Rajasthan High Court – Jodhpur
State vs Smt. Sunita & Ors on 5 November, 2009
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S.B. CIVIL MISC. APPEAL NO.772/1999
(State of Rajasthan & Smt. Sunita & Ors.)
Date of order :: 05.11.2009
HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS
Mr.Mukul Singhvi, for the appellant.
Mr.S.Saruparia, for the respondents.
This appeal was filed on 30th September, 1999
against the judgment and decree dated 30th July, 1999
passed by the Additional District Judge No.1, Udaipur
in Civil Misc. Case No.23/1996 (38), whereby the
learned trial court has awarded Rs.67,320/- to the
respondents alongwith interest at the rate of 9% per
annum.
The brief facts of the case are that a piece
of land bearing Khasra No.1485 measuring 0.600 hector
in village Bedwas, district Udaipur was acquired and
the Land Acquisition Officer, Public Works Department,
Circle-I, Udaipur passed an award for Rs.20,647/- on
07th August, 1992 towards compensation.
Being aggrieved by the said award passed by
the Land Acquisition Officer, the respondents preferred
an application under Section 18 of the Rajasthan Land
Acquisition Act before the Land Acquisition Officer
stating that amount of compensation is not sufficient
on various grounds enumerated in the application,
therefore, it was prayed that compensation to the tune
of Rs.3,00,293/- with 18% interest may be granted.
Upon the said application, a reference was presented
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before the District Judge, Udaipur which was
subsequently transferred to the Court of Additional
District Judge No.1, Udaipur for adjudication.
Before Additional District Judge No.1, Udaipur
respondents filed their claim petition and appellant
also filed written statement. Thereafter, issues were
framed and after recording evidence and hearing both
the parties, vide judgment and decree dated 30th July,
1999 the learned Additional District Judge No.1,
Udaipur awarded a total sum of Rs.67,320/- to the
respondents alongwith 9% interest.
In this appeal appellant-State is challenging
the validity of the said judgment and decree passed by
the learned trial court on 30th July, 1999.
It is stated in the appeal that the judgment
and decree passed by the learned trial court is totally
without application of mind and without taking into
consideration the relevant provision of law. Therefore,
the judgment and decree passed by the learned trial
court is liable to be quashed and set aside. Further,
it is contended that learned trial court has committed
an error while taking view that the land falls within
the Abadi area. In fact the land in dispute is an
agricultural land and no claim was presented by the
respondents at the time of acquisition.
In such circumstances, the award was passed on
the basis of location of land, potentiality and land-
use and upon the rate of land which has been soled
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prior to issuance of notice under Section 4 of the Land
Acquisition Act. Hence, the award passed by the learned
trial court is illegal and deserves to be quashed and
set aside.
It is further stated that learned trial court
has failed to look into the entire facts and evidence
adduced by the appellant and illegally enhanced the
amount of compensation treating the said land as Abadi
land though it is agricultural land.
As per appellant the oral evidence of power of
attorney holder has been recorded. It is settled law
that evidence of third person shall not be taken into
consideration for the purpose of adjudication, so also,
it should not be relied upon. It is also submitted
that no independent witness has been produced before
the Court by the respondents and all the witnesses
produced by the respondents are interested witnesses as
they are either land owner or their power of attorney
holder. Therefore, judgment and decree under challenge
deserves to be quashed and set aside.
In para (f) of the ground, it is specifically
stated that no assessment of the property in question
from the side of the respondents has been produced
before the Court, therefore, in absence of any
assessment from any private or authorised person, no
finding regarding quantum of compensation can be given
by the learned trial court. The learned trial court
has committed an error while enhancing compensation
merely on the basis of presumption and assumption.
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Further, it is submitted that interest at the rate of
9% has been awarded without cogent evidence and
application of mind. The land has been acquired for
public purpose i.e. for construction of road and for
such pious work, therefore, no interest was to be
awarded by the trial court. In this view of the
matter, it is prayed that judgment under challenge may
kindly be quashed.
Per contra learned counsel appearing on behalf
of respondents submits that no interference is required
to be made in the judgment under challenge because
learned trial court has considered the entire evidence
in right perspective. Admittedly, the land in question
was acquired by the appellant-department for the
purpose of construction of road, therefore, at the time
of deciding the quantum of compensation, it was to be
ascertained whether the area in which the land is
situated is potential or not. It s further submitted
in para 9 of the award the learned trial court has
discussed the entire evidence and gave finding that the
land in question is potential land because it is
situated in locality where residential colony of the
Government as well as industrial area is situated.
In this view of the matter, the finding
arrived at by the learned trial court does not require
any interference because the said finding is based upon
cogent evidence and after taking into consideration the
entire evidence of the locality of the area where land
is situated.
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Learned counsel for the appellant has invited
attention of this Court towards the judgment reported
in AIR 2002 SCW 4644, in which, the Hon'ble Apex Court
has held that the land being acquired in developed
area, having potential of construction of residential
and commercial buildings, not more than 20% ought to
have been deducted towards development. Therefore, the
deduction of 35% towards development is not justified.
I have considered the entire evidence and
pleadings of the case, so also, the finding arrived at
by the trial court.
In my opinion, admittedly the land was
acquired for the purpose of construction of road.
Further, as per finding of learned trial court, the
land is situated in the area where residential colony
and industrial area is situated in Udaipur city. But
learned trial court while accepting the cost of other
land has assessed the compensation and gave cogent
finding. Therefore, in view of the fact that land is
situated in urban area, so also, there is clear cut
finding that land is situated nearby area of industries
and residential colony, as such, the learned Additional
District Judge No.1, Udaipur has not committed any
error while enhancing the compensation for the land in
question from Rs.20,647/- to Rs.67,320/-, so also,
while considering the fact that compensation was not
paid in time, granted interest at the rate of 9% per
annum, in which there is no question to interfere with
the finding given by the trial court, which is, just
and proper.
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In this view of the matter, there is no force
in this appeal. Hence, this misc. appeal is dismissed.
(GOPAL KRISHAN VYAS), J.
A.K. Chouhan/-