Jharkhand High Court
Ajay Kumar Singh vs State Of Bihar/The State Of ... on 10 January, 2023
IN THE HIGH COURT OF JHARKHAND AT RANCHI
F.A. No. 40 of 2007
1. Ajay Kumar Singh
2. Sanjay Kumar Singh
3. Arunjay Kumar Singh
4. Dhananjay Kumar Singh
All sons of Late Jwala Prasad Singh & Late Pramina Devi,
R/o Village & P.O.- Gulabjhari, P.S.- Chattarpur,
District- Palamau ... ... Applicants/Appellants
-Versus-
State of Bihar/The State of Jharkhand ... Opp. Party/Respondents
---
CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
---
For the Appellants : Mr. Dilip Kumar Prasad, Advocate
Mr. Kishore Kumar Mishra, Advocate
Mr. Sunil Kumar Mahato, Advocate
For the Respondent : Ms. Shrestha Mehta, A.C. to S.C.II
---
30/10.01.2023
1. This First Appeal has been filed under Section 54 of the Land
Acquisition Act, 1894 against the judgment dated 24.08.2006
and the award dated 21.09.2006 passed by learned Subordinate
Judge-II, Daltonganj, Palamau in Land Acquisition Case No. 14
of 1989 whereby and whereunder the claimants/appellants are
aggrieved by the quantum of compensation awarded against
the acquired land. The original appellant /claimant namely,
Pramina Devi has been substituted in this First Appeal by her
legal heirs, the present appellants.
2. Admittedly the property involved in this case was acquired by
a notification dated 01.10.1980 issued under Section 4 of Land
Acquisition Act, 1894. The matter regarding compensation for
the acquired land was referred to the learned court below
under Section 18 of the Land Acquisition Act, 1894 vide order
dated 05.01.1989 and accordingly, Land Acquisition Case No.
14/1989 was instituted.
3. Earlier Vide judgement dated 28.03.2019, this court had set
aside the impugned judgment and award to the extent that the
compensation to be assessed and paid on the basis of Sale Deed
dated 12.02.1979 (Exhibit-2/a) and not on the basis of Sale Deed
dated 29.12.1976 (Exhibit-2/c) as directed by the impugned
judgement. This Court had also held that the claimant would be
entitled to payment of solatium, additional compensation as
well as interest under the Act and had directed the office to
prepare decree accordingly.
4. The appellants had produced five witnesses and inter-alia four
sale deeds before the learned court below i.e. Sale Deed No. 112
dated 19.01.1978 (Exhibit-2), Sale Deed No. 283 dated 12.02.1979
(Exhibit-2/a), Sale Deed No. 2907 dated 30.11.1977 (Exhibit-
2/b) and Sale Deed No. 9601 dated 29.12.1976 (Exhibit-2/c).
5. Sale Deed No. 9601 dated 29.12.1976 (Exhibit-2/c) was the basis
on which the compensation was assessed by the learned court
below. The rate mentioned in Sale Deed No. 9601 dated
29.12.1976 (Exhibit-2/c) was much below as compared to the
rate mentioned in other deeds.
6. The following findings were recorded in the earlier judgement
passed by this Court: -
a. That the appellant has not raised any argument in
connection with other points which are involved in this
case such as valuation of the house, well and trees as
claimed by them as there was no sufficient evidence
before the court below for the purposes of holding that
aforesaid house, well and trees were existing on the
property.
b. The learned court below could not have refused to
consider the sale deeds dated 19.01.1978 and 12.02.1979
solely on the ground that same was within three years
prior to the date of notification.
c. So far as sale deed dated 29.12.1976 is concerned, same
was beyond three years from the date of notification.
There is no dispute that value of the land to be assessed
has to relate to the value of land as it existed on the date
of notification.
d. In this view of the matter, sale deeds which were dated
19.01.1978 and 12.02.1979 were more proximate to the
date of notification under Section 4 i.e. 01.10.1980 and
there is no other material on record to discard these sale
deeds for the purpose of ascertaining the market value of
the property on the date of notification. ...............
e. So far as sale deed dated 30.11.1977 is concerned, the
learned court below has assigned reasons for not
considering this deed by holding that the property
involved in deed dated 30.11.1977 was closer to the
village. ...................
f. So far as sale deed dated 19.01.1978 is concerned, as
rightly pointed out by the counsel appearing on behalf of
the respondents that from the boundary, which has been
mentioned in the sale deed itself, this property was
located by the side of the road and this Court finds that
one of the plus factors for the purpose of valuation as
laid down by the Hon'ble Supreme Court is proximity to
a road. In the instant case, there is no evidence on record
that the land which is involved in this case was also near
to any road, rather it has been observed by the court
below that the land involved in this case is away from
the village and this finding is not in dispute. In such
circumstances, this Court finds that sale deed dated
19.01.1978 which is marked as Exhibit-2 cannot be a basis
for the purposes of fixing the market value of the
property which is involved in this case.
g. So far as sale deed dated 12.02.1979 (Exhibit-2/a) is
concerned, this Court finds that this sale deed is fit to be
considered as this property is in a close proximity in time
to the date of notification dated 01.10.1980 and no aspect
of this property has been pointed out by the learned
counsel for the respondents to discard this sale deed
from consideration. This Court finds that this sale deed
dated 12.02.1979 (Exhibit-2/a) is more proximate in time
to date of notification under Section 4 which is dated
01.10.1980 as compared to the sale deed dated 29.12.1976
and therefore, this sale deed dated 12.02.1979 (Exhibit-
2/a) is more appropriate to be considered for the
purpose of ascertaining the market value of the property
on the date of notification dated 01.10.1980. Accordingly,
this Court finds that non consideration of the sale deed
dated 12.02.1979 (Exhibit-2/a) by the learned court below
while ascertaining the compensation on the ground as
indicated above suffers from perversity. Accordingly, the
impugned judgment dated 24.08.2006 and the award
dated 21.09.2006 passed by learned Subordinate Judge-II,
Daltonganj in Land Acquisition Case No. 14 of 1989 is
modified to the extent that the compensation is to be
assessed and paid on the basis of sale deed dated
12.02.1979 (Exhibit-2/a) and not on the basis of sale deed
dated 29.12.1976 (Exhibit-2/c). Further, the claimant
would be entitled to payment of solatium, additional
compensation as well as interest under the Act. ...........
7. Being aggrieved by and dissatisfied with the order passed by
this Court dated 28.03.2019 in First Appeal No.40 of 2007, the
original appellant-claimant-land owner preferred Civil Appeal
No. 1762 of 2022 before the Hon'ble Supreme Court. The
Hon'ble Supreme Court vide Judgment dated 10.03.2022 partly
allowed the Civil Appeal and remitted the appeal to this Court
in the following terms:
"3. We have heard learned counsel appearing for the respective parties
at length. We have also gone through and considered the impugned
judgments and orders passed by the High Court. From the impugned
judgment and orders passed by the High Court, it can be seen that
after holding that Sale Deed dated 12.02.1979 (Exh.2/a) has to be
considered for determination of the compensation with respect to the
acquired land, there is no further discussion on the area of the land
sold by Sale Deed dated 12.02.1979. The High Court has also not
discussed at all the sale consideration for which the Sale Deed dated
12.02.1979 was executed. The High Court has also not noted what
was the sale consideration so far as the Sale Deed dated 12.02.1979
(Exh.2/a) is concerned. The High court has also not discussed what
was the location of the land, so far as the Sale Deed dated 12.02.1979
is concerned. The only observation made by the High Court is that as
the Sale Deed dated 12.02.1979 is more proximate in time to the date
of notification issued under Section 4 of the Act, 1894 i.e. 01.10.1980
as compared to the Sale Deed dated 29.12.1976, therefore, the Sale
Deed dated 12.02.1979 is more appropriate to be considered for the
purpose of ascertaining the market value of the property on the date of
the notification dated 01.10.1980. It is to be noted that there is no
detailed discussion by the High Court by taking into account the
relevant factors which are required to be taken into consideration
while ascertaining the market price as observed and held by this Court
in the case of Viluben Jhalejar Contractor Vs. State of Gujarat,
(2005) 4 SCC 789 in paragraph 20, which reads as under: -
20. The amount of compensation cannot be ascertained with
mathematical accuracy. A comparable instance has to be
identified having regard to the proximity from time angle as
well as proximity from situation angle. For determining the
market value of the land under acquisition, suitable adjustment
has to be made having regard to various positive and negative
factors vis-à-vis the land under acquisition by placing the two
in juxtaposition. The positive and negative factors are as under:
Positive factors Negative factors
(i) smallness of size (i) largeness of area
(ii) proximity to a road (ii) situation in the interior at
a distance from the road
(iii) frontage on a road (iii) narrow strip of land with
very small frontage
compared to depth
(iv) nearness to developed (iv) lower level requiring the
area depressed portion to be
filled up
(v) regular shape (v) remoteness from developed
locality
(vi) level vis-à-vis land under (vi) some special
acquisition disadvantageous factors
which would deter a
purchaser
(vii) special value for an
owner of an adjoining
property to whom it may
have some very special
advantage
4. It is also required to be noted that there was a time gap of one year
and eight months between the Sale Deed dated 12.02.1979 and the
Section 4 notification. Therefore, if ultimately, it is found that both are
absolutely comparable, in that case, even suitable price rise at the rate
of 12% per annum may also have to be considered. However, the High
Court has mechanically held that the claimants shall be entitled to the
compensation considering the price/sale consideration mentioned in
the Sale Deed dated 12.02.1979. While considering the sale deed/sale
exemplar, the proximity in time to the date of sale deed and to the date
of notification under Section 4 may be a relevant factor but at the
same time, other factors, as observed hereinabove are also required to
be taken into consideration while determining the actual market price
of the acquired land.
5. .............
6. ..............the appeals are remitted to the High Court to consider
and decide the appeals afresh in accordance with law and on merits
and after considering the relevant factors while considering the Sale
Deed dated 12.02.1979 as a sale exemplar and thereafter to decide and
determine the exact market value and the compensation to be paid to
the original claimants. ........"
8. Thus, it is clear from the aforesaid background of the case that
the learned court below considered the Sale Deed of the year
1976 as a sale exemplar for the purposes of determining the
market value to assess compensation; in the first appeal, the
sale deed of the year 1979 was directed to be considered as a
sale exemplar for the purposes of determining the market value
to assess compensation. However, in the earlier judgement
passed by this Court, there was no detailed discussion by
taking into account the relevant factors which are required to
be taken into consideration while ascertaining the market price
as observed and held by the Hon'ble Supreme Court in the case
of Viluben Jhalejar Contractor Vs. State of Gujarat, (2005) 4
SCC 789 in paragraph 20 as quoted in the order of remand
itself.
9. Consequently, the appeal has been partly allowed by the
Hon'ble Supreme Court and has been remitted with a direction
to decide the appeal afresh in accordance with law and on
merits and after considering the relevant factors while
considering the Sale Deed dated 12.02.1979 as a sale exemplar
and thereafter to decide and determine the exact market value
and the compensation to be paid to the original claimants.
10. Accordingly, this First Appeal has been heard afresh.
11. Arguments of the appellants as mentioned in the written
notes of arguments
i. The reference Court ignored all the sale deeds prior to
October, 1977 on the ground that they were not more than
3 years old from Section 4 Notification and accordingly,
rejected the reference. The appellant challenged the
Judgment and order of Reference Court by way of present
appeal before this Court.
ii. The appellant filed supplementary affidavit before this
Court showing that the land in same village acquired at
the same time, the land owners were granted
compensation of Rs. 45,000/- per acre. The Awards in 4
such references were brought on record i.e. awards in L.A.
Case Nos. 12/1989, 27/1989, 32/1989 and 52/1989
whereas this Court was pleased to set aside the award
and modified the same taking into consideration the sale
deed dated 12.02.1979 (Ext. 2/a) vide order dated
28.03.2019, but there is no reference in the said order to
the award made in the above mentioned 4 cases where Rs.
450/- per decimals was awarded on the basis of sale deed
dated 30.11.1977 (Ext. 2/B).
iii. Considering the case of the Appellants, certain parameters
need to be answered and looked into. Relying upon the
sale deed dated 12.02.1979 (Exhibit-2/a) as held by the
Hon'ble Apex Court and this Court has rightly held in its
orders to consider the same for determination of the
market value as the same is in close proximity in time to
the date of notification dated 01.10.1980, as such the
following factors are involved with regard to deed dated
30.11.1977 (Exhibit-2/B): -
(1) Land is out of ceiling area
(2) Land is of agricultural area
(3) Land is situated in Chattarpur (anchal) in the
district of Palamau, measuring an area of 40
decimals only.
(4) Topography of the land is on the North and
South side (tarn) whereas in the East and West
side it is (dhan).
Therefore, the value of the entire acquired land can be
fixed upon the basis of the sale deed dated 30.11.1977
(Exhibit-2/B). The acquired land is irrigated land near to
Batane river and the persons who have been paid award
at the rate of Rs. 450/- per decimals, their land situates
across the river i.e. situated almost at same distance from
the Batane river. Therefore, the sale deed dated 30.11.1977
Exhibit 2/b may be considered while adjudicating the
amount of compensation.
iv. In view of the aforesaid observation by the Hon'ble Apex
Court and this Court, the positive and negative factors are
looked into and answered as follows: -
Positive Factors :-
(i) Smallness of size - the size is 2.51 acre only.
(ii) Proximity to a road - proximity 200 yards is far away
from the populated area of the village.
(iii) Frontage on a road - there is village road frontage
near to village road situated on the Phokhar.
(iv) Nearness to developed area - there is nearness 1.5
k.m to developed area.
(v) Regular shape - the regular shape as it is an
agricultural area - regular shape which is an agricultural
land.
(vi) Level vis-à-vis land under acquisition level of land
under acquisition was below the level, normal land.
(vii) Special value for an owner of an adjoining property
to whom it may have some special advantage - there is
no special value.
v. While remitting back the appeal to this Court, the Hon'ble
Apex Court has categorically observed that even suitable
price rise at the rate of 12% per annum may also have to
be considered if acquisition is made within 1 year 8
months.
vi. Exhibit 3 and 3/A old survey map may be looked in to
assess the value/status of land. The land of the appellant
situates nearer to village road which would be manifestly
clear from survey map.
vii. While assessing the amount of compensation, cost of
house, well and trees standing over the appellant's land
may be taken into account besides cost of land."
12. Arguments of the respondents as per written notes of
arguments
"Considering the case of the Appellants, certain parameters
need to answered and looked into. Relying upon the sale deed
dated 12.02.1979 (Exhibit-2/a) as the Hon'ble Apex Court and
this Court has rightly held in its Orders to consider the same for
determination of the market value as the same is in close
proximity in time to the date of notification dated 01.10.1980, as
such the following factors are involved with regard to deed
dated 12.02.1979 (Exhibit-2/a):
(1) Land is out of ceiling area
(2) Land is out of agricultural area
(3) Land is situated in Chattarpur (anchal) in the district of
Palamau, measuring an area of 40 decimals only.
(4) Value of the entire 40 decimal is Rs.7000/-
(5) Topography of the land is on the North and South side (tarn)
whereas in the East and West side it is (dhan).
Therefore, the value of the entire acquired land can be fixed
upon the basis of the sale deed dated 12.02.1979 (Exhibit-2/a).
In view of the aforesaid observation by the Hon'ble Apex Court
and this Court, the positive and negative factors are looked into
and answered as follows:
A. Positive Factors:
(1) Smallness of size- the size is 2.51 acre only.
(ii) Proximity to a road- proximity is far away from the
populated area of the village
(iii) Frontage on a road- there is no road frontage
(iv) Nearness to developed area- there is no nearness to
developed area
(v) Regular shape- the regular shape does not require as it
is an agricultural area
(vi) Level vis-à-vis land under acquisition- level of land
under acquisition was below the level
(vi) Special value for an owner of an adjoining property to
whom it may have some special advantage- there is no
special value
B. Negative Factors:
(i) Largeness of area- there is no largeness of area, it is
medium in size.
(ii) Situation in the interior at a distance from the road-
road is much far away the acquired land.
(ii) Narrow strip of land with very small frontage
compared to depth- the land is normal, no narrow
strip.
(iv) Lower level requiring the depressed portion to be
filled up- Since the land owner was doing agriculture,
therefore, it was a low-level land.
(v) Remoteness from the developed area- land is in remote
area, as such the price is not more than the price
quoted in Exhibit 2/a i.e. sale deed dated 12.02.1979.
(vi) Some special disadvantageous factors which would
deter a purchaser- There is not as such.
Calculation sheet
In view of para 5 of the Hon'ble Apex Court judgment
with regard to the actual marked price is to be decided on the
basis of the sale deed dated 12.02.1979 (Exbt. 2/a). At that
relevant time, there was no circle rate.
In that view calculation suggested is as follows:
7000/- for 40 decimal: 1 acre = 100 decimal
100 ÷ 40 × 7000 = 17,500/-
17,500/- for 1 acre 17,500 + 17,500 = 35,000/- (2 acres)
17,500 ÷ 2 = 8,750/- (50 decimal)
8,750 ÷ 50 = 175/- (1 decimal)
43,925/- for 2.51 acres + 5,271/- (12% interest p.a.) 43,925 ÷ 100
× 12 = 5,271/-
From 01.01.1980 to 03.09.2022 = 42 years, so 2,21,382/- for 42
years and interest @ 12 % per annum from the date of taking
possession if the initial amount of compensation not paid
otherwise from the date of notification in view of Section - 34 of
the Land Acquisition Act. "
Findings of this Court
13. This case has to be decided in the light of the observations and
directions made by the Hon'ble Supreme Court while partly
allowing the appeal and remanding the matter for fresh
decision.
14. This Court finds that in the present case, the lands of the
original claimant/appellants measuring total area of 2.51 acres
bearing Plot Nos.191, 192, 194 and 195 appertaining to Khata
No.50 situated at Village- Gulabjhari, Thana No.184, P.S.-
Chhattarpur, District- Palamau were acquired by a notification
dated 01.10.1980 issued under Section 4 of the Land Acquisition
Act, 1894. The matter regarding compensation for the acquired
lands was referred to the learned court below under Section 18
of the Land Acquisition Act, 1894 vide order dated 05.01.1989
and accordingly, Land Acquisition Case No. 14/1989 was
instituted.
15. The claimant examined 05 witnesses in support of her claim
who were cross-examined on behalf of the opposite party-
respondent.
16. Claimant Witness No.1, Sahjad Ali filed his affidavit on oath
stating that he knows that claimant and he was in visiting terms
to the place of the claimant and he used to do agricultural
works of the claimant. He knows the disputed land of the
claimant which has been acquired for the Batane Dam. Before
acquisition, the land was fertile and the source of water for
irrigation was very near and easily available and the
production was made higher through the means of irrigation.
There was a well for irrigation and a house of the claimant over
the acquired land. In his cross-examination, he stated that after
the death of Jwala Babu, he had no business with the family. He
does not know about the acquired land. The dam has been
constructed for irrigation purpose and at that time, there was
no means for irrigation and there was no canal. He cannot say
how many well were present in the family of Jwala Babu. It is
not correct to say that the compensation paid was adequate.
17. Claimant Witness No.2, Pyari Bhuiyan filed her affidavit on
oath stating that she knows that claimant and she was in
visiting terms to the place of the claimant and she used to do
agricultural works of the claimant. She knows the disputed
land of the claimant which has been acquired for the Batane
Dam. Before acquisition, the land was fertile and the source of
water for irrigation was very near and easily available and the
production was made higher through the means of irrigation.
There was a well for irrigation and a house of the claimant over
the acquired land. In her cross-examination, she stated that she
cannot say as to how much land of Jamuna Babu was acquired
in Gulabjhari Mouza. 2½ - 3 acres of land of Pramila Devi was
acquired. The land is situated at a distance of 6 miles from
Hariharganj road, but there was no pucca road at the time of
acquisition. He cannot say the plot number of the well and the
house. It is not correct to say that the government has paid
adequate compensation for the acquired land. It is not correct to
say that she has deposed in favour of the claimant as she is
working at her place.
18. Claimant Witness No.3, Uttam Kumar Singh filed his affidavit
on oath stating that he knows the claimant and his house is
situated beside the house of the claimant. The claimant had 3
acres of land under Khata No.50 which was acquired by the
Government for the Batane Dam, but lesser amount of
compensation has been paid to her. The land of the claimant
was highly fertile which was made more fertile by investment
and hard work. The water level of the land-in-question was
higher and suitable for irrigation. The claimant used to grow
paddy, wheat, maize, pulses and oilseeds over the said land.
The land was valuable, but the claimant did not get
compensation at market rate and her claim is correct. In his
cross-examination, he stated that the compensation was paid
under the Special Land Acquisition Officer, Aurangabad. He
does not know whether the business of the Batane Dam is being
made from Aurangabad Dam. He had deposited the attested
copy of the document brought from Aurangabad and the order
of the court is to be complied with by the Special Land
Acquisition Officer. He does not know whether any request
letter for consideration was sent or not. His land has been
acquired for the Batane Dam, but he has not filed any L.A. Case
and he is satisfied with the compensation paid to him. It is not
correct to say that barren land was acquired.
19. Claimant Witness No.4, Sanjay Kumar Singh filed his affidavit
on oath stating that the claimant is his mother and is a
pardanashin lady and he has been authorised by her to monitor
the case and to depose in the case and he is deposing on behalf
of his mother. The lands bearing Plot No.194 measuring 0.59
acres, Plot No.191 measuring 0.20 acres, Plot No.192 measuring
1.11 acres, Plot No.195 measuring 0.41 acres and Plot No.195
measuring 0.20 acres appertaining to Khata No.50 situated at
Village- Gulabjhari, Thana- Chhattarpur were in the name of
his mother which have been acquired by the Government for
the Batane Dam, but a compensation amount of Rs.26,629.00
only has been paid. The land of the claimant was fertile and
valuable which was developed by hard work and investment.
The land was having good means for irrigation and the water
level was also good and therefore, the production was
abundant and there was much reliefs to the claimant. The
claimant has not been paid adequate compensation as per the
development made over the lands and the actual value of the
lands has not been assessed. No compensation for the well
constructed over the land has been paid to the claimant and
after the acquisition, the claimant has to construct a separate
house which has caused substantial monetary, mental and
physical losses. The claimant has claimed for payment of
compensation in the case as per the market value of the lands
and her claim is true. He exhibited his signature on the
authorisation document (Power of Attorney) as Exhibit-1. In his
cross-examination, he stated that he cannot say as to when the
compensation was paid. The objection petition was filed in the
year 1989 after 1½ year of receiving the compensation. The
compensation was received from the Land Acquisition Officer,
Aurangabad and the payment was received with objection, but
he cannot say whether the case was sent to the court for
disposal with the objection or not. It is true that his mother
used to do pairvi of the case through lawyer. He is deposing in
view of the application filed in the court. He knows that his
mother has filed some documents attested by the Aurangabad
office. The same facts were stated in the objection which were
written in the affidavit regarding the acquired lands and he will
file the same. It is not correct that the land was tarn and barren
land and it was not a residential land. 400 persons of his village
have got displaced due to acquisition of the lands and most of
them have got compensation, but payment is due to be paid to
some of them. It is not correct to say that the government has
paid the compensation after proper determination. It is not
correct to say that the land was away from town and was a
barren land and his claim is baseless.
20. Claimant Witness No.5, Mukesh Kumar filed his affidavit on
oath stating that he knows the claimant and he had occasion to
visit her residential place situated at Gulabjhari and to see the
disputed land and documents from her husband namely, Late
Jwala Prasad Singh which are in the name of the claimant. The
land of the claimant was situated under Khata No.50 at
Gulabjhari which has been acquired by the Land Acquisition
Department and minimum compensation has been paid. The
land of the claimant was fertile and valuable and its water level
was high and the claim of the claimant for higher compensation
against the acquired land is true. In his cross-examination, he
stated that Late Jwala Prasad was the husband of Pramila Devi,
the claimant. He cannot say whether the compensation was
paid after the protest or without protest. He does not know
whether the case has been sent by the Land Acquisition Officer.
It is not correct to say that he has no knowledge about the land.
There is no cultivation in the village and he has not done
cultivation over the land.
21. The claimant exhibited the authorisation document (Power of
Attorney) as Exhibit-1 and four sale deeds as Exhibits- Sale
Deed No. 112 dated 19.01.1978 (Exhibit-2), Sale Deed No. 283
dated 12.02.1979 (Exhibit-2/a), Sale Deed No. 2907 dated
30.11.1977 (Exhibit-2/b) and Sale Deed No. 9601 dated
29.12.1976 (Exhibit-2/c) before the learned Reference Court and
also exhibited two Old Survey Maps as Exhibits- 3 and 3/A.
22. The learned court below dismissed the case by holding that the
compensation was rightly paid on the basis of Sale Deed No.
9601 dated 29.12.1976 (Exhibit-2/c). The learned court below
could not have refused to consider the sale deeds dated
19.01.1978 and 12.02.1979 solely on the ground that same was
within three years prior to the date of notification.
23. This Court is of the considered view that the learned court
below could not have refused to consider the sale deeds dated
19.01.1978 and 12.02.1979 solely on the ground that same was
within three years prior to the date of notification. So far as sale
deed dated 29.12.1976 is concerned, same was beyond three
years from the date of notification. There is no dispute that
value of the land to be assessed has to relate to the value of land
as it existed on the date of notification. Accordingly, sale deed
of the year 1976 could not have been the basis for determination
of market price of the acquired land when sale deeds dated
19.01.1978 and 12.02.1979 were available for comparison which
were more approximate in time to the date of notification
issued under section 4 of the Land Acquisition Act, 1894.
24. Admittedly, the value of the property so far as sale deed dated
19.01.1978 and 12.02.1979 are concerned, same are higher than
value which has been mentioned in deed dated 29.12.1976 on
the basis of which compensation has been assessed by the
learned court below.
25. So far as sale deed dated 19.01.1978 is concerned, from the
boundary mentioned in the sale deed itself, this property was
located by the side of the road and this Court finds that one of
the plus factors for the purpose of valuation as laid down by
the Hon'ble Supreme Court is proximity to a road. In the
instant case, there is no evidence on record that the acquired
land involved in this case was also near to any road, rather it
has been observed by the court below that the land involved in
this case is away from the village. In such circumstances, this
Court finds that sale deed dated 19.01.1978 cannot be the basis
for the purposes of fixing the market value of the property
which is involved in this case.
26. During the course of hearing, none of the parties have relied
upon sale deed dated 29.12.1976 or sale deed dated 19.01.1978
for the purposes of determination of market value of the
acquired land. The appellants have relied upon sale deed dated
30.11.1977 (Exhibit 2/B) and the respondents have relied upon
sale deed dated 12.02.1979 (exhibit- 2/a).
27. A plea has been raised by the appellant to consider Sale Deed
No. 2907 dated 30.11.1977 (Exhibit-2/b) as a sale exemplar and
other awards passed relying upon Sale Deed No. 2907 dated
30.11.1977 filed along with supplementary affidavit before this
Court.
28. The appellant filed supplementary affidavit before this Court
showing that for the land in the same village acquired at the
same time the land owners were granted compensation @
Rs.45,000/- per acre. The awards in 4 such reference cases being
L.A. Case No.12/1989, 27/1989, 32/1989 and 52/1989 have
been filed by way of supplementary affidavit which were based
on the sale deed dated 30.11.1977 (Exhibit 2/B). As per the
appellant, the aforesaid awards in other reference cases filed by
way of supplementary affidavit be taken into consideration for
deciding this appeal.
29. So far as consideration of awards passed in other reference
cases is concerned, this Court is of the considered view that the
same cannot be considered to decide this appeal. No steps have
been taken by the appellant to adduce any additional evidence
under Order 41 Rule 27 to bring on record the aforesaid awards
so as to allow the respondents the opportunity to lead evidence
in rebuttal. The awards and judgements in case of others being
inter parte, are not binding as precedents. Such views have
been expressed by the Hon'ble Supreme Court in the
judgement reported in (2018) 13 SCC 96 (Manoj Kumar and
others Vs. State of Haryana) at para 13, 14, 17 and 18 which are
quoted as under:
"13. The awards and judgment in the cases of others not being inter
partes are not binding as precedents. Recently, we have seen the trend
of the courts to follow them blindly probably under the misconception
of the concept of equality and fair treatment. The courts are being
swayed away and this approach in the absence of and similar nature
and situation of land is causing more injustice and tantamount to
giving equal treatment in the case of unequals. As per situation of a
village, nature of land, its value differ from distance to distance, even
two to three kilometre distance may also make the material difference
in value. Land abutting highway may fetch higher value but not land
situated in interior villages.
14. The previous awards/judgments are the only piece of evidence on a
par with comparative sale transactions. The similarity of the land
covered by previous judgment/award is required to be proved like any
other comparative exemplar. In case previous award/judgment is based
on exemplar, which is not similar or acceptable, previous
award/judgment of court cannot be said to be binding. Such
determination has to be outrightly rejected. In case some mistake has
been done in awarding compensation, it cannot be followed; on the
ground of parity an illegality cannot be perpetuated. Such
award/judgment would be wholly irrelevant.
17. To rely upon judgment/award in case it does not form part of
evidence recorded by the Reference Court, an application under Order
41 Rule 27 is to be filed to adduce evidence and if it is allowed,
opposite party has to be given opportunity to lead evidence in rebuttal.
The award/judgment cannot be taken into consideration while hearing
arguments unless they form part of evidence in the case.......
18. This Court has clearly laid down that such judgment/award
cannot be received in evidence and considered without giving an
opportunity of rebuttal to opposite parties by adducing evidence. At
the stage of appeal if award/judgment has to be read in evidence, an
application has to be filed under Order 41 Rule 27 of the Code to take
additional evidence on record and if allowed, opportunity to lead
evidence in rebuttal has to be allowed."
30. The other awards relied upon by the appellant having not been
brough on record by filing additional evidence under order 41
Rule 27 cannot be considered for deciding this appeal.
31. Further, the learned counsel for the appellants has specifically
argued that the sale deed dated 30.11.1977 (Exhibit 2/B) should
be considered as a sale exemplar instead of sale deed dated
12.02.1979 (exhibit- 2/a). This Court finds that Sale deed dated
30.11.77 was sale of 19 decimal of land for consideration of
9000/- i.e., @ 475/- per decimal and sale deed dated 12.02.1979
(exhibit- 2/a) was for 40 decimals of land for Rs.7,000/- i.e., @
175/- per decimal. The sale deed dated 30.11.1977 (Exhibit 2/B)
is much smaller as compared to sale deed dated 12.02.1979
(exhibit- 2/a) and is certainly much closer in terms of the area
of the acquired land which is 251 decimals. Moreover, so far as
sale deed dated 30.11.1977 (Exhibit 2/B) is concerned, the
learned court below has assigned reasons for not considering
this deed by holding that the property involved in deed dated
30.11.1977 was closer to the village. There is no evidence on
record to show that the acquired land of this case was near any
village. The appellant has mentioned about the exhibited map
but has neither advanced any argument nor has placed the map
before this Court to demonstrate that the acquired land is near
any village. The learned court below has held that it is not clear
from the map that the acquired land is either near the village or
residential area. No material has been brought to the notice of
this Court to differ with the findings of the learned court below.
32. This Court also finds that sale deed dated 12.02.1979 (exhibit-
2/a) is more approximate in time when seen with respect to the
date of acquisition of land as compared to sale deed dated
30.11.1977 (Exhibit 2/B). This Court further finds that the Sale
Deed dated 12.02.1979 (Exhibit-2/a) is related to 40 decimals of
raiyati agricultural land which has been sold for a total
consideration amount of Rs.7,000/- and the land is out of
ceiling area and is situated within the same Mouza/Village-
Gulabjhari, Thana No.184, P.S.- Chhattarpur, District Palamau
as the acquired lands of the appellants.
33. Apart from the aforesaid findings, this Court is also of the
considered view that the plea of the appellants to consider sale
deed dated 30.11.1977 (Exhibit 2/B) as as a sale exemplar
cannot be accepted on account of the fact that the earlier
judgment passed by this Court has been set aside and partly
allowing the appeal, the case has been remanded back for fresh
decision after considering the relevant factor while considering
the sale deed dated 12.02.1979 as a sale exemplar and thereafter
to decide and determine the exact market value and the
compensation to be paid to the original claimants and for this
purpose, the present appeal has been restored. Thus, neither on
merits nor considering the scope of remand, Sale Deed No. 2907
dated 30.11.1977 (Exhibit-2/b) can be considered as as a sale
exemplar to arrive at the market price of the acquired land.
34. The sale deed dated 12.02.1979 (Exhibit-2/a) being close
proximity in time to the date of notification dated 01.10.1980 is
to be considered as as a sale exemplar with other factors as
mentioned in para 20 of the judgement passed by Hon'ble
Supreme Court in the judgement reported in (2005) 4 SCC 789
(supra) in terms of the directions and observations passed by
the Hon'ble Supreme Court while partly allowing the appeal
and remanding the matter for fresh consideration to arrive at
the market price of the acquired land. Apart from this, suitable
price rise @ 12% per annum is also required to be considered
there being a time gap of 1 year 8 months from the sale deed
dated 12.02.1979 till the date of notification under Section 4.
35. The learned counsel for the appellants has argued that
following factors are to be considered as positive factors for
determination of market value: -
(i) Smallness of size - the size is 2.51 acre only.
This court finds that the land acquired is larger than the sale
deed dated 12.02.1979 (exhibit- 2/a) which is the sale exemplar.
The sale deed is for an area of 40 decimal and the acquired
property is for an area of 251 decimal. Thus, the size of the
property involved in this case cannot add up in value when
compared to the sale deed dated 12.02.1979 (exhibit- 2/a).
(ii) Proximity to a road - proximity 200 yards is far away
from the populated area of the village.
No such evidence has been pointed out by the learned counsel
for the appellants to substantiate this plea. Rather the P.W-
has stated that the acquired property is much away from the
road. This Court finds that as per Claimant Witness No.2
(Pyari Bhuiyan), the acquired land is situated at a distance of 6
miles from Hariharganj road and there is no other oral or
documentary evidence on record showing proximity of the
acquired land to any road or frontage on any road or nearness to
any developed area or any special value of the acquired lands.
(iii) Frontage on a road - there is village road frontage near to
village road situated on the Pokhar.
No such evidence has been pointed out by the learned counsel
for the appellants to substantiate this plea. Rather, there is no
road frontage to the acquired property.
(iv) Nearness to developed area - there is nearness 1.5 k.m. to
developed area.
No such evidence has been pointed out by the learned counsel
for the appellants to substantiate this plea.
(v) Regular shape - the regular shape as it is an agricultural
area.
No such evidence has been pointed out by the learned counsel
for the appellants to substantiate this plea.
(vi) Level vis-à-vis land under acquisition level of land under
acquisition was below the level, normal land. The
acquired land is comparable to the sale deed dated
12.02.1979, the sale exemplar.
(vii) Special value for an owner of an adjoining property to
whom it may have some special advantage - there is no
special advantage or value pointed out by the learned counsel
for the appellants.
36. With regard to the negative factors, it has been pointed out by
the learned counsel for the respondents by stating that the land
is medium sized land; it is in the interior and far away from the
road; the land is normal and has no narrow strip; it is low level
agricultural land; there is no special disadvantage to deter the
purchaser and land is in remote area and the price is not more
than the price quoted in sale deed dated 12.02.1979 (exhibit-
2/a), the sale exemplar.
37. Considering the totality of evidences on record and from the
arguments of the parties, this Court finds that neither the
appellants have been able to show any evidence on record to
have any positive factor to add up to the value of the land over
and above what has been mentioned in sale deed dated
12.02.1979 (exhibit- 2/a) nor the respondents have been able to
point out any evidence on record to have any adverse impact
on the value of the land to reduce it to less than what has been
mentioned in sale deed dated 12.02.1979 (exhibit- 2/a) and
rather the respondents are agreeable to the same rate as
mentioned in sale deed dated 12.02.1979 (exhibit- 2/a) with an
price rise @12% per annum for 1 year 8 months for the time gap
between the 12.02.1979 and the date of notification under
Section 4 of the Land Acquisition Act.
38. In course of hearing, the learned counsel for the appellants did
not raise any argument in connection with description or
valuation of the house, well and trees and has simply submitted
that no value has been paid for the same. The learned court
below has also not found sufficient evidence with regard to
description or valuation of the house, well and trees. It is also
important to note that in the earlier round of hearing while
passing the earlier judgment disposing of the first appeal, it
was specifically recorded in para 6 of the judgement that so far
as claim regarding existing house and /or well and fruit trees
over the property is concerned, same has been rejected by the
learned court below by citing reasons, as the same could not be
proved by the appellants, accordingly, this aspect of the matter
was not pressed. The appeal has been partly allowed by the
Hon'ble Supreme Court with a direction to decide the case
afresh in the light of the observations and directions issued in
the order of remand. Otherwise also, as there is no evidence on
record regarding the description or valuation of
house/well/trees etc. to arrive at any value of the same. This
Court is of the considered view that the learned court below
has rightly rejected such claim after appreciating the evidences
on record on account of insufficiency of evidence for
assessment of value of house/well/trees etc. The finding of the
learned trial court on this point calls for no interference.
39. Accordingly, the impugned judgment dated 24.08.2006 and the
award dated 21.09.2006 passed by learned Subordinate Judge-
II, Daltonganj in Land Acquisition Case No. 14/1989 is
modified to the extent that the compensation is to be assessed
and paid to the appellants on the basis of Sale Deed dated
12.02.1979 (Exhibit-2/a) and not on the basis of Sale Deed dated
29.12.1976 (Exhibit-2/c) with price rise @ 12% per annum for
one year and eight months as there was a time gap of one year
eight months between the Sale Deed dated 12.02.1979 (Exhibit-
2/a) and the notification dated 01.10.1980 issued under Section
4 of Land Acquisition Act, 1894.
40. Consequently, on the basis of the total consideration amount of
Rs.7,000/- for 40 decimals of land as mentioned in the Sale
Deed dated 12.02.1979 (Exhibit-2/a), the market value of the
acquired lands of the appellants is assessed at Rs.175/- per
decimal (7,000/40 = 175) i.e. Rs.17,500/- per acre plus interest @
12% interest per annum for one year eight months.
The calculation of market value of acquired land is as follows:
As per sale deed dated 12.02.1979
7000/- for 40 decimals: 1 acre = 100 decimal
17,500/- for 1 acre
Rs. 175/ per (1 decimal)
Market value as on the date of notification under Section 4
Rs. 175/ per (1 decimal) plus interest @ 12% per annum for 1
year 8 months i.e 20 months.
175 plus 175 x 12 /100 x 20/12 = 175+35 = Rs.210 per decimal
Total acquired area - 251 decimals
Total market value -Rs.52,710/-
41. The appellants would be entitled for compensation under
Section 23 (1) of the Land Acquisition Act, 1894 taking into
consideration the aforesaid market value of the property as on
the date of the publication as determined above. Further, the
appellants would be entitled for additional compensation in
terms of Section 23 (1) (A) of the aforesaid Act @ 12% per
annum on the market value. The appellants would further be
entitled for 30 % solatium on the aforesaid market value in
terms of Section 23 (2) of the aforesaid Act. Under Section 34 of
the aforesaid Act, the appellants would also be entitled to
interest of 9 % for the first year from the date of taking
possession and in case, it was not paid within one year from the
date of possession, interest @ 15% per annum would be
payable.
42. The office is directed to prepare a decree on the basis of the
aforesaid findings and observations.
43. The office is further directed to transmit the records of the case
to the learned court below for the purpose of execution of the
decree.
(Anubha Rawat Choudhary, J.)
Saurav/
