Madhya Pradesh High Court
Anita Sand vs The State Of Madhya Pradeshs on 2 December, 2021
Author: Arun Kumar Sharma
1
HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT AT
JABALPUR
(SINGLE BENCH : HON'BLE SHRI JUSTICE ARUN KUMAR
SHARMA)
First Appeal No.289/2008
Jethmal Sand (since dead)
Through His LRs Narendra Sand S/o. Late Shri Jethmal Sand
Vs.
The State of M.P. and three others;
First Appeal No.290/2008
Anita Sand W/o. Shri Narendra Sand
Vs.
The State of M.P. and three others
&
First Appeal No.291/2008
Narendra Sand
Vs.
The State of M.P. and three others
Shri Greeshm Jain, Advocate for the Appellants.
None for respondents no. 1 to 3 / State.
Shri R. N. Singh, learned Senior Advocate assisted by Shri Arpan J.
Pawar, Advocate for Respondent no. 4.
____________________________________________________________
Whether approved for reporting : (Yes/No).
JUDGMENT
(02-12-2021)
As the similar issue is involved in all the aforesaid appeals,
therefore, they are being disposed of by this common order.
2. These appeals under Section 54 of the Land Acquisition Act,
1894 read with section 96 of the Code of Civil Procedure have been filed
against the judgment dated 26.02.2008 passed by Second Additional
District Judge, Khandwa, District Khandwa (MP), in Reference Cases
No.370/07; 369/07 & 270/07 filed by the appellants separately arising out
of Reference Applications filed under Section 18 of the Land Acquisition
Act, 1894 (hereinafter referred to as 'the Act') by the appellants against the
award dated 15.04.2004 passed by the Land Acquisition Officer, N.H.D.C.,
Harsood No.1, Khandwa, in Revenue Case No.4A/82/ Year 2000-2001.
3. The facts which are necessary to be stated here are that the
appellants are permanent resident of Gram Mohiriyat, Nagar Panchayat,
Harsood, Tahsil Harsood, District Khandwa (MP) which is a thickly
populated town having good market area and is within the boundaries of
Nagar Panchayat. The appellants are exclusive owners of the land which
have been acquired by the respondents for the development of Indira Sagar
Project. Appellant Jetmal Sand (now dead) was having land bearing Khasra
No.185/4 area of 19.06 acre, out of which, total Rakwa of 18.52 have been
acquired, appellant Smt. Anita is having land bearing khasra no.185/3 area
of 2.00 acre have been acquired and appellant Narendra is having land
bearing Khasra No.185/1 area of 0.50 acre have been acquired. With regard
to the acquisition of the aforesaid land, a notification was published in
official gazette dated 24.08.2001 under section 4(1) of the Land Acquisition
Act and after completing all due formalities and providing due
opportunities of hearing to the rival parties, the aforesaid land were
acquired by the respondents under the Land Acquisition Act, 1894 for
development of Indira Sagar Project. The land acquisition officer passed an
award on 15.04.2004, whereby total value of the land belonging to Jetmal
was determined at Rs.30,12,637/-; the land belonging to Smt. Anita was
determined at Rs.10,26,907/- and the land belonging to Narendra was
determined at Rs.10,554/-. Being aggrieved by the aforesaid award,
applications under Section 18 of the Land Acquisition Act were preferred
by the appellants individually to the land acquisition officer which were
referred to the District court, Khandwa whereby they claimed that the
market value of the land fixed by the land acquisition officer is very meager
and does not consider the potential value of the land as well as the house
constructed thereon. They also claimed that the appellants were the sole
owner of the land, much before of issuance of notification dated
24.08.2001, all the appellants had moved an application before the
competent authority for diversion of the land, however, no action was
taken. Therefore, they separately filed writ petitions bearing
W.P.No.4561/02, W.P.No.4559/02 and W.P.No.4564/02 and this Hon'ble
Court was of the opinion that as the land has already come in submerge,
therefore, no relief can be granted and dismissed the writ petitions vide
order dated 13.5.2002. However, in the LPA separately preferred by the
appellants, A Division Bench of this Hon'ble Court vide its order dated
30.1.2004 was granted permission to the appellants to adduce appropriate
evidence to establish the market value and importance of the land. In the
Reference Court it has also been agitated by the appellants that the land
owner should be awarded compensation on the basis of valuation per square
foot and also prayed for enhancement of compensation. However, the
Reference Court on the basis of the evidence adduced and the documentary
evidence, partly allowed the reference preferred by the appellants namely
Jetmal and Smt. Anita and enhanced the compensation to the tune of
Rs.2,18,107/- payable to Jetmal and Rs.2,16,933/- to Smt. Anita, in addition
to the amount already awarded by the Land Acquisition Officer. But, the
Reference Court dismissed the reference filed by the appellant Narendra.
4. Learned counsel for the appellants questioning the correctness
of the award has contended that the Reference court has fallen into grave
error by awarding compensation on acreage basis though there are
contemporaneous sale-deeds as per Ex.A-21 with A-40 and A-43 and Ex.A-
22 with A-41 etc. indicating square foot price. The courts below have not
taken into consideration the fact situation, as a result of which, the effect
potentiality has been totally brushed aside. The land in question was most
developed land as all civil amenities like electricity, school, college, bank,
post office, market, petrol pump were within a radius of half kilometer
which is evident from Ex.A-7 to A-15 & A-20. Further the acquired land is
situated along the State Highway No.15 known as Khandwa- Hoshangabad
Road, having frontage of near about 2 acres (Ex.A-20, A-28, A-35, A-36 &
Ex.P-79 to A-108. It is also 100-150 meter away from the Railway Station
and was opposite to Railway Colony which is clear from Ex.A-20. The land
in question was almost in square shape, the Govt. P.G. College was situated
on it and office of Assistant Soil Conservator was next to it which is clear
from Ex.A-16, A-17 & A-18. One glaring aspect of the matter is that the
land was never used for agriculture purpose since more than 100 years as
the Cotton Zining Factory was situated in the appellants land since from
British time in the year 1912-1913 which demonstrate the land was fully
developed which is clear from Ex.A-38 & A-39. The land was situated
within the Nagar Palika Harsood in ward no. 12 of it. The land Acquisition
Officer as well as the Reference court have not taken into consideration the
report submitted by the revenue inspector and the report of S.D.O. which
would go a long way to show that the area adjacent to the acquired land was
sold on the basis of per square foot. The Reference Court has gravely erred
by not granting solatium and interest though the same is statutorily
payable. The appellants are entitled to interest on the entire awarded
amount including the solatium as the whole sum shall be regarded as an
amount of compensation for the purpose of grant of interest under the Act.
They prayed that the appeals be allowed and they be awarded compensation
@ 110/- per square foot.
5. On behalf of respondent no. 4/N.H.D.C. Ltd., it has been
stated that as per the market rate, value of the acquired land has been
determined and the value of the acquired land and other material is also
correct and for other heads, the claimants are not entitled to any
compensation. The land acquisition officer has determined the
compensation in accordance with law. In support of his contentions,
reliance has been placed on the judgments of the Supreme Court in the
cases of Haridwar Development Authority vs. Raghubir Singh and
others (2010) 11 SCC 581; Deputy Collector (LA) vs. Madhubai
Gobarbhai (2009) 15 SCC 125 and Viluben Jhalejar Contractor (Dead)
by Lrs. vs. State of Gujarat (2005) 4 SCC 789 and prayed for dismissal of
the appeal.
6. Having considered the contentions advanced by learned
counsel for the parties and on perusal of the record in this case following
questions arise for disposal of this appeal :-
(I) Whether the order passed by the reference court is
correct in partially allowing the application of the appellants
filed u/s 18 of the L.A. Act?
(ii) Whether the prayer made by the appellants for granting
them compensation based on per square foot basis for large
chunk of area is correct and as per land?
(iii) Whether appellants have established that there land was
having potential value even though it was not diverted?
(iv) Whether appellants are entitled for the rates claimed by
them in appeal for determination of compensation @
Rs.110/- per square foot?
(v) Whether appellants are entitled to get the value of their
building and material based on the clause 2.4 of the Policy?
7. As all the questions are directly correlated to each other,
therefore, they are being considered together. The land of the
appellants were acquired under the Land Acquisition Act is
undisputed. It is also undisputed that under protest appellants have
accepted the compensation and land has come under submergence in
construction of Indira Sagar Project. It is also undisputed that
dissatisfied with the award applications u/s 18 of the Land Acquisition
Act were filed by appellants for referring the matter before the
Competent Court making prayer that they are entitled for the
compensation @ Rs.110/- per square foot. It is also undisputed that
the Reference court has partly modified the award passed by the
competent authority under the Land Acquisition Act.
8. The appellants have filed the aforesaid appeals mainly
on grounds that the Reference court has not taken into consideration
the order passed by the writ court as well as Division Bench of the
Hon'ble Court to the effect that the appellants are free to establish the
potential value of the land by leading evidence, even though their land
was undiverted. The Reference court has passed the award according
to the guidelines fixed by the respondents themselves in determining
the compensation. The Reference court has not correctly evaluated the
compensation in spite of the fact that ample evidence was available on
record in respect of potential value of the land. The Reference court
ought to have kept in mind the object of section 23 of the L.A. Act as
the court was only required to see the market value of the land. The
Reference Court has committed illegality in ignoring the policy
framed by the respondents, the appellants were entitled to get the
value of building structure based on policy.
9. The respondents in opposition have mainly raised in
defense the points that the Reference court has passed well reasoned
order and has dealt every aspect in detail, therefore, no interference is
called for. The price of large chunk of area cannot be determined for
compensation based on the per square foot. The order of Reference
court is based on policy framed by State Government and as the
policy is not under challenged, therefore, appellants are prevented
questioning the policy.
10. The appellants have mainly stressed on the ground that
their land were having high potential value, therefore in spite of the
fact that it was undiverted they are entitled for market value of the
land as has been paid to others. In support of their contention large
number of documents have been exhibited before the Reference court
and it was contended on the basis of these documents that their land
was fully developed and was on the State Highway No.15 with
frontage of 2 Acres having Electricity, Water, Road, Facility, and for
that purpose Exhibit A-20, A-28, A-35 have been strongly relied upon,
these exhibits are maps of Nagar Panchayat Harsood, in which, land
of the appellants is shown. It has been pointed out that opposite to
lands of the appellants Railway Station, various shops, offices, roads,
government building etc. are situated, appellants have also relied on
Exhibits A-79 to A-108 which are photographs to establish that after
submerging and acquisition of the appellants' land the rehabilitation
camps were set up by respondents on their lands by constructing Tents
for staying of near about 8000 people, because the appellants' land
were fully developed in entire Nagar Panchayat of Harsood no better
lands than the appellants was available for rehabilitation purpose. The
appellants have stated that their land were plain as well as parallel to
State Highway Road and had all facilities of developed land and in
fact, it was also fully developed and was in square shape. The
Government PG College was situated on it as the land and building
were given on rent to the State Government, two decade back. To
support their contention Exhibits A-16 to A-18 which are rent
agreements with the Education Department of Government of M.P. to
run the Government P.G. College were placed on record.
11. The appellants have forcefully submitted that by Exhibit
A-17 to A-20 it is established that in near vicinity of their land many
government offices were situated that like of Electricity Board, Bank,
School, Post Office, Petrol Pump, Police Station etc. and all these
were within radius of 500 meters. It was also pointed out that 100
years back on their land Cotton Zining Factory was set up and since
then land is a developed land reliance have been placed on Exhibit A-
19 and A-38. The appellant have submitted that in spite of the fact that
many land owners who were having inferior land and away from the
main road i.e. State Highway No. 15 only because lands were diverted
land or small piece of land they have been paid compensation @ Rs.
39.29/- per square foot and for that exhibits A-21 to A-32 have been
relied. It has further been submitted that the evidence of appellants
were untouched whereas in evidence of respondents the land
acquisition officer DW-1 in his cross examination has admitted that
the land of the appellants were developed and in proximity of
Railway Station and because of having all development facilities like
Electricity, Water, Road, Drainage, rehabilitation camps after
acquisition were setup. The appellants have relied on large number of
case laws in support of their contention, A Division Bench of Hon'ble
High Court in the matter of Hira Devi Vs. State of M.P. ILR 2009
MP 104 has held that as payment of higher compensation is payable if
the land is adjacent to the road almost identical pronouncement of law
has been made in the matter of Union of India Vs. Ramprasad,
(2006) 3 MPLJ 397 and Ahad Brothers Vs. State of M.P. AIR 1992
SC 229. The Hon'ble Apex Court in the matter of Rishipal Singh Vs.
Meerut Development Authority (2006) 2 MPLJ 434 has observed
that there is no bar if exemplars of small plot being considered when
other relevant or material evidence is not available only requirement is
deduction of appropriate land for development.
12. In matter of Land Acquisition officer Revenue Division
Chhitor Vs. L.Kamla (Smt.) dead by LR's (1992) 2 SCC 385, the
Apex Court was of the view that in case if no comparable sale of land
are available where large area has been sold, the small extent of land
could be taken note for determination of compensation after making
appropriate deduction against Road, Sewage, Drainage etc. In the
matter of Sajan Vs. State of Maharashtra, AIR 2020 SC 2344, the
Apex Court after deducting 20% of the land for development has
directed for determination of compensation of large area of land based
on the per square foot. In that case also the land was acquired for dam
project and partially it was developed, the Apex Court has held that
the land was developed in future residential colony could have been
setup. In the matter of Kamalkant Shrivastava Vs. State of M.P.
(2006) 4 MPLJ 317. The Division Bench of this Hon'ble Court was
also of the view that there is no bar in payment of compensation for
large area on basis of per square foot. Even though land was not
diverted and used for agriculture purpose, but compensation has to be
paid on the basis of potential value. That, based on the various case
laws and the law settled by the Apex Court there is no restriction on
this court to determine compensation of large area of land based on
the per square foot. The Apex Court in the case of Hasan Ali Khan
Vs. State of Gujarat 95 2MPWN 173 has cast duty on the court that
while assessing the market value of land court has to utilize its judicial
experience and not to sit like an empire, the court is required to
determine the correct market value after taking into account all the
circumstances on record by applying correct principle of law so that
just and proper compensation be determined and to do that it is its
Constitutional, Statutory and Social Duty. Section 23 of the Land
Acquisition Act very specifically contents that to determine the
compensation market value of the land is only required to be taken
into consideration, if any policy is framed contrary to section 23 then
it has no legal value. In light of the case laws as discussed above the
present set of facts when are to be tested and seen it is notable that the
land of the appellants was beside the state highway No.15, Khandwa -
Hoshangabad Road, very close to Railway Station and had all
necessary amenities of development like Water, Electricity, Drainage.
The major Government Offices were in 500 meters radius like Post
Office, Bank, School, Shops, Railway Quarter and Petrol Pump. The
Land Acquisition Officer himself has admitted regarding potential
value of the lands.
13. It might be case that the land of the appellants was not
diverted and however that count only the relief claimed by the
appellants could not be rejected specially when there is order of
Division Bench passed in the LPA No. 341/03, 344/03 & 343/03
permitting the appellants to establish the potential and market value of
the land by evidence. In almost in similar circumstances in case of
Sajan (Supra) the Apex Court has ordered for deduction of 20% land
for against development purpose and compensation at the rate per
square foot was ordered. In that case also the land was submerged for
construction of Hiwra Dam Project.
14. Appellant Jethmal had 18.52 acres of land and
compensation for this land was determined based on the acreage basis
whereas the lands which were in less advantageous position have been
compensated per square foot basis this itself is in violation of section
23 of the LA Act. The reference court has not kept in mind the object
of section 23, therefore, the order requires to be modified. It is clearly
established by the appellants that their land were fully developed and
had potential value. The appellants, therefore, in light of the
conspectus of above discussion entitle for compensation on the basis
of per square foot. In the present case the respondents themselves
have fixed the rate at Rs. 39.29/- per square foot, therefore, the
claimants of all these three appeals viz F.A. No. 289/2008, F.A.No.
290/2008 and F.A. 291/2008 are entitled to the compensation @
39.29/- per square foot after deducting of 30% of their land. Needless
to say that appellants are also entitled for solatium @ 30% which is
in-consonance with requirement of statute similarly interest as
required u/s 28 of the Act is also to be paid, however amount already
paid would be deducted from this.
15. The appellants have also submitted that as per policy
clause 2.4 Exhibits A-74 the land looser were permitted to take away
the structure building material with them. In the present case it has
been alleged that the Govt. P.G. College which was situated on the
submerged land, the structure of the building was not allowed to be
taken by the respondents as they have setup rehabilitation camps on
that, appellants have been prevented to get the benefit of Clause 2.2
and 2.4 of the policy. The witness of respondent DW-1 has also
admitted the fact that camps were setup for rehabilitation of near
about 8000 persons in the land of the appellants. Appellant Jethmal in
F.A. No. 289/2008 has claimed an amount of Rs. 14,99,876/- against
loss of building structure for which he was prevented due to
settlement of camps as claimed by Exhibit A-65 and Exhibit A-74.
The appellant Narendra Sand after the death of his father Jethmal,
therefore, is entitled to amount of Rs. 14,99,876/- with interest at the
rate 10% from the date it became due i.e. 25.08.2004.
16. An application under Order 22 Rule 3 read with Rule 5 as
I.A. No. 429/2016 has been filed by Bharti Sand, Samekit Sand and
Astha Sand on the strength that they are also legal representative of
Late Jethmal Sand who died during pendency of Appeal and Narendra
Sand on the strength of Will executed by Jethmal Sand has been
substituted as Sole Legal representative of Jethmal Sand.
17. These three persons have also filed similar application
though on different provision on CPC in the Appeal filed by husband
and father of Children Jitendra Sand, the Division Bench by its order
dated 10.09.2015 passed in F.A. No. 366/08 has rejected their
application observing that if the applicants have any right to receive
alumni, maintenance or any amount from the appellant on account of
their marital status, they will claim in accordance with law not in the
Appeal filed under LA Act.
18. It is also noted that these three applicant have also
approached to Civil Court in different matters claiming legal
representatives of Jethmal Sand, however they have compromised
their matter and in fact suit filed by them questioning the Will dated
20.10.2019 executed by Jethmal Sand as null and void has been
withdrawn, therefore in the light of the above, I deem it proper to
reject the application as it is merit-less and baseless as has no force of
law. Hence I.A. No. 429/2016 is dismissed holding that they have no
right to be impleaded as legal representative of Jethmal Sand and not
entitled for any amount payable to Jethmal Sand in F.A. No.
289/2008.
The appeals are allowed to the extent as stated above. All other
applications pending are disposed off accordingly.
(ARUN KUMAR SHARMA)
JUDGE
JP/-
JITENDRA KUMAR
PAROUHA
2021.12.02 14:00:57 +05'30'
