FIRST APPEAL No. 633 OF 2000 Against the judgment and award dated 16.8.2000 passed by Sri Diwakar Singh, the Land Acquisition Judge, Bhagalpur in L.A. Reference Case No. 185 of 1992. WITH FIRST APPEAL No. 177 OF 2001 Against the judgment and award dated 29.11.2000 passed by Sri Diwakar Singh, the Land Acquisition Judge, Bhagalpur in L.A. Reference Case No. 93 of 1992. NATIONAL THERMAL POWER CORPORATION ………… Opp. Party/Appellant (In both the appeals) Versus SMT. SHOBHA SINGH & ANR. .……….. Applicant/Respondent (In both the appeals) ******** For the appellant : Mr. Anil Sinha, Advocate (In both the appeals) Mr. Mrityunjay Kumar, Advocate For the respondent No.1 : Mr. Y.B. Giri, Sr. Advocate, (In both the appeals) Mr. Raju Giri, Advocate. For the respondent No. 2 : Mr. G.A. – 2 (In both the appeals) _________________________________________________________ Dated : 4th day of January, 2011 P R E S E N T THE HON'BLE MR. JUSTICE MUNGESHWAR SAHOO J U D G M E N T 1. The National Thermal Power Corporation has challenged the judgment and award dated 16.8.2000 passed by Sri Diwakar Singh, Mungeshwar Sahoo, J. -2- learned Land Acquisition Judge, Bhagalpur in L.A. Reference Case No. 185 of 1992 in First Appeal No. 633 of 2000 and the judgment and award dated 29.11.2000 passed by the same Judge in L.A. Reference Case No. 93 of 1992 in First Appeal No. 177 of 2001. 2. In both the appeals, the parties are same. The land of the respondent No.1 has been acquired by the State of Bihar, respondent No.2 for the purpose of appellant National Thermal Power Corporation by notification dated 3.4.1987 under Section 4 of Land Acquisition Act. The land involved in First Appeal No. 633 of 2000 is 19 decimal, whereas the land involved in First Appeal No. 177 of 2001 is 25 decimal. The judgment and award dated 16.8.2000 challenged in First Appeal No. 633 of 2000 is based on Ext. 1(c) a sale deed. After this judgment and award the other judgment and award dated 29.11.2000, which is under challenged in First Appeal No. 177 of 2001, was passed which is also based on that Ext. 1(c) of First Appeal No. 633 of 2000 which has been marked as Ext. 1(e) in the other case. Further the judgment and award dated 16.8.2000 has been also made the basis for passing the judgment and award under challenge in First Appeal No. 177 of 2001. Therefore, both the appeals were heard together. 3. The Collector awarded compensation of Rs.7094.95 paise for the lands measuring 19 decimal (subject matter of First Appeal No. 633 of 2000) and likewise the Collector Awarded Rs.11,120/- for 25 decimal lands (subject matter of First Appeal No. 177 of 2001). The Collector fixed the market value of the lands acquired @ Rs.242/- per decimal. 4. The claimant filed application under Section 18 of the Land Acquisition Act claiming enhanced compensation @ Rs.1,00,000/- per kattha. She also claimed Rs.60,000/- for standing crops. According to the claimant out of 51 decimal of Khasra No. 1406 only 19 decimal has -3- been acquired. The said land was surrounded by populated villages, railway station, high schools, middle schools, hospital, post office and village market, therefore, the land is valuable and at the time of acquisition the prevalent market value was Rs.1,00,000/- per kattha. The said application was referred to the Land Acquisition Judge. 5. The claimant as well as the appellant adduced their respective evidences in support of their cases. The claimant examined three witnesses and produced Ext. 1 series which are sale deeds. The witnesses examined have stated that the lands acquired are surrounded by railway station, high schools, middle schools, hospital etc. and are valuable lands. The rate on the date of acquisition was Rs.1,00,000/- per kattha. 6. From perusal of the exhibits it appears that Ext. 1 the sale is dated 14.3.1980, Ext.-1/A is dated 15.11.1985, Ext.-1/C is the sale deed dated 27.2.1987. The notification was issued for acquisition of the lands on 3.4.1987. On these grounds, the learned court below relied upon this Ext.-1/C. The learned court below discarded the other sale deeds which have been marked Ext.-1, 1/A, 1/B, 1/D. In this sale deed i.e. Ext. 1/C, 1-1/4 decimal of lands was sold for Rs.7,500/-. The learned court below relying upon this sale deed found that the value of 1 decimal will be Rs. 6000/- and accordingly, fixed the market value of the land on the basis of this Ext. 1/C @ Rs.6000/- per decimal. 7. The learned counsel Mr. Anil Sinha appearing on behalf of the appellant submitted that the learned court below has not at all considered the witnesses examined on behalf of the appellant. The learned counsel further submitted that O.P.W.-2 has clearly stated that there were no crops, no houses or well on the road nearby the lands acquired. There was no petrol pump also. The witnesses further stated that the project for acquisition of land was announced in the year 1984 -4- and construction of thermal power station started in 1985. The learned counsel further submitted that because of this announcement the sale deed Ext.-1/C was created for the purpose of enhancing the market value only but in spite of the evidence adduced by the appellant the learned court below considered the evidences and moreover the sale deed was only for a small piece of land whereas the lands acquired is 19 decimal and 25 decimal. In such circumstances, the sale deed could not have been made the basis for fixing the market value of the land. The learned counsel further submitted that proper and reasonable compensation was awarded to the claimant by the Collector which has been raised exorbitantly by the Land Acquisition Judge relying upon only on Ext.-1/C. 8. On the other hand, learned counsel appearing on behalf of the respondents submitted that the witnesses including the claimant have stated that the railway station is near to the lands acquired and there are houses and schools and also petrol pump. Therefore, in fact the value of the lands acquired was much more than the rate fixed by the Collector. According to the learned counsel the learned court below has rightly relied upon the sale deed Ext.-1/C which is dated 27.2.1987 just one month prior to the notification under Section 4 of the Land Acquisition Act and, therefore, the impugned judgment and award could not be interfered with. 9. In view of the above submission of the parties, the points arises for consideration is :- Whether the compensation awarded by the Land Acquisition Officer is correct, reasonable and adequate compensation? or Whether the compensation enhanced by the Land Acquisition Judge by the impugned judgment and award is correct, proper and adequate and, therefore, sustainable in the eye of law? -5- 10. As discussed above, the witnesses examined on behalf of the claimants have stated that the market value of the land on the date of acquisition was about Rs.1,00,000/- per kattha and the lands are surrounded by petrol pump and situated by the side of the road. On the contrary O.P.W.-2 has stated that proper market value has been paid by the Collector. There was no petrol pump near the lands acquired nor the houses were there nor railway station was near to the lands acquired. However, from the perusal of the impugned judgment and award it appears that the learned court below has discarded the other sale deeds filed by the claimants and relied upon only Ext.-1/C. Now therefore, the question is whether this sale deed Ext.- 1/C could have been made the basis for determining the market value of the lands acquired. It is reiterated here that notification under section 4 of the L.A. Act was published on 3.4.1987 and this sale deed is dated 27.2.1987 i.e. just one month prior to the acquisition and only 1-1/4 decimal land was sold for Rs.7500/-. 11. In the case of State of U.P. and others Vs. Ram Kumari Devi (Smt.) 1996 (8) SCC 577 the Hon’ble Supreme Court at paragraph 4 has held 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 compensation. Burden is on the owner to prove the prevailing market value. On adduction of evidence by the parties, the acid test which the -6- 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.” 12. In the present case also the lands acquired was 19 decimal + 25 decimal = 44 decimal and the sale deed was for only 1-1/4 decimal. In view of the above decision in the case of State of U.P. (supra) it appears that in the present case also after acquisition proposal was made on becoming aware of the acquisition the sale deed Ext.-1/C has been brought into existence only to inflate the market value. 13. In the case of P. Venkataraju vs. Special Tehsildar (Land Acquisition) 1996 (8) SCC 614, the Hon’ble Supreme court at paragraph 3 has held as follows : “The only question is whether the appellant is entitled to compensation @ Rs.22,000 per acre. It -7- is seen that when the Project was inaugurated on 28-81976, all these documents obviously had been brought up for inflating the market value. Unfortunately, all these facts were not brought to the notice of the learned Single Judge when he confirmed the compensation of the land at the rate of Rs. 22,000 per acre. It is settle law that it is the duty of the court to consider the evidence in proper perspective and to determine the compensation. In each case, the court sitting in the armchair of a hypothetical willing purchaser would as a prudent person offer the market value when the owner offered the land for sale. Once the project was inaugurated and the lands were acquired, no prudent person would come forward and purchase the same at higher rates. It may be depressed sales in case of acute necessity and urgency of the seller for money. Under these circumstances, we hold that the sale deeds were brought-up sales and the enhancement was not justified. We do not propose to interfere with the matter and cannot also enhance the market value.” 14. In the case of State of J & K vs. Mohd. Matinvari AIR 1998 SC 2470 the Hon’ble Supreme Court has held that report of local Tehsildar regarding market value of land submitted in discharge of his duty and after inspection and thorough inquiry can be made basis for determining the market value. In the present case, the appellant has adduced evidence and the report of the Amin was also produced but the learned court below has not considered the same. 15. The learned counsel for the respondents relied upon a decision reported in AIR 1997 SC 2625 Special Deputy Collector and another etc. vs. Kurra Sambasiva Rao and others etc. and submitted that the sale transaction in respect of acquired lands to which the claimant himself as a party is the best evidence. The learned counsel submitted that sale deeds of comparable land has been proved by the claimants by examining the vendor of Ext.-1/C and, therefore, -8- it is best evidence and the learned court below has rightly relied upon the same. In the said decision also the Hon’ble Supreme Court at paragraph 7 has held as follows : “Whether fair and reasonable and adequate market value is always a question of fact depends on the evidence adduced, circumstantial evidence, and probabilities arising in each case. The guiding star or the acid test would be whether a hypothetical willing vendor would offer the lands and a willing purchaser in normal human conduct would be willing to buy as a prudent man in normal market conditions prevailing in the open market in the locality in which the acquired lands are situated as on the date of the notification under Section 4 (1) of the Act; but not an anxious buyer dealing at arm’s length with throw away price, nor façade of sale or fictitious sales brought about in quick succession or otherwise to inflate the market value. The judge should sit in the arm chair of the said willing buyer and seek an answer to the question whether in the given set of circumstances as a prudent buyer he would offer the same market value which the court proposed to fix for the acquired lands in the available market conditions. The court is, therefore, enjoined with the bounden duty of public function and judicial dispensation in determination of the market value of the acquired land and compulsory acquisition.” 16. Therefore, from this decision also it is clear that the acid test would be whether a hypothetical willing vendor would offer the lands and a willing purchaser in normal human conduct would be willing to buy as a prudent man in normal market conditions prevailing in the open market in the locality but not an anxious buyer dealing at arm’s length with throw away price. In my opinion, therefore, this decision also helps the appellant and moreover, there is no dispute about this well settled principle of law laid down by the Hon’ble Supreme Court. -9- Here the question is whether Ext. 1-C could have been relied upon which appears to be brought into existence after declaration of the scheme. If this evidence Ext.-1/C is discarded then there are oral evidences versus oral evidences adduced by both the parties. On the basis of this oral evidence i.e. mere statement of the witnesses market value cannot be and should not be fixed discarding the sale chart and the evidences adduced on behalf of the State of Bihar after inspecting lands acquired and fixing the market value of the land. 17. 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 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. 18. In view of my above discussion, I find that the learned court below has wrongly relied upon Ext.-1/C and made it basis for decision in determining the market value of the lands acquired. I also find that the claimant has failed to discharge the burden of proof that the compensation awarded by the Collector is inadequate. 19. It may be mentioned here that this Ext.-1/C has been marked as Ext.-1/E by the claimants in the First Appeal No. 177 of -10- 2001. As stated above the landowner is same and notification for acquisition of land is same date. The judgment and award which is under challenge in First Appeal No. 633 of 2000 is made basis for the judgment and award which is under challenge in First Appeal No. 177 of 2001. 20. In view of the above facts and circumstances of the case, since the claimant failed to prove that compensation awarded by the Land Acquisition Officer is inadequate and also that the learned court below based the sale deed Ext.-1/C which appears to have been created for the purpose of inflation of rate, in my opinion, both the impugned judgment and award are liable to be set aside. Accordingly, I find that the compensation awarded by the Collector is just, proper and adequate. 21. In the result, both the first appeals are allowed and the impugned judgment and award in both the first appeals are set aside. 22. In the facts and circumstances of the case, the parties shall bear their own costs. (Mungeshwar Sahoo, J.) Patna High Court, Patna The 4th December, 2011 S.S./N.A.F.R.