Mandir Thakur Raghunath vs Land Acqutsition Collector
1970 Latest Caselaw 291 Del

JUDGMENT

S. Rangarajan, J.

 (1) The appellant, Mandir Thakur Shri Raghunath Ji, is aggrieved by the order of the learned District Judge Mahasu, who fixed the value of the two items of properties belonging to the said Mandir for the purpose of a road in the following manner:-    (I)5 Biswas of land in Rohru village at the rat of Rs. 3,000.00 per Bigha (ii) 3 Biswas of land in Khasra No. 1442/57-1 adjoining the above said property at Rs. 500.00 per Biswa.  

A further question, which is comparatively minor, is also raised concerning the District Judge not having awarded interest at six per cent per annum on the amount of compensation fixed but only at four per cent per annum This is an error apparent on the face of the record which has to be corrected, in any case.   

(2) The appellant claims that the value of 8 Biswas of land has, to be determined at not less than Rs.5.000.00 per Bigha but the appeal has been confined due to paucity of funds, to only an extra Rs. 1,000.00 than what has been awarded by the learned District Judge, subject of course to the payment of 15 per cent solarium on the extra Rs.1,000.00 as well. The Land Acquisition Collector made his award in respect of the lands in question on 11th November. 1968 after holding an inquiry under section 9 of the Land .Acquisition Act, the notification under section 4 having been issued by the Himachal Pradesh Government in respect of the said acquisition on 31st January. 1963. The Collector observed that the said extent of 5 Biswas in Khasra No 696/1 was found to be Banjar Kadim while 3 Biswas com

(3) The appellant moved an application under section 18 of the Act claiming compensation at the rate of Rs. 5,000.00 per Bigha for the entire 8 Biswas. In the reply which was filed by the Land Acquisition Collector it was stated that the market value had been assessed on the basis five years average market price which came to Rs 29.36 per Bigha for uncultivated land and that the land of the appellant was of the nature of uncultivated land (Banjer Kadim and Ghir Mumkin Khud) Still it was stated that the Collector had assessed the value at Rs. 500.00 per Bigha. It is worth noticing that no further particulars had been given in the said reply concerning the nature and quality of the properties acquired and no further material had been placed on record to show that both the said parcels of land 5 Biswas and 3 Biswas, respectively, should be treated on a different footing.

(4) In addition to examining the Manager of the Mandir, Shri Ghanshyam as Public Witness I, the appellant had also placed on record the judgments of the District Judge in respect of other properties of the temple in Rohru. Before adverting to those judgments it would be convenient to set out what Public Witness I had started in examination-in-chief and the extent to which alone he was either cross examined or his testimony generally assailed. Public Witness I had been the Manager of Shn Raghunathji Mandir since 1957. He was himself an orchardist who had seen the laid acquired, which was found within Chak Rohru, about half a mile from Rohru proper. The entire land was previously under cultivation and it was suitable for apple orchard ; there being apple orchards in the neighborhood The land was situated by the side of an old road which proceeded from Rohru to Sungri. Residential houses could also be constructed on this land. The Government had acquired several pieces of land in Chak Rohru, those which were acquired before 1962 before assessed at Rs. 250.00 per Biswa. The judgments in those cases were produced by him and they were marked as Exs. P.A.P,B., P.O., P D., P.E, and P.F. Ah the appeals against those Judgments were dismissed. Ex, P.G. was the Judgment of the Judicial Commissioner hi two such appeals. He made the further categorical statement that 8 Biswas acquired were of the same quality as the land. acquired in the above said cases and that even in the matter of potentiality they were the same. He further made the statement that Rohru was a developing town with many Government Officers there, two Banks and several other industries. It was connected by road from Simla. There was water near the acquired land. So much was stated by P. W. fin his examination. All that was elicited in cross examination was as follows:- "Ido have the knowledge that the land was being cultivated by the tenant on behalf of the Mandir before it was acquired but I cannot give the names of those tenants because it is over 6 years now that the land was acquired. I cannot sav whether in the Girdawari this land was shown as having been cultivated. J am the Manager of Shri Raghunath Ji temple since J 957. It have no knowledge about the land in dispute prior to 1957".

There was no contra evidence led in on behalt of the Government. In these circumstances, tho following observations of Wort J. in Karniaan Sarda v. Sailaja Kanta seem apposite :-    "ITcannot be too strongly emphasized th^t the system of administration of justice allows of cross-examination of opposite party's witnesses for the purpose of testing their evidence, and it must be assumed that when the witnesses were not tested in that way their evidence is to be accepted unless of course there are any inherent improbabilities".  

(5) There being no inherent probability in the statement made by P. W. I, his statement, in the absence of any specific cross-examination, must be accepted as correct. Dealing with the importance of cross-examination in order to give the witness an opportunity of giving an explanation Lord Herschell observed in Brown v. Dunn as follows:    "IT is well established rule of evidence that a party should put to each of his opponent's witnesses so much of his case as concerns that particular witness. If no such questions are put, the Courts presume that the witness".  

account has been accepted. If it is intended to suggest that a witness was not speaking the truth upon a particular point, his attention must first be directed to the fact by cross-examination so that he may have an opportunity of giving an explanation." Even apart from the above consideration. The District judge, Mahasu had in the judgments noticed above uniformly fixed the price of land in village Rohru at Rs. 5,000.00 per Bigha, the notifications under section 4 in those cases having been made about a couple of years earlier. It is common knowledge that the price of the land has only been on the increase. The learned District Judge has noticed that in those cases also the notifications under section 4 were issued bet- ween 1960 to 1963 and that the judgments were relevant for determining the market value of the land acquired in the present case He, however, deducted a sum of Rs, 2,000/ per Bigha on account of the fact that the lands in those cases were situate in Kohru town proper whereas the lands requisitioned in this case are about half a mile from Rohru town. I am afraid, especially in the absence of any cross examination of P. W. 1 and of any contrary evidence, it may not be correct to make any distinction between the lands acquired in those cases 8 Biswas acquired in the present case because the land in question in this case has been stated to befit for growing apples and it would not make any difference in the price in respect of such user as to whether the lands were in Rohru town itself or about half a mile distant. There having been no cross-examination at all of P. W. I that all the 8 Biswas acquired in this case were fit for growing apple trees its potentiality in this regard would itself be sufficient to make it available as the land in question in those cases. In Ex. P. B the learned District Judge bad observed that the acquired land was quite close to Rohru ; it was not stated that the land was in Rohru town itself. The further observation made by the learned District Judge in that case was that the land was near to Rohru Bazaar and suitable for plantation of orchards. Similar observations were made in Ex P. C.

(6) Nor was the learned District Judge correct in observing that the 3 Biswas should be valued differently. The only reason given by him in support of this view was that it was recorded as Ghair Mumkin Khud, A mere statement to this effect would not get over the positive testimony of P. W.I which was not even challenged in cross-examination that the entire 8 Biswas have been cultivated and that there was also a stream near the 3 Biswas which only merit more valuable for the purpose of raising an apple orchard. It has further to be noticed that in the matter of its suitability for growing apple trees no valid distinction could be made in the matter whether it was cultivated or not; it would be even more valuable for the purpose if not cultivated previously it being common knowledge that a virgin soil would even yield better results.

(7) In arriving at the market value, it is settled that regard must be had to what a willing purchaser would pay to a willing seller and this would mean that regard must be had to its existing conditions, with all its existing advantages and its potential possibilities when laid out in its most advantageous manner vide the observations of Shelat J. in Raghubans Narain v. Government of U. P.

(8) I have, therefore, to differ from the learned District Judge and hold that the market value of the land should have been fixed at Rs. 5,000.00 per Bigha for all the 8 Biswas and not at the lower figures arrived at by him. Since the appellant has confined relief to only Rs. 1,000.00 the award of the learned District Judge would be modified by adding a sum of Rs. 1,000.00 to the sum of Rs. 825.00 in respect of 8 Biswas. The appellant will, therefore, be entitled to a sum of Rs. 1,825.00 plus solarium at 15 per cent which comes to Rs 278.75, thus making a total of Rs 2,095.75 On this amount the appellant would be entitled to interest at six per cent per annum instead of four per cent per annum as directed by the learned District Judge. The appellant will also have the costs of the application and of this appeal to the extent of the amount now decreed. The appeal is accepted accordingly.