FIRST APPEAL No. 145 OF 1993 Against the judgment and award dated 18.2.1993 passed by Sri Y.P. Bhagat, Sub Judge II, Arrah in Land Acquisition Case No. 4 of 1987. Rajendra Prasad and others ………… Claimants/Appellants Versus The State of Bihar ……….. Opp. Party/Respondent ******** For the Appellants : Mr. R.K.P. Singh, Advocate For the Respondents : Mr. Anil Kumar Jha, Senior Advocate, G.A. - 2 Dated : 1st day of October, 2010 P R E S E N T THE HON'BLE MR. JUSTICE MUNGESHWAR SAHOO J U D G M E N T 1. The original claimant was Keshri Prasad who had filed this appeal against the judgment and award dated 18.2.1993 passed by Sri Y.P. Bhagat, Sub Judge – II, Arrah in Land Acquisition Case No. 4 of 1987. During the pendency of this appeal he died and his legal representatives have been substituted in his place, who are appellants. 2. It appears that 1.86 acres of lands of the claimants- appellants comprising within plot Nos. 363, 364 and 447 within Khata Nos. 42, 43 and 39 were acquired by the State of Bihar for the purposes of constructing Bandh to prevent flood. The said lands were acquired in Land Acquisition Case 5/5 of 1983-84 and notification under Section 4 was notified in Gazette on 30.9.1983. Award No. 7 was prepared in the name of Keshri Prasad for Rs. 13,368.75 paise including the soletium and interest. The claimants-appellants filed Mungeshwar Sahoo, J. -2- application under Section 18 of the Land Acquisition Act praying for enhancement of the compensation on the ground that the market value of the land acquired was Rs. 40,000/- per acre on the date of acquisition. The said application was referred by the Collector to the civil court. 3. Both the parties adduced oral as well as documentary evidences regarding the market value of the land acquired. After considering the evidences available on record the learned Land Acquisition Judge found that the village is flooded area and that the land itself was acquired for protection from flood by constructing a Bandh and further that the claim of valuation made by the plaintiff is not sustainable and accordingly, dismissed the claim of the appellants. 4. The learned counsel Mr. R.K.P. Singh appearing on behalf of the appellants submitted that the learned court below has wrongly not based the three sale deeds produced by the appellants while determining the market value of the lands acquired. The learned counsel further submitted that the lands involved in the three sale deeds are of the same village and were in the vicinity of the lands of the claimants and, therefore, these evidences were important for determining the market value of the land acquired. The learned counsel further submitted that no contrary evidence was adduced by the State of Bihar to show that the nature of land acquired defers from the nature of land involved in the three sales deeds Ext. 1, 1-A and 1- B and, therefore, the court below should have relied upon the above sales deeds and should have determined the marked value of the land acquired on the basis of the said sale deeds. The learned counsel further submitted that it was not considered that by the acquisition of the land the appellants was compelled to change his profession of cultivation because most of the lands were acquired. The learned -3- counsel further submitted that the learned court below has also not considered that because of severance of the acquired land from the other lands of the appellants the value of the remaining lands diminished. On these grounds the learned counsel submitted that the impugned judgment and award are liable to be set aside and at least the average value of three sale deeds should be determined as rate for market value of the lands acquired. According to the learned counsel the average valuation of the land of three sale deeds will be Rs. 33,333/- per acres. The learned counsel further submitted that the purchasers of the lands in those sale deeds have been examined as PW 2, PW 3 and PW 4 by the appellants and according to PW 1 the lands involved in the sale deed are only 40-50 yard from the acquired land. 5. On the other hand, learned G.A.-2 submitted that the original claimant-appellant himself in his cross-examination admitted that when flood comes no crops are grown in the said land and admitted that the lands were acquired for the purpose of construction of Bandh for preventing flood. The learned G.A. – 2 further submitted that considering the nature of the land involved which was acquired, the land acquisition officer has rightly fixed the compensation which was upheld by the land Acquisition Judge therefore, it should not be interfered with by this Court. 6. In view of the above contentions of the parties the points arises for consideration in this appeal are :- Point No. 1. Whether the compensation awarded by the Collector for the lands acquired is reasonable and proper or whether the appellants are entitled for compensation at the rate of Rs.33,333/- per acre on the basis of three sale deeds ? -4- Point No. 2. Whether the impugned judgment and award passed by the learned L.A. Judge is sustainable in the eye of law ? 7. Admittedly, the land measuring 1.86 acres of the original claimant was acquired by the State of Bihar for construction of Bandh in the year 1983-84. The notification under Section 4 of the L.A. Act was published on 30.9.1983. PW 1 is the claimant Keshri Prasad Singh himself. He has stated that in the year 1981 his land was acquired for construction of Ganga Tatbandh. At that time the value of the land was 40,000/- per acre and on the lands three crops were grown per year. He has stated that in the nearby Rajnath Singh had purchased land @ 40,000/- per acre, Abdul Haq purchased land @ 32,000/- per acre, and those lands are 40-50 yard away in the south from the land acquired. In the cross-examination he has admitted that flood comes on his land and when flood comes nothing is cultivated. Although he has stated that three crops were grown on the lands acquired but he has not whispered a word about the yearly income or yield of crops from the said land. In the cross-examination he has stated that the irrigation on the lands depends upon the river or rain or own boaring. There is no specific evidence that there was facility of boaring irrigation on the land. PW 2 in his cross-examination at paragraph 1 clearly admitted that on the lands acquired flood comes. In paragraph 4 this witness again stated that by the side of the land acquired in the north land of the claimants himself is there and in the south there is Nala and Ditch. In the east claimants’ land is there. Likewise PW 4 also admitted that after 4, 5 bigha of the acquired land river is there and near the acquired land a Nala is there. 8. DW 1 has stated that the village Luxmanpur is flooded area. In the cross-examination he has stated that always flood comes in the village. As stated PW 2, 3 and 4 are purchaser of the lands in Ext.1, 1- -5- A and 1-B. They have stated the rate at which they purchased the land. Ext.1 is the sale deed dated 29.12.1981 in which land involved is three kattha only. PW 2 purchased the said three kattha land for Rs.3000/-. Likewise PW 3 purchased 12 decimal of land for Rs. 5000/- on 30.9.1980 by Ext. 1/A sale deed, likewise PW 4 purchased 19 decimal for Rs. 5000/- on 2.3.1978 through Ext. 1-B. The learned counsel for the appellant submitted that the learned court below should have considered the valuation of these three sale deeds and on the ground that only small area are involved in these sale deeds same could not have been discarded. Learned counsel relied upon a decision reported in 2004 (2) PLJR 1 SC Panna Lal Ghosh and others Vs. Land Acquisition Collector and others and submitted that the sale deeds were relevant instances for determination of the market value of the lands acquired. From perusal of the paragraphs 6 and 7 of the above decision it appears that in that case judgment of L.A. Judge in another acquisition proceeding was produced and the lands of that proceeding were only 150 ft. away from the land acquired. The L.A. Judge had awarded Rs.1,00,000/- per acre as compensation. The High Court did not rely upon that judgment on the ground that there was no evidence to show that both the lands are similar in nature having similar potentiality. In the present case also claimants-appellants has stated that the lands involved in these three sale deeds are 40-50 yards away from the land acquired i.e. about 150 ft. The witnesses have stated that by the side of the land acquired Nala and Ditch is there and in one side river is there. The witnesses including the claimant as discussed above have stated always flood comes over the acquired land. There is no such evidence regarding the nature of lands involved in three sale deeds. There is no evidence that the lands are also affected by flood and always flood comes over those lands. Therefore, only because the lands are agricultural, it cannot be said -6- that the nature is same. There is no evidence that those lands also situated by the side of the river or nala or ditch. 9. In a decision reported in 2007 (Supp.) PLJR 283 Jagdish Singh and another Vs. State of Bihar and others the division bench of this court has held at paragraph 6 as follows : “6. The learned counsel for the appellants took us through the evidence as was tendered by the appellants before the Special Land Acquisition Judge wherefrom we have not been able to gather a single piece of material on which a prudent person can even assume that a bona fide dispute as to the situation of the land had been raised. No reliance was placed on the revenue records. If the appellants had paid revenue in respect of the lands in question, the receipts suggesting such payments had not been brought on record before the learned Special Land Acquisition Judge. No attempt was made to tender a certified copy of Register II to show that the revenue had been fixed in respect of lands in question upon considering the nature of the land. At the same time no efforts was made to bring on record the revisional survey records suggesting the situation of the land. On the other hand the specific evidence of the Land Acquisition Officer was that while he measured the lands in question, he found the same as submerged in the river water.” 10. It appears that in that case the lands of the claimant were found sub-merged in river water while it was measured. It appears that in that case the lands were acquired in 1979 and the rate of the lands acquired were fixed at Rs.100 per acre in respect of some lands which were river-bed, Rs. 7173/- per acre in respect of the land by the side of the river and Rs. 2391/- per acre in respect of the Parti lands. The lands in that case was found to be of river-bed and the Collector fixed the rate @ 100/-. The L.A. Judge confirmed the same. The high Court also refused to interfere and in L.P,A. also no interference was -7- made. In the present case at our hand also the applicant has not brought on record either register II, survey record of right suggesting situation of the land and nature of the land. Map was also not produced. Only oral evidence has been adduced but as stated above the witnesses have admitted that the land is flooded land and every year flood comes. 11. From perusal of the three sale deeds it appears that in Ext.1 the land involved is only 3 kattha, in Ext.1-A the land involved is 12 decimal and in Ext.1-B the land involved is 19 decimal whereas the lands acquired is 1.86 acres. As stated above there is no evidence that the lands involved in these sale deeds are of same potentialities as that of the land acquired. On the contrary the evidence is to the effect that the lands acquired are flooded lands surrounded by Ditch and nala and river. It is common knowledge that acquisition proposal is made on an earlier point of time and finalization of acquisition take a long time. In the process, on becoming aware of the acquisition, obviously, sale deeds are brought into existence to inflate the market value. 12. In the case of State of U.P. and others Vs. Ram Kumari Devi (Smt.) and others 1996 (8) SCC 577 the Hon’ble Supreme court has held at paragraph 4 as follows : “4. It is seen that small pieces of land of an extent of 60’ x 20’, 40’ x 40’ and 1600 sq. ft. were sold by the claimants, obviously on coming to know of the proposed acquisition. It is common knowledge that acquisition proposal would be made at an earlier point of time and finalisation of acquisition would take a long time. In the process, on becoming aware of the acquisition, obviously, these sale deeds have been brought into existence to inflate the market value. It is laid down by this Court which is a well-settled principle that it is the duty of the court to assess reasonable -8- 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. No feats of imagination would require to bog the mind that when 13.75 acres of land was offered for sale in an open market, no prudent man would have credulity to purchase that land on square foot basis. The High Court as well as the District Judge have committed a grave error in not applying the above acid test while considering the case. They merely proceeded by accepting the sale deeds which were obviously brought into existence to inflate the market value and determined the compensation on the price settled by them. Thus, we hold that both the courts have applied a wrong principle of law in determining the compensation.” 13. 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 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 -9- 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 the State of Bihar had adduced evidenced and DW 1 has specifically stated that it is a flooded area and moreover the lands have been acquired for the purposes of constructing a Bandh on the river for preventing flood. 14. As stated above the lands involved in the sale deeds are of small area and there is no evidence that the nature and potentiality of those lands are similar to that of the land acquired. In such circumstances no feats of imagination would require to bog the mind that when 1.86 acres of land is offered for sale in an open market, no prudent man would have credulity to purchase that land on decimal basis particularly, when the acquired land is surrounded by ditch and nala and one side river is there. 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. -10- 16. As discussed above it was the burden of 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. In the present case, no such reliable evidence has been produced. The claimant based his claimed only on the basis of Ext.1 series. As discussed above on the basis of Ext.1 series market value cannot be determined particularly, when there is no reliable evidence showing the nature and potentiality to be same, I therefore, find that the learned Land Acquisition Judge has rightly not interfered with the compensation fixed by the land acquisition officer. Accordingly, I find that the compensation awarded by the Collector is adequate and reasonable. The finding of the court below on this point is hereby confirmed. 17. The learned counsel for the appellant submitted that the learned court below has gone into the question that the application under Section 18 was barred by law of limitation. So for this question is concerned, since I have already decided the main question, it is not necessary to go into detail on this point. 18. In view of my above discussion, I find that the compensation awarded to the claimants is just, proper and adequate. The Land Acquisition Judge has rightly therefore, not interfered with the said compensation. In such circumstances, the impugned judgment and award needs no interference. 19. In the result, I find no merit in this appeal and accordingly, this appeal is dismissed. (Mungeshwar Sahoo, J.) Patna High Court, Patna The 1st October, 2010 S.S./N.A.F.R.