FIRST APPEAL No.743 OF 1993 Against the judgment and award dated 24.05.1993 passed by Sri Md. Reyasat Hussain, Subordinate Judge III, Sasaram in Land Acquisition Case No. 7 of 1985/99 of 1989. THE STATE OF BIHAR---------------------------------Opposite Party/Appellant Versus BIBI JAMILA KHATOON & ORS.----------------------- Claimants/Respondents *********** For the Appellant : Mr. Pushkar Narain Shahi, Advocate, A.A.G. XIV Mr. Sanjeet Kumar Singh, Advocate, A.C. to A.A.G. XIV For the Respondents : Mr. Jai Prakash Singh, Advocate Mrs. Arti Singh, Advocate Dated :21st 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 The State of Bihar has filed this First Appeal against the judgment and award dated 24.05.1993 passed by Land Acquisition Judge, Md. Reyasat Hussain, Sub Judge III, Sasaram in Land Acquisition Case No.7 of 1985/99 of 1989. (2) The lands of the claimants-respondents measuring 99½ decimals were acquired in Land Acquisition Case No.26 of 1981-82. The Collector made an award of Rs.42,909.37. The claimants-respondents thereafter filed application under Section 18 of the Land Acquisition Act alleging that the lands which were acquired, were cultivable and fertile lands and at the time of acquisition, the market rate of the land was Rs.5,000 per katha and therefore, the value of the acquired land was about Rs.1,57,000. It is further alleged that the claimants had also houses on Plot No.175, Khata No.1070 and 1073. It is also stated that three crops Mungeshwar Sahoo, J. 2 per year were being cultivated in those lands. The said application under Section 18 of the Land Acquisition Act was referred to the Land Acquisition Judge. (3) The case of the appellant is that the Land Acquisition Officer after considering sale figure fixed the valuation of the land which is correct and is according to the market value. The appellant further alleged that the reference made to the Court was not maintainable as barred by law of limitation and also it is barred under Section 31(ii) of the Land Acquisition Act as the claimants have not received the amount of compensation with protest. (4) After trial, the learned Land Acquisition Judge by the impugned judgment and award fixed the rate of the land acquired at Rs.4,000 per katha. (5) The learned A.A.G. 14 appearing on behalf of the appellant submitted that the learned Court below has not properly appreciated the evidence and mainly based his decision on Exhibit-1 which should not have been relied upon. The learned counsel further submitted that the reference case itself was barred by law of limitation and further, the respondents had not received the compensation paid by the Land Acquisition Officer with objection and therefore, they could not have filed application under Section 18 of the Land Acquisition Act claiming reference. (6) On the other hand, the learned counsel appearing on behalf of the respondents submitted that the award is dated 31.03.1984 and the application under Section 18 of the Land Acquisition act has been filed on 15.06.1984 i.e. within six months and therefore, the application is not time 3 barred. The learned counsel submitted that the claimants were not present before the Land Acquisition Officer when the award was made and therefore, the Land Acquisition Officer has rightly referred the application to the Land Acquisition Judge and moreover, this point was overruled by the Land Acquisition Judge. The learned counsel further submitted that in the application under Section 18 of the Land Acquisition Act at paragraph 7, they have specifically pleaded that they received the compensation under protest. The learned counsel further submitted that the learned Court below has not based his judgment on only Exhibit-1 but has also considered the oral evidences adduced on behalf of the respondents which were in fact, ex-parte and uncontroverted by the appellant. (7) In view of the above contentions of the parties, the points arises for consideration is as to “whether the compensation fixed by the Land Acquisition Judge is proper or exorbitant” and “whether the impugned judgment and award are sustainable in the eye of law?” (8) It may be mentioned here that before the Land Acquisition Judge, the claimants-respondents have examined four witnesses. According to A.W.1, he has seen the lands acquired which are cultivable and three crops are cultivated per year. He has also stated that the claimants have houses on the lands acquired. He has also stated that the nearby lands are sold at Rs.7,000. A.W.3 has also stated that the lands acquired are only at a distance of 3 kilometers from Sasaram town. He has also stated that the lands were sold at Rs.5,000 per katha in the year 1982-1983. He has also stated that 1 acre land is equal to 1 Bigha 12 katha and that the compensation paid by the Land Acquisition Officer is less. In the cross-examination, he has clearly stated that he received the compensation of the Land Acquisition Officer on protest. Suggestion has 4 been given to him that he received the proper compensation which he has denied. A.w.4 has stated that he has purchased land in the same Mauja in the name of his wife at the rate of Rs.4,000 per katha. He has proved the sale deed, Exhibit-1. (9) On the contrary, the State of Bihar, appellant examined only one formal witness who has proved the Khatiyan i.e. Exhibit-A. (10) From the above discussion of the evidences, it appears that learned Court below after consideration of the oral as well as documentary evidences came to the conclusion that the rate of the lands acquired is Rs.4,000 per katha. On the contrary, there is no evidence adduced by the appellant controverting the evidence of the claimants-respondents. So far the submission that the application was time barred is concerned, there is no material on record that at the time of the award, the claimants were present before the Land Acquisition Officer. It appears that this point was not raised before the Land Acquisition Officer also. Had it been raised, the Land Acquisition Officer could not have referred the matter. How the application was time barred has also not been mentioned. Only a submission was made at the time of hearing before the Land Acquisition Judge and also before this Court that the application was time barred. It is well settled principles of law that question of limitation is mixed question of fact and law. Section 18 of the Land Acquisition Act provided different period. There is no fact regarding when the applicant received notice or whether in fact he received it. According to the learned counsel for the respondents, because of the fact that the claimants were not before the Land Acquisition Officer, the period was six months for filing the application and therefore, rightly the Land Acquisition Officer referred the case. I, 5 therefore, find no force in the submission of the learned counsel on this point. (11) So far the next point that the claimants-respondents received the compensation without protest is concerned also, I find no force because in the claim application itself, at paragraph 7 and also the claimant, A.W.3 in cross-examination, specifically stated that they received the compensation with protest. (12) In view of my above discussion, I find that the compensation awarded by the learned Court below is proper and I find no reason to interfere with the reasoning assigned by the learned Court below. There is no reason as to why the evidences produced by the claimants should not be relied upon. (13) In view of above discussion, I find no merit in this First Appeal and therefore, in the result, this First Appeal is dismissed. In the facts and circumstances of the case, there shall be no order as to cost. (Mungeshwar Sahoo, J.) Patna High Court, Patna The 21st January, 2011 Saurabh/N.A.F.R.