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Judgment
D. Reddeppa Reddi, J.—The claimants in OP.Nos. 6/89 to 10/89 have preferred these appeals u/s 54 of the Land Acquisition Act, 1894 (for short ''the Act'') aggrieved by the judgments and decrees dt. 18-9-1991 rejecting their claim for enhancement of compensation and affirming the compensation awarded by the Land Acquisition Officer for the land bearing S.Nos. 257/1A, 263/1 A, 292/1A, 320/1A and 320/1B1 measuring Ac.0.20 cents, Ac.0.17 cents, Ac.0.39 cents, Ac.0.10 cents and Ac.0.19 cents respectively, together with permanent structures, compound wall, wells, trees etc., acquired for the purpose of construction of fly over across railway line at Bhimavaram Railway Junction. Since common questions of fact and law are involved in these appeals, they are being disposed of by this common judgment.
The acquisition proceedings commenced with the publication of draft notification u/s 4(1) of the Act in the A.P. Gazette on 5-12-1987. Possession of the acquired property was taken over on 7-5-1988. After due enquiry, the Land Acquisition Officer determined the market value of the land at the rate of Rs. 9,680/- percent, i.e., Rs. 200/- per sq. yard. He also determined the value of the permanent structures, compound wall, wells and trees etc., thereon as under.
S.No. 257/lA (1) Tiled House Rs. 1,56,300/- (2) Thatched shed Rs. 1,450/- (3) Compound wall Rs. 32,100/- 2. S.No. 263/lA (1) Permanent structures Rs. 26,000/- (2) Trees Rs. 60/- 3. S.NO. 292/1A (1) Permanent structures Rs. 1.82,900/- (2) Trees Rs. 4,080/- 4. S.NO. 320/1A Permanent structures Rs. 2,71,200/- 5. S.NO. 320/1B1 Permanent structures Rs. 4,08,050/-
In addition, he awarded additional amount, solatium and interest as provided under the Land Acquisition (Amendment) Act, 1984 (for short ''the Amendment Act'')- Accordingly, he passed Award No. 8/88 on 25-8-1988. Not satisfied with the award, the claimants made applications u/s 18 of the Act to refer the matters to a Civil Court for determination of proper compensation. Accordingly, the matters were referred to the Court of Subordinate Judge at Bhimavaram on whose file they were registered as OP.Nos.6/89 to 10/89.
The appellant in A.S.No. 167/92 is the first claimant in OP.No. 6/89. The second claimant therein is a rice mill called ''Sri Venkateswara Satyanarayana Rice Mill'' in which the first claimant claims 1/3rd share. It may be noted that the second claimant has not chosen to prefer any appeal. The appellants in AS.No. 3065/92 are the claimants in OP.No. 7/89. Appellants in A.S. No. 278/92 are the claimants 1 to 4 and 6 to 17 in OP.No. 8/89. The fifth claimant therein is the appellant in AS.No. 1114/92. The appellants in AS.No. 20/92 are the claimants 1 and 2 in OP.No. 9/89. The appellant in AS.No. 79/92 is the third claimant in OP.No. 9/89. The appellants in AS.No. 323/92 are the claimants in OP.No. 10/89. They filed separate claim statements claiming compensation under various heads, the details of which will be referred to, if necessary, at the appropriate stage. Their claims were resisted by the referring officer by filing counter statements.
Evidence was adduced by both parties separately in each petition. P.Ws. 1 to 4 were examined and Exs. A-1 to A-16 were marked on behalf of the claimants in OP.No. 6/89. Therein, on behalf of the Referring Officer R.Ws. 1 to 3 were examined and Exs.B-1 to B-7 were marked. In OP.No. 7/89 P.Ws. 1 to 3 were examined and Exs. A-1 to A-4 were marked on behalf of the claimants. Therein R. W. 1 was examined and Exs.B-1 to B-3 were marked on behalf of the Referring Officer. In O.P.No. 8/89 P.Ws. 1 to 6 were examined and Exs.A-1 to A-4 were marked on behalf of the claimants. Therein on behalf of the Referring Officer, R.Ws. 1 to 3 were examined and Exs.B-1 to B-7 were marked. In O.P. No. 9/89 P.Ws. 1 to 4 were examined and Exs.A-1 to A-18 were marked on behalf of the claimants. Therein on behalf of the Referring Officer, R.Ws. 1 to 3 were examined and Exs.B-1 to B-5 were marked. In OP.No. 10/89 P.Ws. 1 to 12 were examined and Exs.A-1 to A-46 were marked on behalf of the claimants. Therein on behalf of the Referring Officer, R.Ws. 1 to 3 were examined and Exs.B-1 to B-5 were marked. On the basis of the said oral and documentary evidence, the reference Court found that the claimants failed to establish their case for compensation higher than what was awarded by the Land Acquisition Officer. Accordingly, he passed the impugned judgments and decrees. Hence, these appeals by the claimants for enhancement of compensation.
Elaborate arguments have been advanced by the learned Counsel for the appellants and learned Addl. Advocate General appearing for the Referring Officer. They have taken us through the relevant oral and documentary evidence adduced on either side and judgments under appeals. On consideration of their submissions, we formulate the following points for consideration:
(1) Whether the reference Court is justified in holding that the appellants failed to establish their case for enhancement of compensation for the land and if not, what is the just and reasonable amount of compensation they are entitled to therefor?
(2) Whether the appellants have established their case for awarding compensation towards loss of severance?
(3) Whether the appellants have established their case for enhancement of compensation towards permanent structures?
(4) Whether the appellants have established their case for enhancement of compensation for the trees and the wells?
(5) Whether the appellant in AS.No. 79/92 is entitled to claim any compensation towards loss of employment?
Point No. 1: The appellants have laid claim before the reference Court for the land at different rates ranging from Rs. 1,000/- per sq. yard to Rs. 1,950/- per sq. yard. In these appeals also their claim for the land varies from Rs. 500/- per sq. yard to Rs. 1,950/- per sq. yard.
Ex.B-3 in OP.No. 8/89 gives a clear picture as to the location of the acquired land. It is towards south of Palakol-Pamarru road (P.P. Road). It is in three bits- (1) Comprised in S.No. 320/1A and 320/1B1; (2) Comprised in 292/1A and (3) 257/1A and 263/1A. The first bit is at one end of the fly over and the remaining two bits are at the other end of the fly over. It is stated across the bar that the length of the fly over is about 1/2 k.m. The appellants in AS.Nos. 323/92, 20/92 and 79/92 are the owners of the first bit. The appellants in AS.Nos. 278/92 and 1114/92 are the owners of second bit. The appellants in AS.Nos. 167/92 and 3065/92 are the owners of the third bit. It has come in the evidence of all the witnesses that the land covered under all these appeals is in the heart of Bhimavaram town. It is not disputed before us that P.P. Road is a commercial locality in Bhimavaram Town. It is also not disputed that all along the P. P. Road there are business establishments, cinema theatres etc. It has also come in evidence that near the acquired land there are rice mills, APSRTC Depot, Saint Mary Hospital, and Saint Mary Convent School and the Bhimavaram Junction Railway Station is just at a distance of hundred yards. In this view of the matter, we have absolutely no doubt whatsoever that the acquired property had commercial value as on the date of publication of the draft notification.
To substantiate their claim, the claimants have exhibited several documents in respective petitions. However, the learned Counsel for the appellants confined their submissions to only few of them. Sri P. Seetharama Raju, learned Counsel for the appellant in AS.No. 167/92 and Sri S. Venkata Reddy, learned Senior Advocate for the appellant in AS.No. 3065/92 rested their submissions mainly on the basis of registered sale deeds dt.30-4-1986, 25-11-1988, and 25-4-1989, certified copies of which have been marked as Exs. A-2, A-3 and A-4 respectively in OP.Nos.6 and 7 of 1989. These documents have been exhibited in other petitions also with different numbers. However, for the sake of convenience they will be referred to hereinafter only as Exs.A-2, A-3 and A-4. Sri D. V. Seetharama Murthy, learned Counsel for the appellant in AS.No. 323/92 rested his submissions on the basis of registered sale deeds dt.23-7-1986 and 20-8-1984, certified copies of which have been marked as Exs.A-9 and A-13 respectively in OP.No. 10/89. He also tried to substantiate his submissions on the basis of partition deed dt. 27-4-1985 and the plaint in OS.No. 36/86 on the file of the Subordinate Judge, Bhimavaram, certified copies of which have been marked as Exs. A-12 and A-43 respectively in OP.No. 10/89. Hereinafter, these four documents will be referred to only as Exs.A-9, A-13, A-12, and A-43 for the purpose of all appeals. Sri K.L.N. Swamy, learned Counsel for the appellant in AS.No. 278/92 and Sri C. Ramachandra Raju, learned Counsel for the appellant in A.S. No. 1114/92 adopted the arguments of Sri. P. Seetharama Raju, whereas Sri Noushad Ali, learned Counsel for the appellants in AS.Nos. 20/92 and 79/92 adopted the arguments of Sri D. V. Sitharama Murthy.
In Administrator General of West Bengal Vs. Collector, Varanasi, it has been held by the Supreme Court that:
"The market value of a piece of property, for purposes of Section 23 of the Act, is stated to be the price at which the property changes hands from a willing seller to a willing, but not too anxious a buyer, dealing at arms length."
In Chimanlal Hargovinddas Vs. Special Land Acquisition Officer, Poona and Another, the Supreme Court reiterated that:
"the Court has to correlate the market value reflected in the most comparable instance which provides the index of market value."
Keeping the above principles in mind, we proceed to determine as to which of the transactions effected under the documents referred to supra may be taken as safe basis for determination of the market value for the acquired land.
Ex. A-43 is a certified copy of the plaint in OS.No. 36/86 on the file of the Subordinate Judge, Bhimavaram, wherein one Tenneti Yamoraja is the plaintiff and Tenneti Kameswara Rao and 20 others are the defendants. The same has been exhibited through P.W.1, the claimant in O.P.No. 10/89. This has been filed to show that Ac.0.24 cents out of Ac.0.84 cents in R.S. No. 320/B, which is in P.P. Road, was valued at Rs. 20,00,000/-, which works out to Rs. 1721-76 per sq. yard . This item of the property has been shown as Itom No. 2 in ''B'' Schedule to the plaint. On perusal of the same, we find that there exist 11 shops on this item of property. The value of Rs. 20,00,000/- shown against this item was the value of the land as well as the 11 shops standing thereon. That apart, Ac.0.59 1/4 cents of land in the same survey number shown as Item No. 1 in ''B'' Schedule was valued at Rs. 9,00,000/-, which works out to only Rs. 314/- per sq. yard. Even otherwise, the value shown in the plaint for a particular property cannot form basis for determination of market value u/s 23 of the Act, for it cannot be taken as the price settled between a willing seller and a willing purchaser. Thus, viewed from any angle this document cannot be of any help to the appellants.
So also Ex.A-12. It is a certified copy of the partition deed dt.27-4-1985 entered into between one Smt. Katta Subbamma W/o Narasimha Murthy, her sons and grand sons. It has been marked through P.W.I and proved through P.W.8, its attestor, to show that the value of the land covered thereunder was Rs. 1,100/- per sq. yard. But on careful perusal of the document, we find that it is not in respect of vacant land but in respect of structures. Moreover, the recitals therein clearly indicate that the market value of the land has been shown as Rs. 500/- per sq. yard.
Ex.A-13 is a certified copy of sale deed dt. 20-8-1984 under the original of which a building constructed in the year 1941 standing on a plot measuring 100 sq. yards was sold and purchased for a consideration of Rs. 1,21,500/-. It has been marked through P.W.I, the claimant and proved through P.W.5, its attestor, perhaps with a view to show that the entire price represents the value of the land alone. However, from the very recitals in the document, it is clear that the value specified therein represents the value of the land as well as the building. It does not represent the value of the land alone. Further, P.W.5, the attestor of this document admits that the property covered thereunder is at a distance of more than 1 K.M. from the acquired land and it is situate in the costliest locality in Bhimavaram Town. Thus, viewed from any angle, the transaction effected under this document cannot be accepted as a comparable sale. Therefore, it is of no help to the appellants.
Ex.A-9 is a certified copy of a registered sale deed dt. 23-7-1986 under the original of which 40 sq. yards in S.No. 415/6 was sold and purchased for a consideration of Rs. 48,000/-, which works out to Rs. 1,200/- per sq. yard. It has been marked through P. W.1, the claimant and proved by P. W.7, its scribe. Admittedly, it is not on P.P. Road. Neither P.W.I nor P.W.7 testifies that the land covered thereunder is in close proximity to the acquired land. On the other hand, P.W.7 stated in his chief-examination that it is at a distance of 300 yards from the acquired land. In Chimanlal''s case (2 supra), it has been held that proximity in situation is one of the most relevant factors. As already noted, the claimants have failed to establish that the piece of land covered under this document is in close proximity to the acquired land. Further, it is not as if that there are no transactions relating to the sale and purchase of land situate adjacent to P. P. Road. Infact, documents relating to such transactions have been exhibited in all the petitions. Having regard to these facts, we are not inclined to adopt the value reflected thereunder as the basis for determination of market value of the acquired land.
Ex.A-3 is a certified copy of registered sale deed dt. 25-11-1988 under the original of which 70 sq. yards was purchased for a consideration of Rs. 40,000/-, which works out to Rs. 571/- per sq. yard. Ex.A-4 is a certified copy of registered sale deed dt. 25-4-1989 under the original of which 68 1/4 sq. yards was purchased for a consideration of Rs. 39,000/- which works out to Rs. 570/- per sq. yard. Exs. A-3 and A-4 have been proved through P. W.3, the purchaser under Ex.A-4 and the husband of the purchaser under Ex.A-3. Admittedly, they relate to post notification sales. Learned Counsel for the appellants have been fair enough to state that the value reflected thereunder cannot form basis for determination of the market value of the acquired land, but it would be relevant only to show that there was escalation of price of the land in the vicinity subsequent to the publication of the draft notification. Thus, in substance, these documents too are not of much help to the appellants.
Then remains the crucial document, viz., Ex.A-2, a certified copy of registered sale deed dt.30-4-1986. Under the original of this document, Ac. 0.60 1/4 cents of land situated on P.P. Road was purchased by the Bhimavaram Co-operative Urban bank from one Kondepalli Leelavathi for a consideration of Rs. 1,50,000/-, which works out to Rs. 496/- per sq. yard. It has been exhibited and duly proved in almost all the petitions. Enough to state that the Secretary of the Bank has been examined as P.W.2 in OP. No. 6/89 to prove the same. In his deposition, he gives full particulars of this transaction. It is clear from his evidence that the site covered under Ex.A-2 is in close proximity to the acquired land. The transaction is also close in proximity of time to the present acquisition. He denied the suggestion that the Bank was forced to purchase the said site at a higher rate due to pressure from the Reserve Bank of India. Sri Ramesh Ranganatham, learned Government Pleader appearing for the learned Addl. Advocate General does not dispute the genuineness of this transaction. However, he has strenuously contended that the bank was forced to purchase the said site at a higher rate due to pressure from the Reserve Bank of India and therefore the value reflected thereunder cannot form basis for determination of the market value for the acquired land. We are unable to appreciate this contention in the absence of any material to show that there was a specific direction from the Reserve Bank of India to purchase that particular site. True, it is admitted that Bhimavaram Co-operative Urban Bank was informed bv the Reserve Bank of India that the permission granted by it to open a bank at Bhimavaram would be cancelled if the bank was not opened within the time granted. But there was no specific direction from the Reserve Bank of India to the Bhimavaram Co-operative Urban Bank to purchase this particular site. There is also no material to show that permission was granted by the Reserve Bank of India to open a Bank only on P.P. Road. All the officials of the bank, who have been examined to prove Ex.A-2, have specifically denied the suggestion that higher amount was paid for the site covered under Ex.A-2. It is apparent from their evidence that they could not secure any other suitable site at a lesser price. Moreover, it cannot be disputed that the decision to purchase the site in question at that particular rate should have been with the previous approval of the Board of Directors of the Bank. We find absolutely no reason to doubt the wisdom of the Board of Directors. Having regard to all these facts, we find no basis whatsoever to discard the value reflected under Ex.A-2. On the other hand, we are fully satisfied that the value reflected thereunder represents the real value of the land in the vicinity. In this view of the matter, we consider it unnecessary to deal in detail the decisions in (1) Administrator General of West Bengal v. Collector (1 supra); (2) Prithvi Raj Taneja (Dead) by Lrs. Vs. The State of Madhya Pradesh and Another, ; and (3) Land Acquisition Officer, Eluru and Others Vs. Jasti Rohini (Smt) and Another, cited by the learned Government Pleader to drive home his point that the buyer under Ex.A-2 is too anxious a buyer and he was in dire need to purchase the same.
The acquired land was in commercial locality in Bhimavararn, Town. Its extent was only Ac.1-06 cents with number of shops thereon. People were carrying on business therein. It was compulsorily acquired, of course, for a public purpose. In matters like this the State should be objective in its approach. It should not try to whittle down just claims. In this context, it is apt to quote the following observation of Bhagawati, C.J. of the Supreme Court made in Bhag Singh and Others Vs. Union Territory of Chandigarh through the land acquisition collector, Chandigarh, :
"The State Government must do what is fair and just to the citizen and should not, as far as possible except in cases where tax or revenue is received or recovered without protest or where the State Government would otherwise be irretrievably prejudiced, take up a technical plea to defeat the legitimate and just claim of the citizen."
In the light of the above discussion, there should be no hesitation to hold that the reference Court is not justified in holding that the appellants failed to establish their case for enhancement of compensation. It should also be held that the appellants are entitled to market value for the acquired and at the rate of Rs. 500/- per sq. yard. We answer this point accordingly.
Point No. 2: The appellant in AS.No. 167/92 that arises out of OP. No. 6/89 restricted his claim to a sum of Rs. 50,000/- towards damages due to severance of the acquired land from the remaining land. Likewise the appellant in AS.No. 1114/92 that arises out of OP.No. 8/89 claimed a sum of Rs. 6,000/- towards this count.
The appellant in AS.No. 167/92 deposing as P.W.I in OP.No. 6/89 asserted that in view of the acquisition of the front side site the remaining site became useless. P.W.4, the second claimant in OP.No. 6/89 also deposed that they had no other alternative way to the rice mill. But, on earnest consideration, we are not inclined to accept their versions on this aspect. The reasons are more than one. First, as already noted, what was acquired in this case was only 10 cents out of Ac.0.90 cents in R.S.No. 257/1 and another Ac.0.10 cents out of Ac.1-00 in front of the rice mill. Second, no evidence was adduced to show that the rice mill was closed and its licence was surrendered to the licencing authority. However, Sri P. Sitarama Raju, learned Counsel for the appellant has vehemently urged for a warding some reasonable amount of compensation towards this count in view of the admission of R.W.1 that left over site was adversely affected. To buttress his submission, he has drawn our attention to the following version of R.W.1 elicited from him in the course of cross-examination:
"The front side site of the petitioners is acquired and as such the remaining site of the petitioners towards south was adversely affected and its value was greatly reduced on account of the severance of front side site. On the severance of the front side site the rice mill of the petitioner was greatly affected. I feel that they will be entitled for some compensation for severance as the back side site became useless and I feel that he is not entitled to claim Rs. 50,000/- on this count."
From the above version of R.W.1, the appellant might have suffered some loss due to severance of the acquired land from the remaining land held by him. But, he has not chosen to adduce any evidence to substantiate his, claim. In the absence of any such evidence, we are not inclined to grant any compensation towards this count.
Likewise, the husband of the appellant in As.No. 1114/92 deposing as P.W.4 in OP.No. 8/89 stated that in view of the acquisition of prominent part of the site, the remaining site has become useless and as such his wife is entitled tea sum of Rs. 50,000/- towards damages due to severance. But, curiously, only a sum of Rs. 6,000/- was claimed towards this count in the claim statement. Moreover, his evidence is silent about the extent of the remaining site and how it became useless. In the absence of such evidence, we are of the considered view that no compensation can be awarded towards this count.
In view of the above discussion, we hold that the appellants in AS.Nos. 167/92 and 1114/92 are not entitled to any compensation towards severance loss. No such claim has been made in other appeals. The point is thus answered.
Point No. 3: There were permanent structures like shops, residential houses,, tiled houses, thatched sheds, compound walls etc., on the land covered in all the petitions. The Land Acquisition Officer awarded compensation for the same on the basis of estimates furnished by the Executive Engineer (R & B), Bhimavaram. The appellants though claimed for higher rate of compensation for the same in their claim petitions have not chosen to adduce any acceptable evidence to substantiate their claim. Learned Counsel for the appellants have not drawn our attention to any evidence in this regard excepting the oral testimony of the claimants themselves. We are of the considered view that it would not be safe to enhance compensation for the structures merely on the basis of oral evidence of the claimants. In this view of the matter, we have no option but to hold that the appellants failed to establish their claim for higher rate of compensation for permanent structures. This point is accordingly answered.
PointNo. 4: There were two coconut plants of 2 years old and one mango plant of 2 years old in S.No. 262/lA which was the subject matter of reference in OP.No. 7/89 against which AS.No. 3065/92 arises. There were three yielding coconut trees in S.No. 292/1A which was the subject matter of reference in OP.No. 8/89 against which AS.Nos. 278/92 and 1114/92 arise. It is stated in the claim statement in OP.No. 8/89 that there was a well also in S.No. 292/1A. The Land Acquisition Officer has awarded compensation of Rs. 40/- for two coconut plants of 2 year old and Rs. 20/- for one mango plant of 2 years old. He has also awarded compensation of Rs. 4,080/- for three yielding coconut trees. However, he awarded no compensation for the well stated to have been in S.No. 292/1A. Learned Counsel for the appellants have not brought to our notice any evidence warranting enhancement of compensation for the trees. Regarding the value of the well, the husband of the fifth claimant in OP.No. 8/89 deposing as P.W.4 merely stated that the well was worth Rs. 2,000/-. He has not even given the dimensions of the well. In the absence of such evidence, we see no justification whatsoever to award any compensation for the well. For these reasons, we are of the considered view that the appellants have not made out a case for enhancement of compensation for the trees and for awarding compensation for the well. This point is accordingly answered.
Point No. 5: Claimant No. 3 in OP.No. 9/89 who is the sole appellant in AS.No. 79/92 has claimed a sum of Rs. 70,000/- as compensation towards loss of employment. It is the evidence of her husband deposing as P.W.1 that due to acquisition of their shop, himself, his wife and their six children became jobless. Therefore, they are entitled to a''compensation of Rs. 70,000/-. It has been held by the Supreme Court in Jaspal Singh and Another Vs. Union of India (UOI) and Another, that:
"Sub-section (1) of Section 23 itself envisages that in determining the amount of compensation to be awarded for land acquired under the Act, the Court shall take into consideration the loss of earnings as a component for the acquisition of the property. The mere fact that the claimant was displaced on account of acquisition and could not resuscitate himself by establishing a poultry farm business anywhere, cannot be a ground under clause fourthly of Section 23(1) to determine the compensation on that basis and his loss of earnings till date of resettlement should not be determined in that behalf, we find that it is difficult to give such a construction to clause fourthly of Section 23. What it. contemplates of is that as a consequence of acquisition, if any damage is sustained by the claimant or interested person at the time of Collector''s taking possession of the land injuriously affecting the other property, movable or immovable, in any other manner or his earnings from the property, the Collector is required to determine the compensation as is available on the date when the compensation is awarded. The mere fact that after the acquisition, the interested person or claimant has quickly rehabilitated himself or set up business once over, or could not start his business lately would not be a ground to increase the compensation from the loss of business as a component of determination of the compensation of "loss of profit".
In view of this settled proposition of law, it must be held that no compensation can be awarded towards loss of employment. It follows, the appellant in As.No. 79/92 is not entitled to any compensation under this count. This point is thus answered.
For the aforesaid, reasons, we hold that:
(1) the appellants are entitled to market value for the land acquired at the rate of Rs. 500/- per sq. yard together with all statutory benefits like additional amount, solatium and. interest as provided under the Amendment Act;
(2) the appellants in As.Nos. 167/92 and 1114/92 are not entitled to any compensation towards loss of severance;
(3) the appellants are not entitled to enhancement of compensation for permanent structures like shops, residential houses, tiled houses, thatched sheds, compound walls;
(4) the appellants in AS.Nos. 3065 /92,278/92 and 1114/92 are not entitled to enhancement of compensation for the trees;
(5) the appellant in AS.No. 1114/92 is not entitled to any compensation for the well;
(6) the. appellant in AS.No. 79/92 is not entitled to any compensation towards loss of employment; and
(7) the amount already paid to the appellants pursuant to the award of the Land Acquisition Officer shall be deducted from the amount directed to be paid hereunder.
In the result, the appeals are allowed to the extent mentioned above. However, having regard to the facts and circumstances of the cases, we make no order as to costs.