M.L. Dhar vs Collector Land and Another

Mansoor Ahmad Mir, J.—This appeal is directed against the Judgment/award and decree dated 31st March, 2004 passed by learned

Principal District Judge, Srinagar, in reference titled as M.L. Dhar and Ors. v. Collector, Land Acquisition and Ors., hereinafter referred to as

impugned judgment/award, whereby and whereunder the reference came to be dismissed. Appellant has assailed the impugned award on various

grounds taken in the memo of appeal.

Brief facts of the cases:

Collector, Land Acquisition acquired land measuring 222 kanals and 16 marlas for construction of Modern Slaughter House in Srinagar. Final

award came to be passed on 4-12-1993 which came to be accepted on 8-12-1993 and accordingly payment was received by owners on 10th

December, 1993.

It appears that claimants have not objected to the acquisition of the land but were not satisfied with the amount of compensation award by the

Collector as alleged in the application for making reference. It la further averred In the application that they have received the compensation under

protest and made a request to the Collector for making reference. The report of Tehsildar was not accepted by the Collector and market value of

the acquired land was higher than assessed and awarded by the Collector. Claimants had prayed for awarding compensation at the rate of Rs.

80,000/- per kanal.

It appears that claimants have relied on some sale transactions. Collector resisted the reference and following Issues were framed:

Whether the petitioners are entitled to the enhancement of the compensation fixed already by the prescribed authority? OPA.

Whether the compensation awarded by the said authority is liable to be set aside and enhanced, if so, in what terms and to what extent? OPA.

Whether the application Is barred by the principle of estoppel, If so how? OPNA.

In case Issue No. 3 is settled in favour of defendants whether the reference In terms of Section 18 is not maintainable? OPNA.

Relief.

Applicants have examined Shaief-ud-Din, Mehraj-ud-Din, Ghulam Qadir Kumbay, Ghulam Mohammad Mir and Zahoor Ahmad Mir as their

witnesses and the statement of M.L. Dhar, attorney, was also recorded.

Collector examined Dr. Mohammad Amin, Hakim Manzoor Ahmad, Zahoor Ahmad, Mohammad Yehya and Ghulam Mohammad Mir as

witnesses.

It is profitable to give a brief resume of the evidence of the parties herein:

Makhan Lal Dhar, attorney holder, has stated that Collector has awarded meagre compensation and the rate of land was more than Rs. 80,000/-

per kanal and he has sold land at Rs. 80,000/- per kanal. In cross examination he stated that he has sold the land at Rs. 80,000/- after he came to

know that Government has acquired the land in question.

AW Sharief-ud-Din Girdawar, has deposed that he could not state in absence of record whether any sale deed has taken place within ten years

prior to 1989.

AW Mehraj-ud-Dina Patwari, deposed that Sona Batni has sold 1 kanal of land for Rs. 73,000/- and 17 marlas for an amount of Rs. 60,000/-.

AW's Ghulam Qadir Kumbey, Ghulam Mohammad Mir. Mohammad Yasin and Zahoor Ahmad have also stated that amount awarded was

meagre.

NAW Dr. Mohammad Amin has stated that land was identified by the department at Wanihama for construction of slaughterhouse. M.L.

Dhar, attorney holder of landholder, agreed to sell the land at the rate of Rs. 24500/- per kanal Thereafter, meeting was convened by

Commissioner. Agriculture. M.L. Dhar participated personally in the said meeting and consensus was arrived at between the parties and rate fixed

at Rs. 28,000/- per kanal and accordingly notification was issued and land was acquired. Further he deposed that acquisition was made for 2

kanals 16 marlas but later on it was found that landowners alter initiation of acquisition sold 2 kanals. Collector made request to Sub-Registrar not

to register sale deed In respect of two kanals. Collector was accordingly constrained to delete the said 2 kanals from the acquisition proceedings.

NAW Hakim Manzoor deposed that land was for construction of slaughter house and accordingly notification was issued u/s 4 of Land

Acquisition Act by Collector who assessed the compensation at the rate of Rs. 40,000/- but the same was found exorbitant and then it was

decided to fix the rates by negotiation through Development Board and accordingly Development Board initiated negotiations with land owners

and rate was fixed at Rs. 28,000/- per kanal.

NAW Mohammad Yahya Teeli deposed that in the year 1993 he was posted as Additional Deputy Commissioner, Srinagar and as Incharge

Land Acquisition he passed award dated 4th December, 1993. Attorney holder, M.L. Dhar, did not object to the tentative award and therefore,

final award came to be passed.

I am of the considered view that entire controversy revolves round issues 3 and 4, so I deem it proper to determine whether the finding

returned on these issues is legally correct or otherwise.

I am of the considered view that finding returned by the trial Court while passing impugned award is legally sound for the following reasons:

It. was pleaded by the Collector that Sh. M.L. Dhar, Attorney holder, made negotiation and arrived at amicable settlement whereby the rate

was fixed at Rs. 28,000/-per kanal. Collector also led evidence in support of Its stand. Appellant could not dislodge the evidence of Collector that

attorney holder had not. agreed to pass the award at the rate of Rs. 28000/- per kanal. It is profitable to reproduce relevant portion of the award

herein, which reads as under:

Mr. Dhar attorney holder has nowhere disagreed with the objection put forth by the intending department that he has not consented to the rate of

Rs. 28,000/- offered to him. But has agreed for the said rate. His statement that the new owners based on same agreement can claim any higher

rate is considerable. The new owners have not acquired any title so far in the land and as such have no locus standi. There seems no other

alternative but to rely upon the negotiated rate of Rs. 28,000/- between the attorney holder and the intending department.

Keeping in view the above discussed facts on uniform rate of Rs. 28,000/- per kanal of land is allowed and awarded. The assessment in respect of

fruit bearing trees and structures received from the District Horticulture Officer and Supdt. PWD Srinagar shall be payable without any alteration.

Also the owners/interested persons shall be entitled for 15% jabirana on the total compensation amount permissible under the Act....

Viewed thus Collector has proved by leading evidence that parties had arrived at an amicable settlement and consensus and accordingly

agreed that Rs. 28,000/-was to be paid as compensation per kanal.

In the given circumstances, attorney holder could not dispute the adequacy of compensation and make request for making reference. Keeping

in view the mandate of Section 32 of Land Acquisition Act the claimants are estopped from claiming enhanced compensation. Thus reference is

not maintainable.

It is not the case of the claimants that they had agreed to the said amount under threat, duress or mis-representation. Apex Court in case titled

as Wardington Lyngdoh and others Vs. The Collector, Mawkyrwat, has held that reference is not maintainable if compensation Is received without

protest. It is profitable to reproduce para-5 of the said judgment herein:

It will thus be clear that the persons interested in the land are entitled to receive compensation awarded by the Collector u/s 11 under protest

and entitled to object to the compensation determined for the Collector. No person who had received the amount otherwise than under protest

should be entitled to make the application u/s 18 within the limitation prescribed under the proviso to Sub-section (2) of Section 18 together with

the grounds on which the objections have been taken. Thereon the Collector is enjoined to make a reference to the Civil Court with the statement

in the manner stated in Section 19.

Apex Court has also taken the same view in case titled Orissa Industrial Infrastructure Development Corporation Vs. Supai Munda and

Others, . It is profitable to reproduce Para 13 of the said Judgment herein:

Learned Counsel for the appellants stressed to press the proviso to Section 31(2) of the Act, which provides that the reference u/s 18 of the

Act is incapable unless a person has received the compensation amount under protest. This benefit will not be available to the appellants in the

present case because, as already noticed, the claimant has received the compensation under duress.

Apex Court has also observed in case reported in Abdul Aziz Abdul Razak and another Vs. Municipal Corpn. of Greater Bombay and

another, that when a party has agreed to a settlement and received the amount of compensation cannot make a demand for additional amount later

on.

It is neither the case of the claimant that he had received compensation under protest nor he pleaded that he was made to receive the amount

under duress, threat or compulsion.

In the given circumstances, issues 3 and 4 have been rightly decided by the trial Court in favour of the Collector and against the

claimants/appellants.

Parties have led evidence, so I deem it proper determine issues 1 and 2 and hold whether the petitioners are entitled to enhanced

compensation or not.

I am of the considered view that claimants/appellants have failed to prove that the amount of compensation was meager and prevalent market

rate was more than what was awarded by the Collector in terms of the award. The claimants have pressed into service two sale deeds which

appears to have been executed after notification was issued. Mohammad Yaseen has purchased 1 kanal of land at the rate of Rs. 73,000/-and

Zahoor Ahmad purchased at the rate of Rs. 71,000/-. Whether these two sale deeds can be made basis for holding that the compensation was

wrongly awarded and claimants were entitled to higher compensation as awarded. I am of the view that the said sale deeds cannot be made basis

for holding that amount awarded was meager in any way.

Apex Court in case reported in State of West Bengal Vs. Lohit Kumar, has held that if documents have been executed after the notification u/s

4 of Land Acquisition Act is issued the same cannot be taken into consideration in order to claim higher compensation. Appellants have led

evidence and proved that the sale deeds came to be executed after issuance of the notification.

It is the bounden duty of the claimants/respondents to prove that what a willing Vendee would have paid to willing vendor. There is not an iota

of evidence which would have been made the basis for holding that what amount would have been paid by the willing Vendee to the willing

Vendor.

The Apex Court has held in case Special Deputy Collector and another etc. Vs. Kurra Sambasiva Rao and others, etc., , as under:

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 u/s 4(1) of the Act; but not an anxious buyer dealing at arm's

length with throw away price, nor facade of sale or fictitious sales brought about in quick succession or otherwise to inflate the market value. The

judgment 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.

While going through this judgment, the acid test is that what a willing buyer in a normal human conduct would be willing to buy as a prudent

man in a normal market conditions prevailing in the open market in the locality. The test is not what an anxious buyer will offer in order to inflate the

market value. It is the duty of the Judge to sit in the armed chair of the said willing buyer and seek answer.

The Apex Court has laid down the guidelines and held that it is bounden duty of the Court to ascertain what was the prevalent market rate at

the relevant point of time. It is also the duty of the Court to see that the claimants are not taking advantage of any factor in order to claim

compensation at higher rates. It should not be as a bone in disguise. It is for the Court to see that what amount should have been awarded at the

relevant time.

I am of the considered view that the appellants have not produced any evidence indicating what a willing buyer would have paid and accepted

by a willing seller.

It is beaten law of the land that sale deeds of small portion of land cannot be taken into consideration while assessing the compensation.

My considered view is that one or two sale instances of a three or four marlas of land cannot be the ground for enhancing the compensation

and cannot be guiding factor for determining that what was the prevalent market rate at the relevant time.

The Apex Court has held in a judgment passed in State of Jammu & Kashmir Vs. Mohammad Mateen Wani and Others, , that the sale

instance relating to a small parcel of land cannot be the guiding factor. It is profitable to reproduce relevant portion of the said judgment herein:

Coming to the challenge as regards the enhanced compensation for the land we find that the sale instances relied upon by the claimants can

hardly be treated as comparable instances. The sale instances relate to small parcels of lands not more than 3 to 4 marlas each. Only one sale

instance was sought to be proved by the claimants through the evidence of Mohd. Shaban, who had stated that three marlas of land in the close

vicinity of the acquired land was sold to a co-operative society @ Rs. 33,000/- per kanal. Other sale instances although produced on record but

the same were not proved by the claimants either by examining the vendor or the vendee. As stated earlier these sale instances are of a very

smaller area and, therefore, they cannot be said to be comparable sale instances to determine the market prices of such a big chunk of acquired

land. The other evidence adduced by the claimants is consisted of the oral testimonies of lumbardars and local zamindars. Their oral evidence

could hardly be accepted as a guide for determining the market prices of the acquired land because they were not experts. The net result,

therefore, is that the evidence of the claimants as regards the sale instances cannot be accepted as a measure to determine the market price of the

acquired land....

While going through this judgment, one comes to an inescapable conclusion that test is one or two sale instances of three or four marlas of land

cannot be used as a guiding factor and further their Lordships have also laid down that oral evidence cannot be accepted as guide for determining

the market price of the acquired land.

It is also profitable to reproduce relevant portion of Para 6 of the Apex Court judgment titled Union of India v. Ram Phool reported in :

(2003)10SCC167 herein:

6...It has been held in a catena of decisions of this Court that the sale price in respect of a small bit of transaction would not be the determinative

factor for deciding the market value of a vast stretch of land. As has been stated earlier, the extent of land acquired in the case in hand i.e. 5484

bighas. In that view of the matter, we have no hesitation to come to the conclusion that the High Court has wholly erred in relying upon Exhibit A-1

in determining the market value of the acquired land extending to 5484 bighas. Since the onus is on the claimant to lead evidence on the

determination of market value and if Exibit A-1 is taken out of consideration, then there is no residue of evidence on which the determination made

by the High Court enhancing the compensation awarded by the Reference Court could be sustained. We, therefore, set aside the impugned

judgment of the High Court and affirm the market value as determined by the Reference Court. These appeals are allowed. Cross appeals filed by

the claimants are dismissed.

While going through these judgments, one comes to an inescapable conclusion that the sale of small plot cannot be a guiding factor.

It is the duty of the claimants (appellants) to prove that what was the adequate rate which would have been awarded by the Collector at the

relevant point of time. It is not the duty of the indenting Department to prove that what was the adequate compensation. The appellants have

disputed the adequacy of compensation so the burden was on them. The Apex Court has held in a judgment titled Special Deputy Collector and

another etc. Vs. Kurra Sambasiva Rao and others, etc., as under:

6... It is bounden duty of the Court to evaluate the evidence on the basis of the human conduct, even if no rebuttal evidence is produced by the

Land Acquisition Officer, to assess the market value applying the relevant tests laid down by this Court in bead role of decisions. In Periyar and

Pareekanni Rubbers Ltd. Vs. State of Kerala, , this Court considered the entire case law as on that date, on the principle of determination of

market value and the relevant test laid in that behalf. The burden of proof that the amount awarded by the Land Acquisition Officer/Collector is not

adequate is always on the claimant. The burden is to adduce relevant and material evidence to establish that the acquired lands are capable of

fetching higher market value than the amount awarded by the Land Acquisition Officer/Collector or that the Land Acquisition Officer/Collector

proceeded on a wrong premise or applied a wrong principle of law....

The Apex Court has held in case Union of India v. Ram Phool reported in : (2003)10SCC167 (supra) that the onus is on the claimants.

The claimant is in the position of a plaintiff(s) who has to prove his case. The Apex Court has held in the case titled Chimanlal Hargovinddas

Vs. Special Land Acquisition Officer, Poona and Another, as under:

The following factors, must be etched on the mental screen:

(1)to(3)...

(4) The claimant is in the position of a plaintiff who has to show that the price offered for his land in the award is inadequate on the basis of the

materials produced in the Court. Of course the materials placed and proved by the other side can also be taken into account for this purpose.

...

While applying the test laid down in the aforesaid judgments, I am of the considered view that appellants have failed to discharge the onus.

It is the duty of the Court to see and protect the public interests. The awarding or enhancing the compensation should not be as a bone in

disguise to the claimants.

Keeping in view the above discussion, the appellants have failed to discharge the onus and thereby have failed to prove that the compensation

has been wrongly assessed and awarded.

In the given circumstances, the learned Principal District Judge has rightly decided the Issues 1 and 2.

Viewed thus the impugned judgment merits to be upheld. Accordingly the judgment/award and decree passed by the learned Principal District

Judge, Srinagar is upheld and the appeal is dismissed.

Send down the record along with a copy of this judgment.