FIRST APPEAL No. 269 OF 2003 Against the Judgment and Decree dated 02.05.2003 passed by Sri Shiva Shankar Sharma, Ist Addl. District Judge, Nawada in L.A. Case No.469 of 1986 / 17 of 1994. THE STATE OF BIHAR & ANR ……..……..……….Opposite Party-Appellant Versus BALESHWAR RAJWAR ……………………………Applicant-Respondent ******** For the Defendant/Appellant : Mr. R.K. Sinha, J.C. to G.P.2. For the Interveners/Respondents : Mr. Rabindra Nath Dubey, Advocate Mr. Sanjay Kumar, Advocate Dated: The 21st day of September, 2010 P R E S E N T THE HON'BLE MR. JUSTICE MUNGESHWAR SAHOO J U D G M E N T Mungeshwar Sahoo, J. This First Appeal has been filed by the State of Bihar against the Judgment and Decree dated 02.05.2003 passed by Sri Shiva Shankar Sharma, the learned Ist Addl. District Judge, Nawadah in L.A. Case No.469 of 1986 / 17 of 1994 (2) It appears that the lands of the respondent measuring 17 acre comprised within Khata No.62, Plot No.28 of vill. Bhitiya was acquired for construction of Phulwariya Reservoir Scheme in case No.7 of 1982-83. Award no.89 amounting to Rs.68,257.58/- was prepared in the name of State of Bihar and it was deposited in the treasury. The applicant-respondent filed application under Section 18 and 30 of -2- the L.A. Act claiming that he is the owner of the land and, therefore, the award should be prepared in his name and further said that the value of the land acquired is Rs.500 per decimal but the award has been prepared at very low rate without any local verification or inspection. The said application was referred to the land Acquisition Judge for determination. (3) The claim of the applicant-respondent in short is that the father of the respondent, namely, Bhuneshwar Rajwar had acquired the land through Hukumnama from the ex-landlord. The ex-landlord accepted rent and also granted rent receipts. After his death, the applicant-respondent inherited the property and came in possession. On the vesting of zamindari, the State of Bihar also recognized the applicant as raiyat and rent receipts were granted to him. The Land Acquisition Officer wrongly prepared the award in the name of State of Bihar and deposited the same in the Treasury. (4) The further case of the applicant-respondent is that the quantum of compensation fixed by the Collector is very low because the market value of the lands acquired is Rs.500/- per decimal. (5) It appears that in support of his case, the applicant has examined two witnesses and also produced documentary evidences regarding his claim of title. The State of Bihar also examined one witness and proved two documents. (6) After trial, the learned Land Acquisition Judge by the impugned Judgment and Decree held that the applicant-respondent is the title holder of the land and relying upon Exhibit 6, the Judgment of L.A. Case No.149 of 1985 fixed the market value of the present acquired land at the rate of Rs.300/- per decimal and thereby the compensation awarded by the Collector was enhanced to -3- Rs.23,97,985/-. (7) The learned counsel appearing on behalf of the appellant submitted that the Land Acquisition Judge has not followed the well settled principal of law while fixing the compensation. The learned counsel further submitted that the learned Land Acquisition Judge has wrongly relied upon Exhibit 6 because the nature of the land involved in Exhibit 6 are homestead land which measures only small area in decimals whereas in the present case, an area of 17 acre of land has been acquired by the State of Bihar and, therefore, market value of the land involved in this case could not have been equated with the market value of the land involved in Exhibit 6. (8) On the other hand, the learned counsel appearing on behalf of the respondent submitted that the lands involved in Exhibit 6 were also acquired for the same purpose for which the lands involved in this case were acquired and by same notification, therefore, the learned court below has rightly fixed the same value. The learned counsel relied upon a decision reported in 1996 (2) P.L.J.R. 151 (The State of Bihar Vs. Maheswary Prasad and submitted that best evidence is the Judgment and Decree passed by the Special Judge in relation to the different reference cases. (9) In view of the above submissions of the learned counsels for the parties, the points arises for consideration in this Appeal is whether the compensation awarded by the Land Acquisition Officer is just and proper compensation or whether the market value fixed by the Land Acquisition Judge is just and proper. (10) It may be mentioned here that so far title of the applicant- respondent is concerned, the learned counsel for the appellant has not addressed this Court at all. Both the parties argued the case only in -4- relation to quantum of compensation enhanced by the Land Acquisition Judge. Therefore, it appears that so far title of the respondent is concerned, no dispute is raised by the appellant before this Court. In such circumstances, it appears that the appellant has admitted the title of the land holder. (11) So far quantum is concerned, now, let us consider the evidence available on record. P.W.1, Baleshwar Rajwar, applicant- respondent. Regarding the market value of the lands acquired, he has stated at paragraph 8 that along with his land, the land of Jageshwar Sao and Ors. of the same village were also acquired. In those cases, Judgment has been pronounced by the Land Acquisition Judge. The lands involved in those cases are same nature with the land of this witness. He has also stated that 3 crops are cultivated in the lands acquired in this case and the market value is Rs.500/- per decimal. This is the only evidence regarding market value. P.W.2 also has stated that the lands are fertile land and lands of Jageshwar Sao and Ors. of the same village were acquired and there has already been decision. Except these evidences, there is no other oral evidence. (12) The earlier Judgment has been produced which has been marked as Exhibit 6 in this case. The other documents, that is Exhibit 1 to 5 relates to tile of the claimant. From perusal of the impugned judgment, it appears that the learned Court below relying upon Exhibit 6 held that all those lands were of the same village and the learned District Judge has fixed the compensation at the rate of Rs.300/- per decimal. The learned Court below also held that A.W.I has stated that the lands of Jageshwar Sao are contiguous and same as that of the land involved in this case. (13) The learned counsel for the appellant submitted that the -5- learned Land Acquisition Judge did not apply his mind to the nature of land involved in Exhibit 6 and merely relied upon the oral evidence. The learned counsel placed Exhibit 6 in extent so. From perusal of Exhibit 6, it appears that by the said Judgment, Exhibit 6, 10 land reference cases were decided. It further appears that the land involved in that case was also acquired for the same purpose by the same notification. The lands involved in those cases have been detailed in paragraph 3 of the Judgment exhibit 6. From perusal of the same, it appears that in all those cases, the lands are homestead land measuring about 12 decimal 26 decimal 34 decimal, 3 decimal, 13 decimal 17 decimal and 40 decimal etc. In this present case, it is the case of the applicant himself that these lands are agricultural land and it measures 17 acres. The learned counsel for the claimant submitted that the lands are of same village. So far this submission is concerned, in my opinion, it has got no force. Only because the lands are of same village, no market value can be fixed for every inch of land acquired on same rate irrespective of the fact that the nature of the lands are different. The learned Court below has not at all looked into the nature of the land involved in Exhibit 6 and that involved in the present case. (14) So far decision relied upon by the learned counsel for the respondent that is the case of State of Bihar Vs. Maheshwary Prasad (Supra) is concerned, it has been held that the award passed by the Special Judge in relation to different reference cases arising out of the same land acquired under the same and single notification can be relied upon in determining the compensation payable. Therefore, it appears that in that case, same land was involved. Nature of the land was not different. This Court also relied upon the case of Special -6- Land Acquisition Officer Vs. Sri Siddapa Omanna Tumari reported in A.I.R.1995 Supreme Court 840, wherein it has been held that the award in respect of the same land covered under same notification cannot be ignored by the Court while determining compensation payable for other acquired land covered under the same notification. Therefore, in the case before the Hon’ble Supreme Court also same land was acquired. In other words, the nature of the land was not different. As stated above in the present case the nature of land involved in Exhibit 6 are of different persons measuring small areas and are homestead land whereas the lands involved in this reference case is 17 acres. No evidence has been adduced by the applicant to the effect that the award of the Collector is inadequate. (15) In the case of Ahamdabad Municipal Corporation Vs. Sharda Ben and others 1996 (8) SCC 93 the Hon’ble Supreme Court has held that the burden is on the claimants to prove by adducing reliable evidence that the compensation offered by the Land Acquisition Officer is inadequate and the lands are capable of fetching higher market value. It is the duty of the Court to closely scrutinize the evidence, apply the test of prudent and willing purchaser i.e. whether he would be willing to purchase in open and normal market conditions of the acquired lands and then determine just and adequate compensation. As stated above in the present case this burden has not been discharged by the claimants. (16) In 1996 (3) SCC 766 Hookiyar Singh and others Vs. Special Land Acquisition Officer, Moradabad and another, the Hon’ble Supreme Court has held that it is settled law that the burden of proof of market value prevailing as on the date of publication of notification under Section 4(1) of the L.A. Act is always on the -7- claimants. The Hon’ble Supreme Court has also held that though the Apathy and Blatant lapse on the part of the acquiring officer to adduce evidence and also improper or ineffective or lack of interest on the part of counsel for the State to examine the witnesses, on material facts it is the duty of the court to carefully scrutinize the evidence and determine just and adequate compensation. All these decisions of the Hon’ble Supreme Court clearly speaks that it is the burden of the claimants to satisfy the Court that the compensation awarded by the Land Acquisition Officer is inadequate. In the present case, it appears that this burden has not been discharged. The applicant based his case only on Ext.6. (17) In the case of State of U.P. and Ors Vs. Ram Kumari Devi (Smt.) reported in 1996 (8) S.C. Cases 577, the Hon’ble Supreme Court has also held that it is well-settled principle that it is the duty of the court to assess reasonable compensation. Burden is on the owner to prove the prevailing market value. On adduction of evidence by the parties, the acid test which the court has to adopt is that the court has to sit in the armchair of a prudent purchaser, eschew feats of imagination and consider whether a reasonable prudent purchaser in the open market would offer the same price which the court is intending to fix the market value in respect of the acquired land. Since it is a compulsory acquisition, it is but the solemn duty of the court to assess reasonable compensation so as to allow the same to the owner of the land whose property has been acquired by compulsory acquisition and also to avoid needless burden on public exchequer. (18) As has been held by the Hon’ble Supreme Court in the above decisions, the burden was on the respondent to adduce reliable -8- evidence to the effect that the compensation fixed by the Land Acquisition Officer is inadequate and that the lands are capable of fetching higher market value. When 17 acre of land is offered for sale in open market, no prudentman would have offered to purchase the land on the basis of decimal basis of homestead land. It is also well settled principal of law that for deciding market value, the purpose for which the land is acquired is also a factor to be considered. In this case, the lands of the applicant measuring 17 acre was acquired for the purpose of water reservoir. There is no evidence regarding potentialities of the lands acquired. There is no evidence regarding the facility of irrigation. Only one line evidence is there that 3 crops are cultivated. (19) In view of the above facts and circumstances of the case and the evidences available on record, in my opinion, the leaned Court below should not have based his decision on Exhibit 6. As has been held by the Hon’ble Supreme Court, the Court is required to assess reasonable compensation for the land owner and also is required to see needless burden on public exchequer. In the present case, there is no finding of the learned Court below that the award given by the Land Acquisition Officer is inadequate and the learned Land Acquisition Judge has increased the compensation from Rs.65,000/- and odd to Rs.23 lakhs and odd. (20) In view of my above discussion, I find that the learned Land Acquisition Judge has wrongly given a finding that the nature of land involved in Exhibit 6 and the nature of land involved in this case are similar. The learned Land Acquisition Judge has, therefore, wrongly relied upon Exhibit 6 and made the same basis for fixing market value of the land in the present case. The learned Land -9- Acquisition judge has not scrutinized the evidence, i.e., Exhibit 6. I find that the award given by the Collector in the present case is adequate and further find that there is no evidence available on record that the lands acquired in this case for the purpose of construction of Phulwariya Reservoir scheme were capable of fetching more market value then the compensation awarded by the Collector. I, therefore, find that the compensation awarded by the Collector is just and proper compensation. Therefore, the impugned Judgment and Decree of the learned Land Acquisition Judge are not sustainable in the eye of law. (21) In the result, the First Appeal is allowed and the impugned Judgment and Decree are set aside. It is held that the compensation awarded by the Collector is just and reasonable compensation. In the facts and circumstances of the case, no order as to costs. Patna High Court, Patna Dated 21st September, 2010 N.A.F.R./ Sanjeev (Mungeshwar Sahoo,J.)