
20 of 1990 arose on the reference against the Award No. 27 dated
06.09.1986passed in Land Acquisition Case No. 31 of 1982-83, and the L.A. Case No. 01 of 1992 arose on the reference against the Award No. 25 dated 06.09.1986 passed in the same land acquisition case. The land owners-appellants in both the appeals are the same persons whose land under different plots has been acquired by the respondent-State of Bihar. As common questions of fact and law arise, these two appeals have been heard together and are being disposed of by this judgment.
2. The notification under Section 4 of the Land Acquisition Act was published on 01.03.1993 for acquisition of the land of the appellants for the Industrial development area, Hazipur. In the land acquisition proceeding which ensued thereupon, the Award No. 25 has been passed for Rs. 2, 89, 104.15 in favour of the appellants for their acquired.5750 hectares of land of plot nos. 252, 456 and 429 of khata no. 317. By another Award No. 27, the appellants have been held entitled to Rs. 96, 787.05 for their acquired.1925 hectares of land of plot no. 257 and 283 of khata no. 625. In the awards, it has been Patna High Court FA No.125 of 1996 dt.14-12-2012 3 mentioned that no objection under Section 9 of the Land Acquisition Act was raised. The appellants filed petitions praying for reference under Section 18 of the Land Acquisition Act in both the cases claiming higher value of the acquired land and, after reference the Land Acquisition Case No. 20 of 1990 and Land Acquisition Case No. 01 of 1992 were initiated before the Land Acquisition Judge. The F.A. No. 125 of 1996 has been preferred against the judgment and award in the Land Acquisition Case no. 20 of 1990 and the F.A.126 of 1996 has been preferred against the judgment and award in the L.A. Case No. 01 of 1992.
3. In their petitions, the appellants have pointed out that even earlier to this acquisition, the respondent-State of Bihar had already acquired substantial area of their land. It has been further stated that the acquired area of the land in question was class I Bhit land having much potential value as the appellants had been growing cash crops therein. The appellants have also stated that the rate of the acquired land on the date of notification was Rs. 30,000/- per katha but the valuation assessed by the land acquisition authorities have been on much lower scale and against the prevalent sale rate in the locality.
4. The respondent-State of Bihar filed its rejoinder to the claim petitions of the appellants and asserted that the valuation of the Patna High Court FA No.125 of 1996 dt.14-12-2012 4 acquired land had been correctly assessed.
5. The Land Acquisition Judge by the impugned judgment and award has come to the conclusion that the prevalent rate of land of similar quality and adjacent to the acquired land, at the time of notification, was Rs. 5,000/- per katha and, thus, after holding that the valuation of the acquired land has been correctly assessed, has dismissed both the reference cases.
6. The learned counsel for the appellants in both the appeals has submitted that the findings recorded by the reference court is against the evidence on record and are result of misappreciation and misinterpretation of the evidence. It has been urged that the appellants in support of their claim, have adduced in evidence the sale deeds marked as Ext. 1, Ext. 1/A and Ext. C which had been executed near the date of the notification and all the sale deeds relate to the lands situated in the area of the acquired land of the appellants but the same have been wrongly discarded. The learned counsel has further submitted that those sale deeds clearly show that the rate of land in the area was Rs. 14,000/- to 18,000/- per katha at the time of notification. It has been contended that the learned court below instead has chosen to rely upon the sale deed (Ext. D) produced by the respondent although the said sale deed does not relate to the land of ward no. 13 where the acquired land is situated. The learned counsel has also Patna High Court FA No.125 of 1996 dt.14-12-2012 5 placed the depositions of the witnesses examined on behalf of the appellant to buttress his contention that the rate of land in the area was Rs. 14,000 to 18,000/- at the time of notification.
7. During the course of hearing, the learned counsel for the appellants has pressed the I.A. No. 6944 of 2012 and I.A. No. 6945 of 2012 filed on behalf of the appellants under Order 41 Rule 27 C.P.C. praying for adducing the documents annexed with the interlocutory applications as additional evidence in the two appeals. It has been pointed out that the documents at Annexure-1 is a judgment and award passed in Land Acquisition (reference) Case No. 21 of 1990 on 11.08.1995 by the same court which has passed the impugned judgment, and the document annexed as Annexure-1A is the judgment and award passed by the same court in Land Acquisition Case No. 06 of 1991 (reference) on 07.10.1994. It has been further pointed out that the judgment and award at Annexure-1 and Annexure-1A also arose out of the same land acquisition proceeding relating to lands adjacent or nearby to the appellants' acquired land as manifested by Annexure- 2 which is the map of the area. It has been submitted by the learned counsel that the appellants were earlier not aware of these judgments and awards and therefore could not produce them before the reference court. It has been further urged that the proposed documents in view of the aforesaid facts are very relevant and material for fair and just Patna High Court FA No.125 of 1996 dt.14-12-2012 6 determination of the market value of the acquired land of the appellants and should be taken in evidence in the interest of justice.
8. Per contra, the learned counsel for the respondent has submitted that the reference court has meticulously analyzed the evidence and has reached to the correct finding of fact that the assessment of the market value of the acquired land has been properly done. It has been urged that the sale deeds relied upon by the appellants are not reliable documents and it has been rightly found so by the reference court. Placing the findings of the reference court, the learned counsel has emphasized that there is no flaw in the same and no interference is required. It has also been submitted that the sale deed (Ext.D) has depicted the correct market value of the land in the vicinity of the acquired land and therefore has been rightly relied upon by the learned court below. Lastly, it has been submitted that the appellants have given a fanciful and imaginary valuation of the acquired land which must not be accepted.
9. In reply to the prayer of the appellants for adducing additional evidence, the learned counsel for the respondent has referred to para-9 of the counter affidavit filed by the respondent wherein it has been stated that the judgment and award in Land Acquisition Case No. 21 of 1990 had become final as the respondent was advised not to file an appeal against the same; and therefore the Patna High Court FA No.125 of 1996 dt.14-12-2012 7 decreetal amount had also been paid. The learned counsel, however, has pointed out that F.A. No. 116 of 1995 has been filed against the judgment and award in Land Acquisition Case No. 06 of 1991 and the said appeal is still pending. It has also been submitted that the appellants had the knowledge of the judgment and award in L.A. Case No. 20 of 1990 and L.A. Case No. 06 of 1991 and thus the prayer for adducing those two judgments and awards as additional evidence is much belated and due diligence is also wanting.
10. In view of the rival contentions on behalf of the parties, the following point emerges for determination in this appeal:-
(i) Whether the market value of the acquired land of the appellant in two appeals has been correctly assessed, and the impugned judgment and award in the two appeals are sustainable on facts as well as in law?
11. There is no dispute that the appellants' 45 katha (about) land has been acquired by the State of Bihar for the purpose of development of Industrial area in Hazipur. The Award No. 25 has been prepared with regard to .5750 hectares of land of plot no. 254, 456 and 429 of khata no. 317 and plot no. 453 of khata no. 518, and the value of the acquired land has been assessed by the land acquisition authorities to be Rs. 2, 89,104.15. Similarly, Award No. Patna High Court FA No.125 of 1996 dt.14-12-2012 8 27 relates to .1925 hectares of land of plot no. 257 and 283 of khata no. 625 and its value has been assessed by the land acquisition authorities to be Rs. 96,787.05. The learned counsel for the parties have agreed that the total area of acquired land, subject matter of both the awards, comes to about 45 katha. It is the case of the appellants that the market value of the acquired land has not been correctly assessed, and low valuation has been put by the land acquisition authorities. On the other hand, the learned counsel for the respondent has supported the value assessed by the land acquisition authorities.
12. On behalf of the appellants, three sale deeds have been adduced in evidence. The sale deed (Ext.1) has been executed on 01.10.1981 by which one katha of land in ward no.13 under Hazipur municipality has been purchased by the appellants for a sum of Rs. 13,000/-. Ext. 1/A is a sale deed dated 17.10.1981 by which an area of 12 ½ dhurs of land in ward no. 15 of Hazipur municipality has been sold for Rs. 9,000/-. The sale deed (Ext. 6) is with regard to the sale of 1 katha,10 dhurs of land of ward no. 13 in Hazipur municipality for Rs. 19,000/- and has been executed on 26.12.1981. The survey plot numbers of the lands subject matter of the sale deeds marked as Ext. 1 and Ext.1/A and Ext. C are plot no. 460, plot no. 293 and plot no. 288 respectively.
13. The appellants have examined the vendor of the sale deed Patna High Court FA No.125 of 1996 dt.14-12-2012 9 (Ext.1), namely, Anandi Choudhary as A.W.-1. He has accepted to have sold 1 katha of his land to the appellants for Rs. 13,000/-. He has further stated that the acquired land of the appellants was very fertile and located by the side of Hazipur-Jandaha road and the market value of the acquired land at that time was Rs. 14,000/- to 18,000/-. This witness has further also stated that besides him, Baidnath Choudhary had also sold land in the area at the rate of Rs. 14,000/- to 15,000/- per katha. He has stated that his 19 katha land had also been acquired but has disclosed that he had sold land to the appellants 5-6 years prior to the acquisition.
14. The A.W.-2, Sakhichand Choudhary had stated in his deposition that at the time of acquisition the rate of similar quality of land which has been acquired was Rs. 12,000/- to 14,000/-. This witness is the husband of Buni Devi who had purchased land from Baidnath Choudhary by sale deed dated 17.10.1981 marked as Ext. 1/A by which 12 ½ dhurs land of plot no. 293 had been sold for Rs. 9,000/-. The A.W.-4, Harendra Pd. Choudhary has proved the sale deed dated 17.10.1981 executed by Baidnath Choudhary in favour of Buni Devi which has been marked as Ext. 1/A. A.W.-3, Gopal Choudhary has his land adjacent to the acquired land of the appellants and he has deposed that at the time of acquisition the rate of similar land was Rs. 13,000/- 18,000/-.
Patna High Court FA No.125 of 1996 dt.14-12-2012 10
15. On behalf of the respondent-State of Bihar, no material witnesses on the issue have been examined. The valuation khatiyan (Ext. A and A/1) have been produced in support of the asserted value of the acquired land. Further sale deed dated 12.01.1982 executed by Rajendra Choudhary in support of Bhupendra Prasad and others has been brought into evidence as Ext. D by which two katha of plot no. 285 has been sold for Rs. 10,000/-.
16. At this juncture, it would be appropriate to consider the prayer of the appellants for adducing some documents as additional evidence as made in the I.A. No. 6944 of 2012 and I.A. No. 6945 of 2012. The appellants have sought to adduce in evidence the judgment and award passed in L.A. Case No. 21 of 1990 and L.A. Case No. 06 of 1991. The certified copies of the said two judgments and awards have been annexed as Annexure-1 and Annexure-1/A in I.A. No. 6945 of 2012 and the photo copies of the said documents have been annexed with the I.A. No. 6944 of 2012. Further, a map of the area under acquisition has been annexed with as Annexure-2 to show the location and position of the acquired plots subject matter of the present appeals and the acquired plots which were subject matter of the land Acquisition Case No. 21 of 1990 and L.A. Case No. 06 of 1991.
17. The case of the appellants that the land subject matter of Patna High Court FA No.125 of 1996 dt.14-12-2012 11 L.A. Case No. 21 of 1990 and L.A. Case No. 06 of 1991 had been also acquired in the same land acquisition proceeding in which their land has been acquired, has not been disputed by the respondent. From the map at annexure-2 of the interlocutory applications, it further appears that the plots subject matter of the two land acquisition cases aforesaid are near and adjacent to the lands of the appellants under acquisition and are also located in the same area. The judgment and award in L.A. Case No. 21 of 1990 (Annexure-A) has admittedly attained finality and with regard to another judgment and award in L.A. Case No. 06 of 1991, according to the respondent a first appeal is pending.
18. It is well settled that the previous judgments and awards can be relevant for determining the value of acquired land where the lands are adjoining or lie in the vicinity and the attendant facts are similar. As such the judgment and award of Land Acquisition Case No. 21 of 1990 annexed as Annexure-1 to I.A. No. 6945 of 2012 and the map annexed as Annexure-2 are accepted as additional evidence, and marked as Exts. 7 and 8 on behalf of the appellants.
19. As discussed above, the appellants have adduced the sale deed (Ext.1)whereby 1 katha of plot no. 460 has been sold for Rs. 13,000/-. From the map (Ext.8), it transpires that this plot no. 460 is also in the same area and is in close proximity with the acquired plot Patna High Court FA No.125 of 1996 dt.14-12-2012 12 no. 456. This sale deed has been executed on 01.10.1981 nearly two years prior to the notification in the present case which has been done on 01.03.1983. Further, two other sale deeds (Ext. 1/A and Ext.6) have also been executed on 07.10.1981 and 26.12.1981 by which lands of plot no. 293 and plot no. 288 have been sold. The appellants have claimed that these two plots are also in neighborhood of the acquired land. None of the witnesses examined on behalf of the respondent-Sate of Bihar has denied the said fact and there is also no other material to disbelieve the said fact. The learned court below has disbelieved the sale deeds produced on behalf of the appellants mainly on the ground that no evidence has been adduced by the appellants to establish that those sale deeds have been acted upon by producing mutation orders or rent receipts. The learned court below has further refused to rely on the deposition of A.W.-1 who was the vendor of the sale deed (Ext.1) and A.W.-2 who is the husband of the purchaser of the land through sale deed (Ext. 1/A) on the ground that they are interested witnesses because their land had also been acquired by the State of Bihar which fact was found sufficient to disbelieve their statement. In my view, the reasoning assigned by the learned court below for discarding sale deeds (Ext. 1 and 1/A) are not sustainable. Admittedly, these sale deeds have been executed in the year 1981 whereas the notification for the acquisition of the land has Patna High Court FA No.125 of 1996 dt.14-12-2012 13 been made in the year 1983 and as such the plea of manufacturing these deeds for the purpose to enhance the valuation cannot be accepted. The lands of A.W. 1 and A.W. 2 might have been acquired by the State of Bihar but that cannot be the sole ground for disbelieving their statements as well as the transactions made by them for their lands much prior to the acquisition of the land in question. As mentioned above, no evidence has been adduced by the respondent-State of Bihar to establish that the lands subject of sale deed (Ext.-1 and 1/A) are situated at a far distance and are not in the locality and therefore there is no material to disbelieve the statements of the A.W.-1 and A.W.-2 which show that the land subject matter of the sale deeds (Ext. 1 and Ext. 1/A) are situated in the neighborhood of the acquired land in question. It is true that the vendor of the sale deed (Ext. 6) has not been examined in support of the transaction but the fact remains that it is a registered document carrying the presumption of its validity in absence of the evidence to the contrary. On the other hand, the learned court below has preferred to rely upon a sale deed dated 13.01.1982, the photo copy of which has been adduced as evidence on behalf of the respondent-State of Bihar. By this sale deed two katha land of plot no. 2855 has been sold for Rs. 10,000/-. There is no evidence on behalf of the respondent-State of Bihar to establish the location and position of the land subject matter Patna High Court FA No.125 of 1996 dt.14-12-2012 14 of this sale deed with the acquired land in question.
20. While determining the market value in land acquisition cases by comparable sales method the sale transactions of the lands in the area are taken into consideration as exemplars showing the prevailing market rate prior to or near about the date of notification. The land acquisition courts are not concerned with the question of passing of title on the basis of the sale deeds unless those sale deeds are assailed as malafide transactions. Therefore, insistence upon production of mutation orders or rent receipts for investigating whether those sale deeds have been acted upon is not generally warranted. From the perusal of the sale deeds (Ext.1 and 1/A) it transpires that the market value of the land in the area of the acquired land prior to notification was at least more than Rs. 5,000/- per katha. On behalf of the respondent the valuation chart containing the information obtained from the registration office regarding the sale transactions in the area has not been produced. From the perusal of the khatiyan and valuation statement produced as Ext.-A and Ext. A/1 by the respondent, no basis for valuation given therein can be inferred. There is also no evidence on behalf of the respondent to establish that the land subject matter of sale transaction in Ext. D is situated in the neighborhood of the acquired land in question having similar qualities.
Patna High Court FA No.125 of 1996 dt.14-12-2012 15
21. A three judge bench of the Apex Court in the case of Land Acquisition Officer Vs. V. Narasaiah, 2001 (2) PLJR (S.C.) 33, while considering the scope of Section 51 (A) of the L.A. Act, has held that the state has the burden of proof of the market value of the land acquired by it for which the state may have to depend upon the prices of lands similarly situated which were transacted or sold in the recent past particularly those lands situated in the neighboring areas. In the present case except the photo copy of the sale deed (Ext.-D) no detail of other sale transactions has been produced as evidence on behalf of the respondent-State of Bihar to sustain the market value as determined for the acquired land in question. The learned court below has put much emphasis on the claim made by the appellants regarding the market value of the land in question to be Rs. 20,000/- to 25,000/- and has made the same as basis for finding contradictions in the depositions of the witnesses of the appellants who have consistently deposed that the market value of the acquired land at the time of notification was about Rs. 14,000/- to 18,000/- per katha. This approach of the learned court below cannot be sustained simply for the reason that the assessment of the market value as given by the appellants were their subjective assessment and even otherwise also there is no much difference in the rate of the land disclosed by the witnesses of the appellants and that of the appellants keeping in view Patna High Court FA No.125 of 1996 dt.14-12-2012 16 the normally human tendency to make the claim on higher side. It is for the court to sift the evidence brought on record objectively in order to assess the correct market value of the acquired land.
22. The judgment and award of Land Acquisition Case No. 21 of 1990 (Ext.7) relates to the acquisition of the land of plot no.
472. From the map (Ext. 8), it is manifest that this plot no. 472 is in the neighborhood of the acquired land in question. The same land acquisition court by this judgment and award has determined the rate of the acquired land in that case to be Rs. 12,500/- per katha. As aforementioned above, the previous judgment and award in another case can be looked into for the purpose of assessment and fixing the market value of the acquired land when both the lands are in neighborhood and there is no other distinguishable fact brought to the notice of the court for not relying upon such previous judgment and award. It is noteworthy here that the appellants, in paragraph 3 of the I.A. No. 6945 of 2012, have asserted that the plots of the acquired land in question are adjacent to and similar in nature to the plots subject matter of judgment and award in Land Acquisition Case No. 21 of 1990 (Ext. 7) and Land Acquisition Case No. 06 of 1999. This fact has been specifically admitted by the respondent in paragraph-6 of the counter affidavit filed by them stating that all the acquired plots are more or less similar in nature. Thus on the basis of the oral Patna High Court FA No.125 of 1996 dt.14-12-2012 17 and documentary evidence as mentioned above including the judgment and award of Land Acquisition Case No. 21 of 1990, the correct market value of the acquired land of the appellants on the date of notification appears to be Rs. 12,500 per katha.
23. For the aforesaid premised reasons and discussions, there is no doubt left that the assessment of the market value of the land of the appellants at the rate of Rs. 5000/- per katha has not been correctly made. It is further held that the market value of the acquired land in question of the appellants is Rs. 12,500/- per katha on the date of notification.
24. Accordingly, these two appeals are allowed and the impugned judgment and award passed by the learned court below in both the appeals are hereby set aside. The appellants in both the appeals are held entitled to be compensated for their acquired land at the rate of Rs. 12,500/- per katha along with other statutory benefits admissible under the Land Acquisition Act. In the facts and circumstances of the case, there shall be no order as to costs.
(V. Nath, J) Devendra/-