Full Judgment Text
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CASE NO.:
Appeal (civil) 2504 of 1999
PETITIONER:
Hans Raj Sharma (Dead) by Lrs.
RESPONDENT:
Collector Land Acquisition,Tehsil & District Doda
DATE OF JUDGMENT: 10/12/2004
BENCH:
Shivaraj V. Patil & (B.N. Srikrishna
JUDGMENT:
J U D G M E N T
Srikrishna, J.
The appellant whose land was acquired is aggrieved by the
dismissal of his claim for increased compensation by the Division
Bench of the High Court.
The appellant owned land measuring 137 Kanals and 19 marlas
in Khasra No.804 (77 Kanals and 7 marlas) and Khasra No.805 (60
Kanals and 12 marlas) situated in Barshalla Tehsil, Doda (Jammu) in
the State of Jammu & Kashmir. This land was acquired by a
Notification under section 4 of the Land Acquisition Act, 1894
(hereinafter referred to as ’the Act’) issued by the State Government
for the purpose of establishing a base camp of Sheep Breeding Farm,
Thathri. The declaration under section 6 of the Act and a direction
under section 7 of the Act were issued on 10.12.1976 and possession
of the land was taken on 16.1.1977. The petitioner claimed
compensation at the rate of Rs.12,000/- per Kanal for the land and
compensation for trees separately. The land acquisition collector
made an award in respect of the land bearing Khasra nos. 804 and
805 and fixed compensation for the land at the rate of Rs.800 per
Kanal for land in Khasra no. 804 and Rs.250/- per Kanal for land in
Khasra no.805. He also awarded certain compensation for trees on
the land. The petitioner accepted it under protest and sought a
reference for increase in the compensation. On 27.4.1985 the
petitioner made a written application before the land acquisition
collector claiming that the market value of the land was not less than
Rs.12,000/- per Kanal. He also specifically claimed that there were
350 trees standing on that land and claimed increased compensation in
respect of the said trees also.
Upon a reference under Section 18, the reference court after
recording evidence came to the conclusion that the comparable
instances of sale cited by the appellant were in respect of very small
pieces of land while the acquired land was a big chunk measuring
about 137 Kanals. Consequently, the reference court was of the view
that the instances cited could not be taken as comparable instances of
sale of land. The reference court assessed the market value at Rs.800/-
per Kanal in respect of land in Khasra no. 804 and increased the
compensation only in respect of Khasra no.805 from Rs.250/- per
Kanal to Rs.720/- per Kanal. The reference court also directed 4% per
annum interest to be paid.
Being aggrieved by the decision of the reference court, the
petitioner moved an appeal under section 54 of the Act before the
High Court. The learned single Judge enhanced the compensation for
land in Khasra no. 804 to Rs.1000/- per Kanal and the compensation
for land in Khasra no.805 to Rs.900/- per Kanal. The single Judge
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also increased the rate of interest to 6% per annum instead of 4% as
directed by the District Judge. The appellant still being dissatisfied
moved a Letters Patent Appeal before the High Court claiming
compensation @ Rs.8000/- per Kanal in respect of land and
Rs.75000/- for trees. The appeal was dismissed by the High Court and
thus the appellant is in appeal before this Court.
The learned counsel for the appellant urged that the High Court
and the District Judge have completely ignored the evidence, and that
their judgments were perverse and liable to be interfered with. He
contended that after the year 1971 there was no sale of land in the area
concerned because of the coming into operation of the Agrarian
Reforms Act, 1976. Consequently, there were no instances of
registered sale deeds, though sales unofficially took place during the
said period. Some of such sale deeds were actually registered after
1981.
In respect of one such sale deed, it was claimed by witness
Girdhari Lal that he had sold three marlas of land in the year 1975 at
the rate of Rs.500/- per marla, though the sale deed was registered in
1981 because of ban on sale of land in the interregnum. Another
witness Tej Ram stated that he had also purchased land @ Rs.500
per marla in the year 1975. Witness Om Prakash, Assistant Engineer,
NHIS sub Division Thethri stated in his evidence that 1 Kanal 3
marlas was acquired from one Shukar Din for Rs.15,870/- and the
land was 1-1/4 kilometer away from Thathri on the National Highway.
This rate comes to Rs.14,000 per Kanal. Patwari Ghandarb Singh has
stated that the average market rate was about Rs.500/- per marla but
was not able to cite an instance where any equivalent chunk of land
was sold. Daya Krishan has stated that he had sold land measuring 4-
1/2 marlas at the rate of Rs.12,000/- per Kanal.
The learned District Judge was of the opinion that the instances
cited were of small pieces of land and it was not safe to rely on them
because the land acquired was a large chunk of land admeasuring
about 137 Kanals and 19 marlas.
The learned single judge took the view that it was not the fault
of the claimant that there was no sale of big chunk of land during the
relevant period. He further was of the view that Rs.800/- per Kanal
was an unreasonably low amount of compensation as it would not
even fetch a quintal of wheat . According to the learned single Judge,
though comparable instances of sale of land were not available, the
Reference Court should have gone on the average yield, in which
event the market value of the land would have been fixed at a much
higher price. Although the Reference Court had rejected an instance
of sale of land which is about 400 to 500 yards away from the land
acquired across the river @ Rs.1000/- per Kanal on the ground that it
was across the river and adjacent to the National Highway, the single
Judge was of the view that since the said piece of land had been
acquired by the State Government itself, and inasmuch as the acquired
land was hardly 400-500 yards away from the land for which
Rs.1000/- per Kanal has been paid as compensation, no compensation
less than Rs.1,000/- would be fair and just. The learned single Judge
took the view that there was no need to go into other evidence in the
light of the admission made by the State authorities that compensation
of Rs.1000 has been paid for the land which was only 400-500 yards
away from the land acquired. Since some of the land was partially
earmarked and the other was not earmarked, the learned single Judge
was of the view that the land in Khasra No.804 would have market
value of Rs.1000 per Kanal and the market value in respect of land in
Khasra No.805 should be fixed at Rs.900/- per Kanal. The learned
single Judge awarded interest @ 6% per annum but made no reference
whatsoever to the compensation in respect of the trees.
The Division Bench confirmed the judgment of the learned
single Judge in respect of the compensation and interest. It also
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rejected the claim in respect of compensation for trees on the ground
that the judgment of the single Judge did not mention anything about
compensation for trees which suggested that the said claim has not
been argued before the single Judge. The Division Bench was of the
view that the appropriate course would have been to approach the
single Judge and draw his attention to the omission and it was not
open to the Division Bench in appeal to deal with the question for the
first time. In this view of the matter the Division Bench dismissed the
appeal.
Though the learned counsel for the appellant cited a number of
judgments, it appears to us that it is unnecessary to burden the record
by reference to all the judgments. It would suffice to refer to two
recent judgments which have taken notice of all the earlier judgments.
In Kasturi and others v. State of Haryana (2003) 1 SCC 354 a
Division Bench of this Court to which one of us (Shivaraj V. Patil,J.)
was a party, surveyed the authorities on the point and came to the
conclusion that generally instances of sale of small tracks of land
could not form acceptable basis for determining the market value of
large tracks of land, unless suitable deduction was made in respect of
the developmental charges and land to be set apart. However, it was
pointed out that the nature of the land acquired would be
determinative of the issue as to how much of deductions are to be
made in respect of developmental charges and other related expenses.
This would of course depend on the nature of the land, its topography
and special features, if any, and the state of its development so as to
make it suitable for being adapted for immediate use.
In Ravinder Narain and another v. Union of India (2003) 4 SCC
481 it was held that where a large chunk of land is the subject-matter
of acquisition, the rate at which small plots are sold cannot be said to
be a safe criterion. Nevertheless, the Court was of the view "it cannot,
however, be laid down as an absolute proposition that the rates fixed
for the small plots cannot be the basis for fixation of the rate. For
example, where there is no other material, it may, in appropriate
cases, be open to the adjudicating court to make comparison of the
prices paid for small plots of land. However, in such cases necessary
deductions/adjustments have to be made while determining the
prices". It was recognized that although fixing of the market
value involves a certain amount of intelligent guess work on the part
of the court, the element of speculation could be reduced to minimum
if the following principles are kept in mind with reference to
comparable sales:
(i) The sale is within a reasonable time of the date of
notification under Section 4(1);
(ii) It should be a bona fide transaction ;
(iii) It should be of the land acquired or of the land adjacent
to the land acquired; and
(iv) it should possess similar advantages.
The Division Bench of the High Court was of the view that although
instances of sale of smaller chunks of land could not be always relied upon,
there was no reason why the instance of acquisition by the State
Government within a distance of about 500 yards from the present land for
the purpose of setting up Sheep Breeding Farm could not be considered.
In the instant case the land was situated across the river on Thethri on the
right side and its market value was fixed at Rs.1000 per kanal. The High
Court was, therefore, justified in taking this as reasonable comparable
instance of sale and fixing the market value of the acquired land based
thereupon.
Turning to the other question as to the valuation of trees, it appears
that there has been an omission on the part of the Reference Court in
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rejecting the claim on the ground that there was no specific reference
made. It must be remembered that the Reference made under Section 18
was for determination of the amount of compensation payable to the
appellant for the "land" acquired. The expression ’land’ as defined in
Section 3(a) of the Act is inclusive of benefits to arise out of the land and
things attached to the earth or permanently fastened to anything attached to
the earth. As a matter of fact, the land acquisition officer had worked out
the compensation for 261 trees in Khasra No.804 determined as
Rs.17,315/- and the cost of 96 trees in Khasra No.805 determined as
Rs.6207/-.
Issue no.2 raised by the Reference Court was "whether the value of
trees worth Rs.300/- per tree, has not been included in the award". While
answering this issue, the Reference Court has taken the view that the
Reference Court has no jurisdiction to determine the controversy as it has
not been referred by the Collector. This, in our view, is erroneous. The
Reference Court ought to have adjudicated the claim of the appellant for
higher compensation in respect of trees. On account of the unduly
restrictive view taken of its own jurisdiction, the Reference Court fell into
error. The single Judge and the Division Bench also fell into the same
error in totally rejecting this claim as beyond jurisdiction.
In our opinion, the appellant is entitled to have his claim in respect
of the trees on the land acquired adjudicated by the Reference Court.
In the result, we uphold the determination of market value of land in
Khasra No.804 at Rs.1000/- per Kanal and in respect of land falling in
Khasra No.805 at Rs.900/- per Kanal, as determined by the High Court.
The Reference is remitted to the District Judge, Doda only for the purpose
of adjudicating the claim for higher compensation in respect of trees
standing on the acquired land.
The appeal is accordingly partly allowed with no order as to costs.