Jasvir Singh vs L.A.O. & Another
2014 Latest Caselaw 2184 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

				 		RESERVED ON 8.05.2014
 
					 	DELIVERED ON 30.05.2014 
 
	
 
Case :- FIRST APPEAL No. - 880 of 1993
 

 
Appellant :- Jasvir Singh
 
Respondent :- L.A.O. & Another
 
Counsel for Appellant :- P.K.Singhal,B. Dayal,Bidhen Chand Rai,V.C. Rai
 
Counsel for Respondent :- S.C.,S.Kumar
 

 
		With 
 
Case :- FIRST APPEAL No. - 401 of 1998
 

 
Appellant :- Kuljeet Singh & Another
 
Respondent :- Land Acquisition Officer And Another
 
Counsel for Appellant :- Rajesh Tandon,B.Dayal,Bidhen Chand Rai,V.Sahai
 
Counsel for Respondent :- Sc
 
 			___________
 

 
Hon'ble Ashok Bhushan,J.

Hon'ble Mrs. Ranjana Pandya,J.

(DELIVERED BY ASHOK BHUSHAN, J.)

These two appeals have been filed against a common judgment and order dated 7.12.1988 passed by the District Judge, Rampur in Reference No. 21 of 1987, Jasvir Singh Vs. Land Acquisition Officer and Reference No. 27 of 1987 deciding reference under section 18 of the Land Acquisition Act, 1894 by which compensation awarded to the appellant was increased from Rs. 12,000/- to 17,000/- per acre. The brief facts giving rise to these two appeals need to be noted. A notification under section 4 of the Land Acquisition Act, 1894 dated 18.8.1981 was issued for acquisition of Plot No. 240. Area 1.80 acres belonging to the appellant in first appeal No. 880 of 1993 and area 4.51 acres of appellants in appeal No. 401 of 1998 was sought to be acquired for the purpose of construction of railway line from Rampur to Haldwani. Simultaneous declaration under section 6 of the Land Acquisition Act, 1894 was issued which was published on 14.11.1981. Notice under section 9 was issued asking the land holders to appear on 25.8.1996. On 19.9.1986, the possession of the land was taken by the Collector since urgency clause under section 17(1) was invoked while issuing notification under section 4 of the Land Acquisition Act, 1894. The award was issued on 22.9.1986 under section 11 of the Act. Special Land Acquisition Officer fixed the valuation of the land as Rs. 12000/- per acre. With regard to valuation of trees and other assets, it was mentioned in the award that the necessary report regarding valuation of the trees etc. are awaited and the compensation for the aforesaid shall be determined separately. The appellants received the compensation as awarded by the Special Land Acquisition Officer. However, a request for making reference under section 18 of the Land Acquisition Act, 1894 was made. On the application submitted by the appellants, reference No. 21 of 1987 Jasvir Singh Vs. Land Acquisition Officer and reference No. 27 of 1987 Kuljeet Singh and Lakhvir Singh Vs. Land Acquisition Officer were registered before the District Judge, Rampur. In both the above references, following issues were framed:

" Issues of Reference No. 21 of 1987:-

(1)Whether the market value of the land of the claimant, which has been acquired, is Rs. 50,000/- per acre, as alleged by the claimant?

(2)To what amount, if any, is the claimant entitled?

" Issues of Reference No. 27 of 1987:-

(1) Whether the market value of the acquired land of the claimant is Rs. 50,000/- per acre, as alleged by the claimant?

(2) To what amount, if any, are the claimants entitled?"

The claimants led both documentary and oral evidence. In reference No. 21 of 1987 photocopy of the sale deed dated 22.6.1981 executed by Smt. Harjeet Kaur, photocopy of map and photocopy of Khasra were filed. In reference no. 27 of 1987, the claimants had filed sale deed dated 22.6.1981, executed by Smt. Harjeet Kaur in favour of a trust for Rs. 35000/- in respect of 10 Bighas of land. In reference No. 21, award of Land Acquisition Officer Nainital, who had awarded compensation to one Sugreev Ram at the rate of 30,000/- per acre was also relied. Oral statement was made by Kuljeet Singh in reference No. 27 of 1987. Jasveer Singh appeared as P.W-2 in reference No. 27 of 1987. Sugreev Lal appeared as P.W.-3. Suresh Singh also appeared as P.W.-4. An Advocate Commissioner namely; Akhilesh Kumar Khara submitted his report on 17.7.1987. No evidence in rebuttal was filed on behalf of Land Acquisition Officer/State. Learned District Judge vide its judgment and order dated 7.12.1988 determined the compensation of land at the rate of Rs. 12000/- per acre. The award of Land Acquisition Officer Nainital was held to be not relevant. In so far as sale deed dated 22.6.1981, it was observed that neither vendor nor vendee had been examined to prove as to whether the sale deed was by a willing seller in favour of willing purchaser. Before the Land Acquisition Officer as well as reference court, the appellant had claimed compensation at the rate of Rs. 50,000/- per acre. Against the judgment of learned District Judge dated 7.12.1988, first appeal No. 98 of 1988 was filed by appellant Jasvir which was subsequently allotted a regular No. 880 of 1993, the appellant Kuljeet Singh and others filed another appeal being appeal No. 122 of 1989 which has been allotted regular No. 401 of 1998, challenging the award of learned District Judge. Both the first appeals came for hearing before the learned Single Judge of this Court, who vide its judgment and order dated 29.1.2004 disposed of both the appeals modifying the judgment and order of learned District Judge dated 7.12.1988 by enhancing the amount of compensation from Rs. 17000/- per acre to Rs. 30,000/- per acre. The appellant being dissatisfied by the judgment and order of this Court dated 29.1.2004 filed Civil appeal No. 5714-5715 of 2005 which appeals were disposed of by the apex Court on 12.9.2005. The judgment of the High Court was set aside by the apex Court and following order was passed:

"Leave granted.

Learned Counsel for the appellants submits that apart from the fact that he is aggrieved by compensation as has been awarded by the High Court, the High Court has failed to award interest under Sec. 23(1A) of the Land Acquisition Act. It is further submitted that other statutory benefits like solatium have not been awarded to the appellants. Secondly, it is submitted that there is no basis for arriving at the figure of Rs. 30,000/- per acre. Learned Counsel appearing for the respondents is unable to dispute any of these averments made on behalf of the appellants. Accordingly, the impugned judgment of the High Court is set aside and the matter is remanded back to the High Court for decision afresh on merits and in accordance with law. Since the matter is quite old, the High Court will take steps to dispose of the matter expeditiously.

The appeals are disposed of."

After the remand by the apex court, these two appeals have been heard. It is also relevant to note that after the aforesaid remand by the apex court on 12.9.2005, a writ petition No.77449 of 2005 was filed by Jasvir Singh & Ors Vs. State of U.P. challenging the entire land acquisition proceedings which writ petition has also been heard along with these two appeals and which writ petition is being disposed of by the order of the date separately.

Sri Vishnu Sahai, learned Counsel for the appellant in support of these two appeals have submitted that compensation determined by the learned District Judge by the impugned judgment is wholly inadequate. He submits that even the evidence which was on record before the learned District Judge had not been looked into while fixing compensation at the rate of Rs. 17000/- per acre. Learned Counsel for the appellant submits that in fact the award dated 22.9.1986 is not an award within the meaning of the Land Acquisition Act, 1894. He submits that the award was given by Land Acquisition Officer only with regard to land and with regard to compensation for trees and other assets award mentions that the valuation report is awaited and the same shall be separately declared. He submits that infact the entire land acquisition proceedings were invalid and the appellants are entitled for compensation at the present market rate. He further submits that in pursuance of the order passed in writ petition No. 77449 of 2005, the parties proceeded for outside settlement regarding compensation. He submits that under the said direction, the District Magistrate and Divisional Commissioner have sent a report to the State Government with regard to compensation which was required to be paid to the appellant on the basis of market rate as was existing at the time of submission of report i.e. in the year 2008-09. He submits that the State Government did not agree for outside settlement and expressed its willingness to enter into settlement at the rate of Rs.30,000/- per acre only. He submits that those correspondences and reports have been brought on record by means of an application dated 29.11.2010 may be taken on record under Order 41 rule 27 of the C.P.C. He further submits that the compensation for the trees has not yet been awarded.

Sri Ram Krishna, learned Chief Standing Counsel appearing for the State submits that the appellants have received the compensation for some trees also. Referring to the counter affidavit filed by the appellant in appeal No. 880 of 1993, he submits that the compensation for 28 trees of guava to the tune of Rs. 20,720/- + 12% additional amount and solatium has been paid as per rules. Sri Ram Krishna submits that the report of the Divisional Commissioner and the District Magistrate recommending the payment of compensation at the rate of 2008-09 has rightly not been accepted by the State Government and the State Government has shown its willingness at the rate of Rs. 30,000/- per acre. He further submits that the aforesaid order of the out of court settlement was passed in writ petition No. 77449 of 2005 and is not relevant for deciding the present appeal. Sri Ram Krishna submits that the scope of the present appeals are only the order of the District Judge dated 7.12.1988 by which both the references have been decided.

We have considered the submissions of learned counsel for the parties and have perused the record.

Learned District Judge while deciding both the references has noted the relevant evidence both documentary and oral which were brought on record. The claimants had claimed compensation at the rate of Rs. 50,000/- per acre.

Before the learned District Judge, the documentary evidence namely; the sale deeds dated 22.6.1981 executed by Smt. Harjeet Kaur was filed. The said sale deed was disregarded observing that the sale deed is of another village and there is no details of distance. Further, it was observed that neither vendor nor vendee has been examined to prove as to whether the sale deed was by a willing seller in favour of willing purchaser. In so far as observation of the Court that neither vendor nor vendee has been examined, suffice it to say that section 51A of Land Acquisition Act, 1894 specifically provides that certified copy of the documents registered under the Registration Act to be accepted as evidence. Section 51A of the Land Acquisition Act is quoted below:

" 51A. Acceptance of certified copy as evidence.-

In any proceeding under this Act, a certified copy of a document registered under the Registration Act, 1908 (16 of 1908), including a copy given under section 57 of that Act, may be accepted as evidence of the transaction recorded in such document."

The apex Court in (2001) 3 SCC 530 Land Acquisition Officer and Mandal Revenue Officer Vs. Narasaiah has held the sale deed relevant. The apex court has also referred to section 51A. The apex court laid down following in paragraphs 10,11,13 and 14:

"10. Before the introduction of Section 51A in the L.A. Act the courts have, invariably, taken the view that unless at least one person, having direct knowledge about the transaction mentioned in the sale-deed, is examined the mere marking of the copy of the document was insufficient for the court to consider the details mentioned in the document as evidence. This Court has also approved the said position as legally correct (vide Collector Raigarh vs . Dr. Harisingh Thakur) .

11. If the only purpose served by Section 51A is to enable the Court to admit the copy of the document in evidence there was no need for a legislative exercise because even otherwise the certified copy of the document could have been admitted in evidence. Section 64 of the Evidence Act says that "documents must be proved by primary evidence except in the cases hereinafter mentioned." Section 65 mentions the cases in which secondary evidence can be given of the existence, condition or contents of a document. One of the cases included in the list is detailed in clause (f) of the Section which reads thus:

"When the original is a document of which a certified copy is permitted by this Act, or by any other law in force in India, to be given in evidence."

13. If the position regarding admissibility of the contents of a document which is a certified copy falling within the purview of section 57(5) of the Registration Act was as adumbrated above, even before the introduction of section 51A in the L.A.Act, could there be any legislative object in incorporating the said new provision through Act 68 of 1984? It must be remembered that the state has the burden to prove the market value of the lands 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 neighbouring areas. The practice had shown that for the state officials it was a burden to trace out the persons connected with such transactions mentioned in the sale-deeds and then to examine them in court for the purpose of proving such transactions. It was in the wake of the aforesaid practical difficulties that the new Section 51A was introduced in the L.A. Act. When the Section says that certified copy of a registered document "may be accepted as evidence of the transaction recorded in such document" it enables the court to treat what is recorded in the document, in respect of the transactions referred to therein, as evidence.

14. The words "may be accepted as evidence" in the Section indicate that there is no compulsion on the court to accept such transaction as evidence, but it is open to the court to treat them as evidence. Merely accepting them as evidence does not mean that the court is bound to treat them as reliable evidence. What is sought to be achieved is that the transactions recorded in the documents may be treated as evidence, just like any other evidence, and it is for the court to weigh all the pros and cons to decide whether such transaction can be relied on for understanding the real price of the land concerned."

Learned District Judge thus was clearly in error in not giving due weight to the aforesaid sale deed.

Now we come to the observations of the District Judge insofar as award which was filed before the court regarding adjoining land. Learned District Judge did not take the award passed by the Land Acquisition Officer Nainital into consideration relying on judgment of Apex Court in 1998 (3) SCC 751, Chimanlal Hargovinddas Vs. Special Land Acquisition Officer, Poona & Anr. Learned District Judge referring to above judgment observed that "....it has been ruled that question of compensation under Section 18 of the Act has to be determined independent of proceedings and award of Land Acquisition Officer." The Apex Court in the above case laid down following preposition in paragraph 4.

"4. The following factors must be etched on the mental screen:

(1) A reference under Section 18 of the Land Acquisition Act is not an appeal against the award and the Court cannot take into account the material relied upon by the Land Acquisition Officer in his Award unless the same material is produced and proved before the Court.

(2) So also the Award of the Land Acquisition Officer is not to be treated as a judgment of the trial court open or exposed to challenge before the court hearing the reference. It is merely an offer made by the Land Acquisition Officer and the material utilised by him for making his valuation cannot be utilised by the court unless produced and proved before it. It is not the function of the Court to sit in appeal against the award, approve or disapprove its reasoning, or correct its error or affirm, modify or reverse the conclusion reached by the Land Acquisition Officer, as if it were an appellate Court.

(3) The Court has to treat the reference as an original proceeding before it and determine the market value afresh on the basis of the material produced before it."

From what has been observed as above it cannot be said that any award given by Court under Section 18 regarding any adjoining land is not relevant.

The apex Court in ( 1976)1 SCC 973 The State of Madras vs. A.M. Nanjan and Anr. has held that award of the Land Acquisition Officer of adjoining land are relevant in the matter of determination of compensation. Following was laid down in paragraph 7:

"7. We are unable to accept the submission that the awards in question cannot be taken as safe guides in the matter of determination of compensation. As a matter of fact these awards given by the Collector are at least relevant material and may be in the nature of admission with regard to the value of the land on behalf of the State and if the land involved in the awards is comparable land in the reasonable proximity of the acquired land, the rates found in the said documents would be a reliable material to afford a basis to work upon for determination of the compensation on a later date. The awards, therefore cannot be dismissed as inadmissible for the purpose of determination of the compensation."

Thus the District Judge erroneously discarded the award of Land Acquisition Officer, Nainital.

The witnesses P.W-1, P.W.2, P.W.-3 and P.W.4 who appeared have given in their statements location of plot, the developments in the adjoining places. It was stated that there was rice mills situated in the vicinity and it was only half Km. from the town area Rudrapur. All the witnesses have stated that market value of the land is not less than Rs. 50,000/- per acre. The Advocate Commissioner has submitted report 21-C which was relevant. In this context, it is relevant to note the observation of the District Judge while considering the statements of the witnesses and Advocate Commissioner report. Following was observed by the Court:

"Jasvir Singh P.W.2 is claimant of Reference No. 21 of 1987. He too has stated that Amar Nath Jha Inter College is quote close to his land. There are also 3-4 rice-mills and oil mills. This land is about 2 to 2 and ½ furlongs away from Rampur-Nainital road. As such it is a developing area and it can fetch a good price at the rate of Rs. 50,000/- per acre.

Sugriv Lal P.W.3 is the farmer, whose land has been taken and compensation has been awarded by the Land Acquisition Officer, Nainital. He has been awarded compensation at the rate of Rs. 31,000/- per acre. It has already been held that because of the case of Chiman Lal Hargovind Das (supra) this criteria for determining the compensation will not be admissible.

Suresh Singh P.W. 4 has also stated about the market value of the land being Rs. 50,000/- per acre, he too has never either purchased or sold any land. Hence his evidence too as an expert regarding price of the land in question cannot be accepted.

Besides, there is report (21-C) of Commissioner Shri Akhilesh Kumar Khura, Advocate dated 17.7.87. He too has reported on the line as the claimant's witnesses have stated in their evidence in this regard.

There is no evidence in rebuttal"

The District Judge noted the report of the Advocate Commissioner, which fully supported the market value of the land as Rs. 50,000/- per acre. The Commissioner Report was relevant document which has not been given due weight by the District Judge. The learned District Judge had also noted that no evidence is given in rebuttal. Learned District Judge has thus clearly fell in error in fixing the market value of the land as Rs. 17000/- per acre. Insofar as the certain materials which have been brought on record by the appellant by means of an application under Order 41 Rule 27 dated 24.11.2010, suffice it to say that the materials brought on record relate to correspondence between the Government officials pertaining to determination of compensation outside the Court as per orders passed by this Court in writ petition No. 77449 of 2005 and is being separately decided by order of the date, more so the said correspondences pertain to issue of outside settlement regarding compensation between the parties at the rate of 2007-08, which was claimed by the appellant. The outside settlement could not take place between the parties hence, the said correspondences are not relevant for determination of issues raised in these two appeals. These appeals have been filed against the order of District Judge deciding the reference under section 18 of the Land Acquisition Act, 1894. Thus, we do not find any necessity to admit those documents under order 41 Rule 27 and consider the same for deciding these appeals arising out of the order of the District Judge dated 7.12.1988.

As noted above, there was sufficient evidence before the District Judge that land had potentiality of development. The land had potentiality and the evidence which was led by the appellant before the District Judge that the market rate of the land was Rs. 50,000/- per acre ought to have been accepted and the District Judge committed error in fixing the market value of the land only as Rs. 17,000/- per acre. We are thus of the view that the appeal filed by the appellant deserves to be allowed and the claim of the appellants for fixing the market rate as Rs. 50,000/- per acre was liable to be accepted.

Insofar as the submission of the learned counsel for the appellants that no compensation for trees and other assets have been given to the appellant and the award mentions that the said compensation for trees and other assets shall be separately given after receipt of the valuation report, the issues, which were framed before the District Judge in Reference No. 21 of 1987 and 27 of 1987 were not with regard to any compensation for trees. The District Judge did not frame any issue regarding compensation for trees hence, neither any evidence was led before the District Judge nor any material is on the record to determine the said issue. Although in the counter affidavit, it has been stated by the State that compensation for some trees have been paid, we are of the view that the said issue for compensation of trees can be agitated before the Land Acquisition Officer, if compensation has not yet been paid regarding trees.

In the result, both the appeals are allowed. The judgment and order of the learned District Judge dated 17.12.1988 is modified. The claim of the appellants for fixing the compensation at the rate of Rs. 50,000/- per acre is allowed. The appellants are entitled to receive the compensation at the rate of Rs.50,000/- per acre along with interest from the date of taking of possession till date of payment with 30% solatium in accordance with the judgment of the apex Court reported in (2001) 7 SCC 211 Sunder Vs. Union of India . The appellant shall be entitled for interest on the aggregate amount of compensation calculated as above i.e. on the amount of compensation as well as solatium.

Both the appeals are allowed. Special Land Acquisition Officer is directed to pay the compensation to the appellants along with interest as per Section 34 of the Act, 1894 and solatium as directed above. The entire payment be made within a period of three months from the date a copy of this judgment is filed before the Collector/ Land Acquisition Officer.

Parties shall bear their own costs.

Order Date :- 30.5.2014

LA/-