State of M.P. vs Maharaja Surendra Singh

R.D. Shukla, J.

The appeal is directed against the order and decree dated 29.7.1983 of III rd Additional District Judge, Jhahua, Alirajpur passed in M C.C. No. 2/82 whereby the respondent has been awarded a compensation of Rs. 1,39,775/- for the agricultural land measuring 55.91 acres at the rate of Rs. 2500/- per acre. Further amount of Rs. 56,190/- on account of houses in Abadi land and Rs. 63420/- for trees stading on the land has also been awarded. The State has filed this appeal challenging the order and award passed by the Reference Court.

The facts giving rise to the case are that the State Government of Madhya Pradesh Revenue Department issued a notification u/s 4 of the Land Acquisition Act (for short ''the Act''), Notification No. 8.8.79.S.I-7/S/Bhopal dated 2.2.1979. The same was published in Government Gazette dated 2.3.1979. The State-Government further issued a notification u/s 6 of the Act vide Notification No. 8-8-79/S-1/7/79 dated 3.5.1979. The same was published in the Gazette on 15.7.1979. Bhumiswami of the land was given notice u/s. 9 (1) (2) of the Act and the notification for the same was done. Nearly 57/87 acres of land belonging to the respondent was acquired and the possession was taken on 18.1.1980. The Collector passed an award fixing the price at the rate of Rs. 1000/- per acre and the compensation for the trees granted to the extent of Rs. 20,037/-.

Dissatisfied with the Award of the Land Acquisition Officer, the respondent made an application for reference of the case to the Civil Court. The same was referred as such. Learned Additional District Judge (Reference Court) enhanced the compensation from Rs. 1,000/- per acre to Rs. 2500/- per acre with minor modification in the compensation granted for the standing trees. Hence this appeal by the State.

Respondent has also filed cross objection assailing the award and further prayed for enhancement specially in the rate of interest.

The contention of learned counsel for the appellant is that the price fixed for the land acquired is very excessive and disproportionately high keeping in view the market price of the similarly situated land. It has further been asserted that compensation awarded for Abadi bhoomi and for trees standing on land is also very high and excessive. The interest awarded has also been challenged.

As against it, learned counsel for the respondents while supporting the compensation awarded has asserted that interest ought to have been allowed from 18.1.1980 as the possession was taken from that very day. It has also been submitted that solarium with enhanced rate and additional amount of 12% is further required to be awarded in this case.

We were taken to the evidence on record. The observations made by the Land Acquisition Officer at page 5 of the Paper Book goes to show that land bearing Khasra No. 83-88 were being cultivated and the crop was being grown. Amajor portion of Khasra No. 115 was used as a polo-ground and a part of it was being cultivated. 0.79 hectares of land is abadi and it had stable and old house. Similarly in land bearing Khasra No. 125 out of areas of 1.663 hectares, 1.777 hectares was abadi and the rest of it was agricultural land, 0:485 out of that land has been acquired and in one part of this land, house is situated which has been taken on rent by irrigation department.

While determining the compensation, the following principles are required to be taken into consideration :

The determination of market value of land with potentialities for urban use is an intricate exercise which calls for collection and collation of diverse economic criteria. The market value of a piece of property, for purposes of Sec. 23 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. The determination of market value is prediction of an economic event, viz., the price outcome of a hypothetical sale, expressed in terms of probabilities. Prices fetched for similar lands with similar advantages and potentialities under bonafide transactions of sale at or about the time of the preliminary notification are the usual, and indeed the best, evidences of market, value. Other methods of valuation are resorted to if the evidence of sale of similar lands is not available.

Reference may be had to a decision reported in Administrator General of West Bengal Vs. Collector, Varanasi, Reference may Shivendranath decision reported in 1994 SCC (1) 564 and 1994 SCC (2) 133. The Supreme Court has held in Smt. Saraswati Devi and others Vs. U.P. Government and another, that the value has to be determined according to use to which land was put on date of modification u/s 4.

P W 2 Shivnarain had produced document A/8 (at page 97 to 99 of paper book) and has further stated that the land purchased by him is nearly 500 meters away from the land under dispute. The land purchased is a plot of the size of 60'' x15'', The same has been purchased on a price of Rs. One thousand. The document is dated 20.12.1980 i.e. subsequent to the date of taking over of the possession of land acquired.

P.W. 6 Abhaysing has stated that the land acquired is adjascent to the hospital of Alirajpur. The land is plane and it has walls on three sides. The other land is slightly away. P.W. 7 Ganesh produced document A/13 and stated that he has purchased a plot 60'' x60'' which is 500 meter away from this land which he has purchased at a price of Rs. 3,000/-. This document A/13 is dated 20.5.1979 i.e. prior to the notification u/s. 6 of the Act but after notification u/s. 4 of Act. Thus 3600 sq.ft of land as purchased by P.W. 7 comes to 8.25 decimal. Thus the rate of land would come to Rs. 36,000/- per acre.

The price of small land cannot be taken as a basis for ascertaining the just compensation. Firstly because it was nearly 500 meters away. Secondly, if the land is divided into plots nearly 50% of the area is required to be left for the purpose of road, drainage, open land and for public institution like school and hospital etc. If deduction of 50% is made, the price would come to Rs. 18,000/- per acre. We do not know, whether the plot purchased by P.W. 7 Ganesh is abutting the road. No cores-examination on the point has been done. If the price is further reduced to 50% the same would come to nearly Rs. 9,000/- per acre.

While determining the price of the land for making payment of the consideration, it should also be examined as to the purchaser of the big area are available. There is no evidence to show that purchasers of such a big area were available. Despite that and with any amount of deduction, the price would not go below Rs. 2500/- per acre, if land purchased by PW 7 is taken to be the basis for calculation of compensation.

P.W. 8 Shri Surendra Singh was examined on commission and has stated in para 12 that the price of the land is Rs. four to five thousand per acre and the compensation at the rate of atleast Rs. four thousand per acre he awarded to him. In such a situation, the price of the plot disclosed by P.W. 7 Ganesh; cannot be accepted as basis for determination of compensation.

P.W. 6 Abhaysingh, the Secretary of Raja Surendrasingh owner of the land acquired, has himself demanded compensation at the rate of Rs. 3,000/- per acre. However, he has demanded separate compensation for trees and the constructions standing thereon. The Reference court has while determining the compensation, has reduced the value by Rs. 500/- per acre and has assessed the value of land at the rate of Rs. 2500/- per acre.

In our considered opinion, learned Addl. District Judge has rightly assessed the valuation and that appears to be proper price of the land and calls for no interference.

Though, the main thrust of the arguments of learned counsel for appellant waa about the rate of land acquired, but he has tried to challenge in a feable voice the compensation awarded for construction standing on one part of the land and for trees thereon.

The learned Reference Court has dealt with this point i.e. compensation of trees, in para 32 of its judgment. The document A/10 punchanama prepared by Tahsiladar has been made basis for determining the compensation of trees. This document has been signed by other witnesses also. According to punchnama A/10, the price of mango tree has been assessed to Rs. 600/- per tree. Learned Reference Court has accepted this valuation and as 104 mango trees were standing on the land acquired, the compensation for the same has been assessed to Rs. 62400/-. The price of tamarind has been assessed to Rs. 100/- per tree and only one tamarind was found standing thereon as such a compensation of Rs. 100/- has been assessed for the same. This price of Mahua tree has been assessed to Rs. 300/- per tree. One tree of mahua was standing thereon as such compensation of Rs. 300/- has been assessed. Similarly for Sisam tree and one Taad tree was also found standing thereon, the price of the same has been assessed as Rs. 300/- per tree. That price comes to Rs. 1500/-, that learned Reference Court has failed to take into account. Thus the total compensation of trees would come to Rs. 62400/- plus 100/- + 300/- + 400/- + 1500/- = 64,700/-

Thus the total price of the trees standing on the land acquired comes of Rs. Sixty four thousand Seven hundred only.

The third point that arise for determination is as to whether the compensation assessed for the pologround of the areas of 1.96 acres Khasra 151 and the construction standing thereon is correct ? The learned Reference Court has awarded Rs. 56,190/- for the same.

The learned Reference Court has dealt with the compensation of polo-ground in para 35 off its judgment and since no compensation for pologround and pavellion was asked for and, therefore, the same was not considered by the Land Acquisition Officer and has not been taken into account by learned Refernece Court also. Counsel for appellant has also not laid stress regarding compensation of pologround and pavellion.

The next point that remains for determination would be as to what would be the compensation for 1.96 acres of land situate in abadi area. Learned Reference court has dealt with the compensation of abadi land in para 20. The land comes to 84360 sq.ft and 1/3rd of the land i.e. 28120 ft has been deducted for road, drainage and open place and a compensation of only 2/3rd has been calculated. Learned Reference Court has accepted the price of abadi land at the rate of Rs. 1/- per sq.ft. As referred in earlier paragraphs the land described in document A/8 of the area of 15'' x60 i.e. 900'' has been purchased by one Shivnarain at the price of Rs. 1000/-. The evidence of Shivnarain has not been challenged and, therefore, that rate has rightly been accepted and a further deduction has been made, as the plot purchased by Shivnarain was very small plot and it was for this reason that the price of the abadi land has been assessed at the rate of Rs. 1/- per sq.ft. The compensation of only 2/3rd land has been awarded. If the area of the whole land is calculated, the compensation awarded would come to Rs. 0.66 Ps per sq.ft. In our opinion as the land was in abadi area and it has a building potential and, therefore, the compensation of Rs. 1/- sq.ft for remaining 2/3rd land or 0.66 Paisa per sq.ft. for whole of the land appears to be correct and justified and calls for no interference. We also affirm the same. Thus the compensation for abadi land would come to Rs. 56918/- which may be rounded to Rs. 56920/-. Hence the total compensation awardable would come to Rs. 1,39,775/- + 64700/- + 56920/- = 261395/-, which may be rounded to Rs. 2,61,400/-.

Learned Counsel for respondent has submitted that since the appeal and the cross-objection was pending, the respondent here would be entitled for a solarium of 30 percentum and a further amount of 12% and thereafter the interest at the rate of 9% and 15%.

Learmne counsel for appellant has vehemently opposed this submission of the respondent on the ground that there Was no appeal by the respondent. He has only filed cross-objection and since there is no appeal filed by the owner of the land, is pending and, therefore, he would not be entitled for a solarium and other amount as demanded.

Section 23 (1) (a) of the Act and Sec. 23 (2) of the Act added by Act No. 68 of 1984, reads as follows.

23 (1) (a) In addition to the market value of the land, as above provided, the Court shall in every case award an amount calculated at the rate of twelve per centum per annum on such market value for the period commencing on and from the date of the publication of the notification u/s. 4, sub sec (1), in respect of such land to the date of the award of the Collector or the date of taking possession of the land, whichever is earlier."

23 (2) In addition to the market value of the land, as above provided the Court shall in every case award a sum of thirty per centum on such market value, in consideration of the compulsory nature of the acquisition.

A transitional provision regarding the same was also made vide Sec. 30 of Amending Act i.e., Act No. 68 of 84. This Amending Act came into force w.e.f. 24.9.84. The Bill was introduced on 30.4.82 and, therefore, if the proceedings were pending either before the L.A.O. or before the Reference Court, between this period i.e. 30.4.82 and 24.9.84, a person would be entitled for an extra amount of 12% and 30 per centum as referred above. In this case, the possession has been taken on 18.1.1980, notification for the same was made on 15.7.79, award of the Land Acquisition Officer was given on 21.7.80 and thereafter a reference was filed by the respondent (here) on 10.9.80 and the same was decided by Reference Court on 29.7.83 and the appeal before this court has been filed on 16.12.83.

The Court here would mean the principal civil court of original jurisdiction unless (appropriate Govt. has appointed as it is hereby empowered to do) Special Judicial Officer within any specified local limits to perform the functions of the Court under this Act. Thus Reference Court would be included in it.

It is evident from the facts stated above that the matter was pending before the court between the period 30.4.82 to 24.9.84. A similar question arose before the Apex Court of this country and it has been answered in Union of India (UOI) and Another Vs. Raghubir Singh (Dead) by Lrs. Etc., as under :-

The appeal to the High Court or the Supreme Court, in which the benefit of the enhanced solarium is to be given, is confined to an appeal against an award of the Collector or of the court rendered between 30.4.82 (date of introduction of bill) and 24.9.84 (date of its passing).

In our opinion, therefore, the respondent owner of the land shall in view of Sec. 23 (2) of the Act shall be entitled for a solarium of 30 per centum over and above the amount of compensation determined above.

In our opinion, the content of learned counsel for respondent as to disallowance of solarium of 30 per centum deserves to be rejected and we hereby reject that contention. Now, so far as the payment of amount u/s. 23 (1) (e) is concerned, in this case possession was taken much before the coming into force of Act No. 68 of 84. In this case possession was taken even before introduction of bill on 30.4.84 and, therefore, the respondent would not be entitled to additional amount of 12% P.A. on market value assessed above.

Reference may be had to cases reported in Union of India (UOI) Vs. B.V. Saroja and Another, ; S.A. Jain College Trust and Managing Society Vs. State of Haryana and Another, , Improvement Trust, Patiala Vs. Land Acquisition Tribunal and Others, . In S. A Jain College case (supra) it was held as under :-

In this case, the proceedings for land acquistion commenced as early as 15.5.68 and the award was made by the Collector on 29.2.1970, and the possession of the land was taken immediately thereafter. All such events happended long before the Land Acquisition (Amedment) Act of 1984. In such cases the claimants are not entitled to the benefit u/s. 23 (1- A) of the Land Acquisition Act, 1894 as amended by Land Acquistion (Amedment) Act (Amedment Act 68 of 1984). This view is fortified by decision of this court in U.O.I. Vs. B.V. Saroja.

The respondent is entitled to an interest on the amount of compensation at the rate of 9% for the first year and 12% thereafter till realisation of the amount.

As a result, the appeal fails. While the cross-objection is sustained. The respondent is entitled to a compensation of Rs. 2,61,400/- and 30 percentum of solarium over the amount of compensation. The respondent shall be entitled to an interest at the rat of 9% for the first year and 12% thereafter till realisation of the amount, Parties shall bear their own costs. Counsel''s fee Rs. 1,000/-.