FIRST APPEAL No. 635 OF 1995 Against the judgment and award dated 31.05.1995 passed by Sri Rahbar Husain, 2nd Subordinate Judge, Arrah in Land Acquisition Case No. 34 of 1992. SMT. SATYAWATI DEVI ………. Applicant-Appellant Versus BIHAR STATE AGRICULTURE MARKETING BOARD ……… Opposite Party-Respondent ******** For the Appellant : Mr. Dhrub Narayan, Sr. Advocate Mr. R.P.Birnaway, Advocate For the Respondent : None Dated : 2nd day of February, 2011 P R E S E N T THE HON'BLE MR. JUSTICE MUNGESHWAR SAHOO J U D G M E N T The claimant has filed this First Appeal against the judgment and award dated 31.05.1995 passed by Sri Rahbar Husain, the learned 2nd Subordinate Judge, Arrah in Land Acquisition Case No.34 of 1992 whereby the learned Land Acquisition Judge has only enhanced the compensation in part. (2) It appears that 4.52 acres land under Khata No.1954, Khesra No.63, 12890 and 905 of Village Danwan belonging to the appellant was acquired for the purpose of Bihar State Agriculture Marketing Board. Notification under Section 4 of Land Acquisition Act was published in 1986. The Collector awarded compensation of Mungeshwar Sahoo, J. 2 Rs.3,06,441.25 to the claimant-appellant. Being dissatisfied with the said compensation, the claimant filed an application under Section 18 of the Land Acquisition Act claiming enhancement of compensation at the rate of Rs.50,000 per katha for the land, Rs.40,000 for two Wells, Rs.50,000 for the house, Rs.30,000 for Boring and Rs.10,000 for the trees. (3) The claimants alleged that in a portion of the land acquired, there exist trees of Mango, Guava, Peeple and Ashok. There is a Well in plot no.905 and a Boring. There existed a pucca house. The acquired land situates just by the side of Behia-Jagdishpur pitch road. Though, the nature of the land is bhith in Khatiyan but there are several residential buildings, important offices and market are there. Plot no.905 is just in the border of two Maujas, Danwan and Behia. The lands of close vicinity at the time of acquisition i.e. notification under Section 4 were sold at a very high price. The compensation fixed by the Land Acquisition Officer at the rate of Rs.37,500 per acre is very low. The contiguous plots were being sold for Rs.10,000 per katha i.e. Rs.3,20,000 per acre prior to notification. Even part of plot no.905 has been sold at the rate of Rs.30,000 per katha i.e. Rs.9,60,000 per acre but the Land Acquisition Officer did not take into account the sale deeds. The Land Acquisition Officer also awarded very low amount for the house and the trees and Boring as well as Well. (4) The aforesaid application under Section 18 of the Land Acquisition Act filed by the appellant was referred to the Land Acquisition Judge. The State of Bihar filed objection stating that Village Danwan is a rural area and far from Basti and the market rate of lands 3 in the vicinity are not more than Rs.30,000 per acre but the award indicates that maximum price for the land has been awarded. The award is quite proper and adequate. The notice under Section 4 was published in December 1986. The lands in question are third class land for cultivation. Considering all these aspects of the matter, the valuation has been fixed properly. (5) Both the parties adduced oral as well as documentary evidences. After trial, the learned Court below fixed the compensation at Rs.40,000 per acre. (6) The learned senior counsel appearing on behalf of the appellant submitted that although, the learned Court below relied upon the sale deeds filed on behalf of the appellant i.e. Exhibit-1/a and held that on the basis of this sale deed, compensation should be determined but then, while determining compensation instead of Rs.40,000 per katha, the learned Court below has mentioned Rs.40,000 per acre which is a mistake. According to the learned counsel, all the sale deeds produced by the appellant coupled with the oral evidences clearly indicate that the value of the land should be Rs.40,000 per katha and not Rs.40,000 per acre. The learned counsel submitted that in Exhibit- 1/a, 1 katha land has been sold for Rs.47,000 and this land is part of plot no.905 and therefore, this is the best evidence for determining the market rate of the lands acquired because plot no.905 has also been acquired by the respondent. The learned counsel further submitted that the claimant herself has sold part of plot no.905 through Exhibit-1 and 1/a and the learned Court below placed reliance on those sale deeds but abruptly, fixed the market value of the land at Rs.40,000 per acre. The 4 learned counsel further submitted that the respondent has not produced reliable evidences. On these grounds, the learned counsel for the appellant submitted that the impugned judgment and award are liable to be set aside and the compensation claimed by the appellant is to be allowed fixing at least Rs.40,000 per katha. (7) In this case, at the time of hearing, nobody appears on behalf of the respondent. (8) In view of the above facts and circumstances of the case, the points arise for consideration is as to “whether the compensation awarded by the Land Acquisition Judge is adequate or not” and “whether the appellant is entitled for the compensation as claimed by her” and “whether the impugned judgment and award are sustainable in the eye of law?” (9) In this case, the respondent has also examined five witnesses and produced three sale deeds which have been marked as Exhibit D, D/1 and D/2. The respondent has also produced valuation of Khatiyan which has been marked as Exhibit-B/3. The map of village has been proved as Exhibit-C and plan for construction of market yard has been marked as Exhibit-C/1. The valuation report has been marked as Exhibit-E and valuation report of building is Exhibit-F. From perusal of the impugned judgment, it appears that the learned Court below while considering these documentary evidences, discarded the sale deeds and other Exhibits by saying that these sale deeds are of the land of village Danwan and it is a surprising fact that the order sheet dated 01.02.1994 speaks that documents along with the list were filed on behalf of the O.P. and the sale deeds were marked as Exhibit-D series but those 5 documents were not brought on record legally as none of the O.P.Ws. have proved the sale deeds and they were marked Exhibit by the then Court and therefore, these three sale deeds cannot be legally taken into evidence and cannot be considered for deciding the valuation matter. In this way, the learned Court below has discarded all the documentary evidences. In my opinion, the learned Court below has wrongly discarded these documentary evidences without considering Section 51(A) of the Land Acquisition Act. Had he considered the provision as contained in Section 51(A) of the L.A. Act, he would not have discarded the documentary evidences. (10) In 2001, Volume 2, P.L.J.R. Page 33, Supreme Court(Land Acquisition Officer and Mandal Revenue Officer vs. V. Narasaiah), Hon’ble Supreme Court has held that this Section 51(A) was brought on Statute so that certified copy of a registered document may be accepted as evidence because for the State officials, it was a burden to trace out the persons connected with such transaction. Therefore, the learned Court below in the present case, at our hand, wrongly discarded the said sale deeds. After considering the reliability of the said sale deeds, the Court may rely on it or not is a different matter but here the Court refused to consider the sale deeds on untenable ground. Now, therefore, let us consider the evidences of both the parties. (11) The appellant has examined as many as 14 witnesses. A.P.W. 1 has stated that the value of the land acquired is between Rs.40,000-50,000 per katha. It appears that the learned Court below has not relied upon his evidence. A.P.W.2 is purchaser of land of 1 ½ 6 katha for Rs.45,000. He has stated that village Danwan and Behia are adjacent to each other and there are petrol pump at a distance of 100 yard from his land and there are houses also towards south of the land. A.P.W.3 is formal witness. A.P.W.4 deposed regarding existence of house and petrol pump around the lands acquired. Such is the evidence of A.P.W.5. A.P.W.6 says that he has sold his land of village Behia at the rate of Rs.1,15,000 per katha. A.P.W.7 has also stated that he intended to purchase land but the value of the land was Rs. 1 lakh per katha. A.P.W.8 is the son of applicant. A.P.W.9 has stated that he has purchased 10 dhurs of land out of lands acquired for Rs.26,000. A.P.W.10 is on the question of cost of Boring. A.P.W.11 has proved sale deed, Exhibit-1/b. A.P.W. 12 is on the cost of Well. A.P.W.13 is Boring Mechanic and has stated about the cost of Boring to the extent of Rs.25,000-30,000. A.P.W.14 has proved two sale deeds, Exhibit -1/c and 1/d. (12) So far the sale deeds produced on behalf of the appellant are concerned, Exhibit-1 is the sale deed executed by the appellant herself in relation to 1 katha 10 dhurs of plot no.905 for Rs.45,000 and the date of this deed is 30.06.1986. Exhibit-1/a is the sale deed dated 08.06.1988 again executed by applicant for 1 katha land of plot no.905 for Rs.47,000. The learned counsel for the appellant submitted that the said plot no.905 has been acquired and therefore, these sale deeds are the best evidence for determination of the market value and the learned Court below also in the last paragraph has held that Exhibit-1/a can be relied upon for determining the value of the land. 7 (13) The other sale deeds, Exhibit-1/b is dated 29.05.1982 relating to plot no. 845 measuring 259 ¼ feet for Rs.20,000. Exhibit- 1/c is dated 07.02.1986 for 2 katha land of plot no.904 for Rs.20,000. Exhibit-1/d is sale deed dated 05.02.1986 for 2 katha land of plot no.904 for Rs.20,000. Exhibit-1/c is sale deed dated 08.05.1996 with respect to 3 ½ dhurs only of village Behia Judge Bazar, plot no.845 for Rs.20,000. Exhibit-1/f is another sale deed dated 12.05.1986 regarding 3 ½ dhurs of Judge Bazar, Behia, plot no.845. So far these sale deeds are concerned, much emphasis has been given by the learned counsel for the appellant and submitted that in no case, the valuation will be Rs.40,000 per acre. (14) From the above sale deeds, it appears that the sale deed, Exhibit-1/a executed by the appellant herself is dated 08.06.1988 and it is only for 1 katha land which was sold for Rs.47,000. As stated above in the objection, the State of Bihar has clearly stated that notification under Section 4 of the L.A. Act was issued in December, 1986 and from perusal of the evidence, it appears that O.P.W.1 clearly stated in his evidence that the declaration for acquisition of this land was made in the year 1986. The learned Court below discarded the evidence of this witness on the ground that this witness does know anything because from the reference, it will be clear that the declaration is dated 30.04.1988. It may be mentioned here that at the time of hearing, the learned counsel for the appellant did not dispute the fact that the notification under Section 4 of the L.A. Act was issued on 15.12.1986. In fact, a copy of the notification was also produced for perusal. Therefore, the market value of the land is to be determined on the date of notification under Section 4 of the L.A. Act. In such view of the 8 matter, the sale deed, Exhibit-1/a which is of the year 1988 cannot be relied upon. So far the other sale deeds are concerned, no doubt those are of the year 1986 but all those sale deeds relate to very small area. So far Exhibit-1 is concerned, in the said sale deed, 1 katha 10 dhurs land is involved which was sold for Rs.45,000. So far the other sale deeds are concerned, 2 katha land have been sold for Rs.20,000 only. Therefore, these sale deeds do not produce clear picture about the market value. It appears that the sale deeds, Exhibit 1 and 1/a have been brought into existence to inflate the market value because it is common knowledge that acquisition proposals are made at an early point of time. Finalisation of acquisition takes a long time and then notification is issued. On becoming aware of the acquisition, generally these types of sale deeds are brought into existence. Moreover, these sale deeds relate to very small area i.e. 1 katha or 2 katha. In my opinion, therefore, these sale deeds cannot be made the basis for determining the market value of the land of large track i.e. 4.52 acres. (15) 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 prices of land of an extent of 60’x20’, 40’x40’ 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 finalization 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 9 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.” (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 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. 10 (17) In the present case, as stated above, the State of Bihar has also produced sale deeds, Exhibit- D series which have been discarded on the ground that they are not admissible in evidence vide paragraphs 21 and 23 of the impugned judgment. I have held above that the learned Court below has failed to consider Section 51(A) of the Land Acquisition Act and the decision of the Hon’ble Supreme Court on this point. I, therefore, proceed to consider these sale deeds. Exhibit-D is the sale deed dated 8.9.1986 for 16 decimals and the consideration amount is Rs.6,000. Exhibit-D/1 is sale deed dated 26.9.1986 for 11 ½ decimals and the consideration amount is Rs.4500. Exhibit-D/2 is certified copy of sale deed dated 19.09.1986 for 2 katha land and the consideration amount is only Rs.2,000. The lands involved in all these sale deeds are of same village in which the lands under acquisition situate. The O.P.W.1 has clearly stated in the evidence that these documents and the valuation chart have been considered by the Land Acquisition Officer while determining the market value. The valuation chart, the map, the plan etc. have been produced by the State of Bihar and has marked Exhibit but the learned Court below discarded all these documents. The sale chart is prepared on the basis of the register of the Registry Office and therefore, those documents cannot be lightly thrown out. Reasons have to be assigned for not relying on those documents. The State of Bihar not only produced the sale chart but also produced the certified copy of the sale deeds on the basis of which the market value was determined. The O.P.W.2 is Amin who has given the report after verification of the situation of the land. The O.P.W.3 has clearly stated that the lands acquired is inferior in quality than the lands involved in three sale deeds produced by the State of Bihar and O.P.W.4 is the Executive Magistrate who has assessed the value of the land. 11 (18) In view of the above discussion, it appears that it is not the case that the evidence of the claimant-appellant is uncontroverted. The respondent in this case has also hotly contested and produced not only oral evidences but also documentary evidences. The witnesses examined on behalf of the State of Bihar have stated that the petrol pump is at a distance of 1 ½ kilometers from the lands acquired. From perusal of the sale deeds produced by the respondent, it appears that in those sale deeds bigger areas of land are involved than the area involved in the sale deeds of the appellants. Moreover, in Exhibit-1 and 1/a much higher consideration amount has been shown than the other sale deeds produced by the appellant herself. As stated above, Exhibit -1/a is of the year 1988 i.e. after two years of the notification under Section 4 of the L.A. Act. So far Exhibit-1 is concerned, it is not in consonance of the other sale deeds and creates grave doubt. When in other sale deeds, 2 katha land has been sold for Rs.20,000 only, why in the same year in Exhibit-1, 1 katha 10 dhurs land has been sold for Rs.45,000. There is no explanation and therefore, the decision of the Hon’ble Supreme court quoted above clearly applies in this fact and circumstance. (19) The appellants have claimed that a portion of lands acquired there were fruits bearing trees i.e. Mango, Guava and other trees such as Peeple, Ashok etc. which clearly indicates that the land was bhith land i.e. third class land and not fertile. The respondent clearly stated this fact in the objection and in the evidence also. The appellants have not clarified as to on how much area, these trees were standing. (20) The learned Court below, no doubt, has held that Exhibit-1/a is to be relied upon but while fixing the rate, he has fixed 12 Rs.40,000 per acre. The learned counsel for the appellant on the basis of this observation of the learned Court below submitted that if Exhibit-1/a is relied upon, then the learned Court below should have fixed Rs.40,000 per katha and not Rs.40,000 per acre. As stated above, this Exhibit-1/a is of the year 1988 and that cannot be made the basis for determining the market value. (21) Considering the above facts and circumstances of the case, I find that the prevalent market rate fixed by the Land Acquisition Judge is adequate, proper and just. I find no reason to interfere with the impugned judgment and therefore, the finding of the learned Court below determining the value at Rs.40,000 per acre is correct and calls for no interference. Accordingly, the finding of the learned Court below is hereby confirmed. (22) In the result, I find no merit in this First Appeal and accordingly, this First Appeal is dismissed. In the facts and circumstances of the case, the parties shall bear their own cost. (Mungeshwar Sahoo, J.) Patna High Court, Patna The 2nd February, 2011 Saurabh/A.F.R.