FIRST APPEAL No. 542 OF 1996 Against the judgment and award dated 04.09.1996 passed by the learned 1st Sub Judge, Supaul in Land Acquisition Case No. 1 of 1994. ********* STATE OF BIHAR---------------Opp. Party-Appellant Versus BHUNESHWAR PRASAD SINGH -------------Claimants-Respondents For the Appellant – Mr. Anil Kumar Jha, Sr. Advocate (G.A.2) Mr. G.N.Ojha(A.C. to G.A. 2) For the Respondent – Mr. Chandra Bhushan Das, Advocate Dated : 1st day of September, 2010 P R E S E N T HON'BLE MR. JUSTICE MUNGESHWAR SAHOO ------------ J U D G M E N T Mungeshwar Sahoo, J. (1) The State of Bihar has filed this First Appeal against the judgment and award dated 04.09.1996 passed by the learned 1st Sub Judge-cum-Land Acquisition Judge, Supaul in Land Acquisition Case No. 1 of 1994 enhancing the compensation. It appears that the land measuring 0.67 acres, comprised within Survey Khata No. 236, Plot No. 76, was acquired by the State Govt. for the purpose of Sursar Dhar Jal Nikas Yojana. According to the claimants, the said land was acquired in the year 1982 and possession was also taken in the year 1982, being L.A. Plot No. 86 of 1982. After acquisition, on oral information, the State of Bihar paid the compensation on 03.02.1993. The land acquired by the State of Bihar was Dhanhar-I land and at the time of acquisition, the 2 value was of Rs.71,000 per acre but the State of Bihar fixed the rate at Rs.4,483 per acre. Further, the case of the claimant is that three crops were grown in the acquired land such as Paddy, Wheat and Moong and sometimes, in place of Wheat, Maize crop was being cultivated. The yield of Paddy was about 40-45 mounds and likewise, the yield of Wheat was also 40-45 mounds and Moong was 10-15 mounds per acre. So far Maize is concerned, it was stated that the yields were 50-60 mounds per acre. The further case is that in the recent survey, the land of applicant has been categorized as Dhanhar-I. The claimant further claimed that the rate of the lands which were sold near the land of the claimant was for Rs.75,000-80,000 per acre but generally, the consideration amount is shown less in the sale deeds. The Land Acquisition Officer based his calculation on the sale deeds in which less consideration amount has been shown. The State of Bihar had already taken possession of the land as far back as in February 1982 and the Executive Engineer had assured to the claimant that compensation will be paid on the basis of market value and interest will be paid from the date of taking possession. (2) It appears that the notification under Section 4(i) of the L.A. Act was published on 17.07.1988. The claimant claimed that the valuation of the land may be determined on the basis of capitalization of the yearly yield of the land and on the basis of that, the claimant claimed the compensation at the rate of Rs.71,000 per acre and interest from February 1982. The claim of the applicant was referred under Section 18 to the Land Acquisition Judge. (3) The State of Bihar filed objection alleging that the claim under Section 18(2) of the L.A. Act is barred by law of limitation. The nature of the land of claimant was determined on the basis of the survey record of rights and rightly the compensation has been determined, as 3 such, the claimant is not entitled for enhanced compensation. (4) After trial, the learned Tribunal came to the conclusion that in this case, there is only evidence to determine the compensation on the basis of capitalization and calculated the yearly yield at Rs.4,180. Thereafter, 40% was deducted on account of cultivation expense which comes to Rs.2500. The said Rs.2500 was multiplied by 20 years capitalization and the compensation was calculated at the rate of Rs.50,000 per acre. Since, the land of the applicant was 0.67 acres, the compensation was determined at Rs.33,500. In addition to that, the learned Court below granted interest from the date of taking possession i.e. February 1982 at the rate of 12% and other compensation to which the claimant was entitled to. (5) The learned G.A. 2 appearing on behalf of the appellant submitted that there is no evidence on record about the nature of the land as Dhanhar-I except the oral evidences. Although, the claimants claimed that the nature of the land has been recorded as Dhanhar-I in the recent survey but the said recent survey record has not been filed by the claimant. The learned G.A. 2 further submitted that the learned Court below could not have granted interest at the rate of 12% per annum from the date of taking possession i.e. February 1982 because the notification under Section 4(i) of the L.A. Act was published on 17.07.1988 and therefore, the interest could not have been granted prior to that date. The learned G.A. 2 further submitted that for determining the compensation relating to agricultural land also, the learned Tribunal could not have capitalized it by multiplying the yearly yield by 20 times. According to him, at best, it should have been multiplied by 10 only. The learned counsel further submitted that there was no evidence regarding the rate of straw and Bhusa. But the learned Tribunal has added Rs.200 4 without there being any basis particularly when it was never claimed by the claimant. According to the learned counsel, the learned Tribunal could not have relied upon Exhibit-3 and therefore, the yearly yield regarding Paddy, Wheat and Moong pulse are wrong. According to the learned G.A. 2, it was the burden on the claimant to prove satisfactorily to the Land Acquisition Judge that the compensation awarded by the Land Acquisition Officer is inadequate. But except the oral evidences, no documentary evidences have been produced by the claimant in support of the yearly income or the sale deeds. The learned G.A. 2 further submitted that although, one sale deed i.e. Exhibit 1 is available on record which was filed by the claimant but then the learned Court below did not rely on that sale deed. On these submissions, the learned counsel submitted that the impugned judgment and award are liable to be set aside. (6) On the other hand, the learned counsel appearing on behalf of the respondent-claimant submitted that there is no illegality in the impugned judgment and order. The learned Tribunal has rightly relied upon Exhibit -3 which was the document admitted by the witnesses of the Opposite Party-appellant and it was marked Exhibit-3 on admission, therefore, now, the State of Bihar cannot challenge the reliability or otherwise of document i.e. Exhibit-3. The learned counsel further submitted that the claimants have adduced overwhelming evidence in support of their claim that the land of the claimant is Dhanhar-I land and three crops are cultivated in each year i.e. Paddy, Wheat and Moong pulse and in sometimes, instead of Wheat, Maize crop is also cultivated. The learned counsel further submitted that the witnesses have given the yearly production of the crops and the said evidence of the witnesses are supported by the documentary evidence i.e. Exhibit-3 which is being 5 admitted by the Opposite Party-appellant, State of Bihar. (7) The learned counsel next submitted that so far interest is concerned, according to Section 34 of the L.A. Act read with Section 23 (i)-(A) of the L.A. Act, the interest was payable from the date of taking possession and the learned Court below interpreting the said provisions has granted interest from the date of taking possession i.e. February 1982 and therefore, there is no illegality so far this point is concerned. (8) The learned counsel further submitted that the learned Land Acquisition Judge has rightly multiplied the yearly yield by 20 and arrived a just compensation which cannot be interfered with in the appeal. On these grounds, the learned counsel submitted that the appeal is liable to be dismissed. (9) On the basis of the above rival contentions of the parties, the points arises for consideration in this appeal are as follows: A. Whether the learned Land Acquisition Judge has rightly enhanced the compensation and whether the impugned judgment and award on this point is sustainable? B. Whether the learned Court below could have granted interest from the date of taking possession i.e. February 1982 particularly when the notification under Section 4(i) of the L.A. Act was published on 17.07.1988? (10) From perusal of the record, it appears that the claimants have examined C.W. 1, the son of the original claimant. He has supported the case of the claimant as claimed in the application under Section 12 of the L.A. Act. He has stated that the land of the claimant was Dhanhar-I and three crops are grown in each year. The yield of Paddy and wheat per acre is 40 mounds and the yield of Moong is 8-10 mounds per acre. The yield of Maize crop is 50-60 mounds per acre. The other witnesses i.e. 6 C.W. 2, Missi Lal Sardar, C.W. 3, Devnarayan Singh, C.W. 4, Rajendra Singh, C.W. 5, Rajendra Prasad Singh, C.W. 6, Jagat Bihari Das, all have stated the same thing. (11) So far evidence of the State of Bihar is concerned, 7 witnesses have been examined. O.P.W. 1 has proved the sale chart which has been marked as Exhibit-A. O.P.W. 2 has stated that on spot verification of the land acquired, it has been categorized as part of river. O.P.W. 3 has also proved his signature on Exhibit-A. O.P.W. 4 has stated that plot numbers were prepared by the then Amin, Dharmnath Singh and he has verified the same and signed on it, the same has been marked as Exhibit-B. The other witnesses i.e. O.P.W. 5, O.P.W. 6 and O.P.W. 7 have stated that they have verified the sale chart and on the basis of this, the compensation has been determined. (12) From the above evidences, it appears that there are oral evidences versus oral evidences. Admittedly, in the cadastral survey record of right of the year 1923, the nature of the acquired land has been mentioned as river. The witnesses examined by State have stated that they had visited the land acquired. So far yearly yield is concerned, it appears that exaggerated statements have been made by the witnesses regarding 3 crops cultivation which is not reliable. (13) The learned counsel appearing on behalf of the appellant relied upon a decision reported in 2007(Supp.) PLJR, Page 283 (Jagdish Singh & Anr. vrs. State of Bihar and ors.). The Division Bench of this Court in Paragraph 6 and 7 has held 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 7 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 effort 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. 7. In such situation there was no scope of interference at all.” (14) In the present case also, the witnesses examined on behalf of the State of Bihar, have stated that on spot verification and after perusing the record of right of the year 1923, the nature of the land has been mentioned. Contrary to this, the claimants although stated that the nature of the land has been recorded as Dhanhar-I in recent survey but no copy of the recent survey has been produced and copy of Register-2 has also not been produced. (15) In the case of Ahmedabad Municipal Corporation and others vrs. Shardaben and others, (1996) 8, Supreme Court Cases 93, the Hon’ble Supreme Court has held that the burden is always 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 scrutinise 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. Likewise in the case of State of U.P. and others vrs. Ram Kumari Devi(Smt.) and others reported in (1996) 8 Supreme Court Cases 577, the Hon’ble Supreme Court at Paragraph 4 has held as follows: 8 “4. It is seen that small pieces 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 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 another decision reported in (1996) 3, Supreme Court Cases 766(Hookiyar Singh and others vrs. Special Land Acquisition Officer, Moradabad and others), 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(i) of the L.A. Act is always on the claimants. In the said decision, the Hon’ble Supreme Court also held that though the apathy and blatant lapse 9 on the part of the acquiring officer to adduce evidence and also improper or ineffective or lack of interest on the part of the 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. Therefore, from the above facts, it is clear that there are catena of decisions of this Court as well as Hon’ble Supreme Court which 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. (17) In the present case as stated above, so far the nature and yearly yield is concerned, except the oral evidences, there are no documentary evidences produced by the claimant. So far Exhibit 3 is concerned, it is the letter issued by one of the officers of the State of Bihar to other officer, in other words, letter is inter se communication in the officer of the State of Bihar. Moreover, from the perusal of the impugned judgment itself, it is clear that the learned Court below has also not relied upon these evidences regarding the yearly yield. (18) So far capitalisation is concerned, in cases of agricultural land the multiplier of 12 is considered proper. Here multiplier of 20 has been used. (19) The learned counsel for the appellant submitted that the interest could not have been granted from the month of February 1982. The learned counsel relied upon a decision reported in 2004, Volume III, P.L.J.R. Page 62, S.C.(R.L. Jain(D) by Legal Representatives vrs. D.D.A. and others) and submitted that if possession is taken prior to the issuance of notification under Section 4(i) of the L.A. Act, it would not be in accordance with Sections 16 or 17 of the L.A. Act and it will be without any authority of law and consequently cannot be recognized for 10 the purpose of the Act. At Paragraph 12 of the said decision, it has been held that the words “so taking possession” can under no circumstances mean such dispossession of the owner of the land which has been done prior to publication of notification under Section 4(i) of the Act which is de horse the provision of the Act. It appears that the Hon’ble Supreme Court on this point relied upon various decisions of the Hon’ble Supreme Court reported in J.T. (2003) 9, Supreme Court 23 (Smt. Lila Ghosh vrs. State of West Bengal) and also Union of India vrs. Budh Singh reported in (1995) 6, SCC 233. In all these cases, same view has been taken. From perusal of the impugned judgment and award, it appears that the learned Land Acquisition Judge has awarded interest from the date of alleged taking possession i.e. February 1982 whereas notification under Section 4(i) of the L.A. Act was published on 17.07.1988. Therefore, on this score also, the order is not sustainable. (20) In view of the above discussion, it appears that the claimants have failed to produce reliable evidence in support of their case regarding the change of the nature of the land, the yearly yield of the lands acquired. The learned Land Acquisition Judge also did not rely upon the evidences and applied a procedure unknown to law and also multiplied by 20 times and further it appears that the interest has been granted from the alleged dispossession i.e. February 1982 which are all against the well settled principles of law as laid down by the Hon’ble Supreme Court. (21) The claimant has failed to show that the award of the Land Acquisition Officer is inadequate and the land acquired is capable of fetching more price. I, therefore, find that the compensation awarded by Land Acquisition Officer is proper and just. (22) In view of above discussions, the impugned judgment and award is unsustainable in the eye of law. Accordingly, this First Appeal is 11 allowed. The impugned judgment and award are set aside and it is held that the award given by the Land Acquisition Officer is correct. (23) In the facts and circumstances, no order as to costs. Patna High Court, Patna Dated 1st September, 2010 N.A.F.R./ Saurabh (Mungeshwar Sahoo, J.)