ORDER
Sheema Ali Khan, J.
Page 1707
1. This appeal has been filed by the Land holders challenging the order of the Special Land Acquisition Judge, Chapra which passed in Land Acquisition Case No. 60 of 1970 passed on 29.1.1980.
2. The Collector, Chapra had fixed the compensation for the land of the appellants at Rs. 9670.59. He further awarded at Rs. 1608.00 for the trees standing on the land and at Rs. 1391.79 as additional compensation.
3. The two issues which arise in this case are firstly whether the compensation granted by the Land Acquisition Judge is proper or whether there should be an increase in the amount of compensation granted by the Court below? The second question that it has been raised in this appeal is whether the appellants are entitled to 12% on the market value of the land as per Section 23 1-A of the Land Acquisition Act and 30% of solatium as per the amendment introduced by the Land Acquisition (Amendment) Act 1984.
4. The land which has been acquired as been described as follows:
Nature of Land
Acres
Decimals
Converted into Katha & Dhoor
Bhith
2
31
70
18
Orchard
1
38
41
18
Parti
48
15
07
Gadha
22
06
15
Total Land
4
89
134
12
5. The purpose for which the Land is acquired described under Section 6(1) of the Act as follows:
Acquisition of Land for the construction of Industrial Training Institute, Marhowarah in the District of Saran
6. It may noted that the very purpose for which the land is acquired indicates the value and nature of land, which will be substantiated by evidence and documents as I proceed with this judgment.
Page 1708
7. In order to substantiate their case the appellants submit that the compensation awarded by the Land Acquisition Judge is below the market value. The appellants have relied on Exhibit-1 and Exhibit-2 as well as on the evidence led by the appellants in the Court below to bring home their submissions.
8. Exhibit-1 is the sale deed dated 5.6.1967 by which an area of 7 Dhur of land have been sold at Rs. 700/-. Calculating the cost of land as per Exhibit-1 it would amount to Rs. 2000/- per Katha. Exhibit- 2 is the sale deed dated 18.10.1967 with respect to 1 Katha 25 dhoors which has been sold for a sum of Rs. 1500/-. Apart from these documents the appellants have also pleaded at paragraph No. 5 of their application before the Land Acquisition Judge at Chapra that the market selling rate of the lands in the area which have been notified for acquisition is not less than Rs. 1500/- per Katha. It is further claimed that the price of one Mango tree is Rs. 400/- each and the price of other trees is Rs. 200/- each. The total amount claimed by the appellants is approximately Rs. 1,77,000/-besides cost of the trees which are on the acquired land.
9. Learned court below has rejected the Exhibit-1 on the ground that the land described in the sale deed shows that it is homestead land and not similar to the lands of which have been acquired. Exhibit-2 has similarly been rejected, on the ground that it is sale deed which is executed six months prior to the notification of the acquisition and as such it cannot form the basis of fixing the quantum of compensation.
10. The reasoning of the Court below for rejecting the sale deeds is not at all justified. While deciding the market value of the lands the relevant factors which have evolved by way of case laws on the subject are suitability of the land, the area of the land, the size and shape of the lands, and the Access and frontage of the lands sought to be acquired.
11. It is true that the sale deed Exhibit-I is as with respect to the homestead land, however, it is equally true that the Government has found the acquired lands fit for construction of building for the purpose of opening a Training Institute. Therefore, it cannot be said that the lands acquired and the lands of Exhibits-I and II (Sale deeds) are dissimilar. It has been vehemently argued that part of the acquired lands are ‘Bhith’ land and ‘Gadha’, and as such, their value would be less than the ‘Parti’ land and ‘Orchard’. ‘Parti’ land means lands which have remained uncultivated for a long time.
12. The glossary for judicial and revenue terms defines ‘Bhith’ as ground either “naturally” or “artificially,” raised and fit for various purposes as for the site of the house or for cultivation.
13. As such, it is clear that atleast 65 Kathas of the land which are ‘Bhith’ land can be utilized either for cultivation or for the purpose of construction of any type, including construction of residential houses. Thus the Court below is absolutely wrong in holding that the lands of appellants are dissimilar to the lands mentioned in the sale deed.
14. Now, it would be relevant to refer to the evidence led on behalf of the appellants witnesses with respect to the nature of the land.
15. It has been stated by A.W.1 and A.W.2 that the acquired lands are situated just beside Technical Institute and opposite to the Block Development Office. It is also Page 1709 asserted by the appellants witnesses that the lands are just and near the Railway Station, the Electricity Office and shopping area. It is further asserted that the lands are situated on Chapra-Siwan Road and on the basis of these evidences, it has been submitted by the learned Counsel appearing on behalf of the appellants that the lands which are under acquisition have a prime location can be used for cultivation or for development by building, market or residential house or any other type of building.
16. It is well settled that the lands near and about the Block Development Office and the Office of other Government Institution are valuable piece of land and there can be no doubt about the fact that the lands are situated in such a prime area would definitely fetch higher value than land situated at any part of the village. The court below has rejected the evidence without assigning any reason nor has the State been able to dismantle the evidence of the witnesses in the cross-examination or by leading evidence controverting what has been stated by the appellants witnesses.
17. I find that the reasons given for rejecting the Exhibits-1 and 2 cannot under any such circumstances be justified in a case which is supported and backed up not only by documentary evidence but by uncontroverted oral evidence. The court below has relied heavily on Exhibit-A, which is a sale deed produced on behalf of State, it appears to be a sale which must be the lowest in the area. It relates to two plots of land. Plot No. 3253 and Plot No. 2539. The total land was sold for Rs. 300/-. On perusal of the Map, which is Exhibit-3, it appears that plot No. 2539 is situated far from the land which has been acquired. It does not have prime location and is a narrow strip of land. Similarly plot No. 3253 is also a long strip of land. Both the plots have hardly any width and, therefore, it appears that since they are long strip of land they have been sold at a low rate besides plot No. 3253 is not adjacent to the main area of the village. It is not situated on the Siwan – Chapra Road and, therefore, does not have direct acess to the main road and thus the value of the land situated in such area has to differ with respect to the valuation from the lands which were under acquisition.
18. Learned Counsel for the appellants submits that the valuation of land is a very low and as observed, it appears that it could have been a distress sale and or a sale in which the actual cost of lands has not been disclosed to save the cost of non-judicial stamp paper for the purpose of execution of sale deed. It is submitted that there can not be such great difference between lands sold in July 1966 and June 1967.
19. I agree with the reasoning of the counsel appearing on behalf of the appellants inasmuch as the price of lands of Exhibit-A bound to differ with the acquired lands if not for any other reason, then for the reason that the lands which have been acquired are situated at a prime location and are not comparable to the lands which are subject matter of Exhibit-A.
20. The Court below has also relied upon a rate report in granting compensation for the land. The rate report is not proved by the respondents, and as such, I find what that the Court below could not have relied on such a report.
21. The Court below has awarded a compensation of Rs. 3150 for ‘Bhith’ and ‘Dhanhar’ land which is about 65 Katha. This would hardly amount to Rs. 45/- per Katha. The court below as per the rate report has given Rs. 703/- for the ‘Parti’ land which is about 16 Katha and Rs. 104/- for the ‘Gadha’ and Rs. 452/- for the Orchard. This calculation as per the rate report is completely erroneous and can not be accepted by this court. There can be no justification for fixing the rates as have been done in this case.
Page 1710
22. The question then before this court is that what would be appropriate compensation to be granted to the appellants as I have rejected the evidence that led by the State and I find that the evidence of the appellants regarding the location of the land and the sale deed filed by the appellants appear to be more or less lands in consonance with the rate of land awarded to the land situated in prime location. The appellants have claimed Rs. 1500/- per Katha and the sale deeds shows that the lands have been sold in the year 1967 for Rs. 2000/- and Rs. 1250/- per Katha.
23. Considering the entire nature of land, I think it would be fair and just to fix the compensation of land measuring 135 Katha equal 89 decimals at the rate of Rs. 1250/- per Katha especially considering the purpose for which the land was acquired was for construction of the Industrial Training Institute at Madhaura in the district of Saran indicates that the lands are situated in a prime location having direct acess to the Main Road and wide frontage which is indicated by the Map produced by the respondent State in the Court below.
24. Besides this, I find that the Court below has granted Rs. 1608/- as compensation for trees.
25. On going through the averments made in the reference application and evidences on the record the applicants have led evidence to show that there were 50 trees on the portion of the land which has been described as an ‘Orchard’ measuring 1.3 Acres.
26. The evidence of the appellants has not been considered by the Land Acquisition Judge.
27. On going through the evidence I find that A.W.1 has stated that there are 50 trees on the land and has claimed Rs. 400/- per tree. A.W.2 has stated that there are mango trees and the value of the tree is Rs. 400/- per tree. A.W.3 has stated that there are 40 to 50 trees on the appellants land. He has estimated the cost of each trees to be worth Rs. 400/-. As against the evidence of the appellants the State has not led any evidence or produced any documents such as schedule of trees or documents to show that a spot verification was made by the State to ascertain the number of trees found on the land which have been described as an ‘Orchard’ by the State in its publication under Section 6(1) of the Act. The Court below has rejected the evidence of the appellants by saying that no documentary evidence has been produced by the appellants to support their contentions with respect to the value of the trees. I find that the reasoning of court below is erroneous. There can no justification for rejecting the evidence of the appellants in view of the fact that the State has made no effort to lead evidence on this aspect. As such I think it would be justifiable that the appellants be awarded a compensation of Rs. 200/- per tree, which would amount to Rs. 8,000/- treating the number of trees to be Rs. 40/- in number on the basis of evidence led by the appellants.
28. The second issue which has been raised by the counsel for the appellants which has to be decided by the Court whether the appellants would be entitled to interest or solatium as provided under the amended Section of 23(1), 23(2) and 28 of the Act.
29. The Amended Act known as the Land Acquisition Act of 1984 reads as follows:
30. Transitional provisions- (1) The provisions of Sub-section (1-A) of Section 23 of the Principal Act, as inserted by Clause (a) of Section 15 of this Act, shall apply, and shall be deemed to have applied, also to, and in relation to,- Page 1711 (a) every proceeding for the acquisition of any land under the principal Act pending on the 30th day of April, 1982 (the date of introduction of the Land Acquisition (Amendment) Bill, 1982, in the House of the People), in which no award has been made by the Collector before that date; (b) every proceeding for the acquisition of any land under the principal Act commenced after that date, whether or not an award has been made by the Collector before the date of commencement of this Act.
(2) The provisions of Sub-section (2) of Section 23 and Section 28 of the principal Act, as amended by Clause (b) of Section 15 and Section 18 of this Act, respectively, shall apply and shall be deemed to have applied, also to, and in relation to, any award made by the Collector or Court or to any order passed by the High Court or Supreme Court in appeal against such award under the provisions of the Principal Act, after the 30th day of April, 1982 (the date of introduction of the Land Acquisition (Amendment) Bill, 1982, in the House of the People) and before the commencement of this Act.
30. This provision has been interpreted in the case Union of India v. Raghubir Singh , wherein it was held that the benefit of enhanced solatium would apply only in cases where the award by the Collector or Court is made between 30.4.82 to 24.9.84 (as also in appeals against such award pending before the High Court or this court whether rendered before 24.9.84 or after that date). The decision was that the Apex Court rules out the applicability of the benefit of the amended rules to all pending proceedings. The Supreme Court, however, widened the restricted interpretation given in Raghubir Singh’s case (supra) in the case of Krishnaswami Sundra Paripoornan reported in 1995 S.C. page 1012 and held that provision of Section 23(1-A) of the Principal Act would mean that the obligation to pay additional amount in respect of proceeding initiated before the date of commencement of the Amending Act is confined to matters covered by Clauses (a) and (b) of Sub Section 30(1) of the Amending Act. Similarly the Supreme Court also held that Section 23(2) and Section 28 would be applicable where the proceedings were pending on 30.4.82 (the date on which amending bill was introduced) or filed subsequent to that date, whether before the Collector or before the Land Acquisition Judge, or High Court or Supreme Court.
31. The Learned Counsel appearing on behalf of the appellants has placed reliance in Indrajeet Singh v. The State of Bihar reported in 2008 (1) B.B.C.J. page 203. It would be relevant to highlight a few facts of the aforesaid case. The Notification in this case for acquisition of land was issued on 8.12.80 and the reference was disposed of on 3.9.84 and thus the Learned Judge relying on the decision of Krishnaswami Sundra Paripoornan’s case (supra) has granted solatium at the enhanced rate as per the amending act.
32. In this case, admittedly the reference was made before the cut-off date as per the amending act, and as such, the appellants would not be entitled to enhance rate of interest or solatium as per the amendments introduced in the Land Acquisition Act. However, the appellants would be entitled to 15 per centum solatium on the market value of the land in consideration of the compulsory nature of the acquisition. The Respondents are also directed to pay interest on excess compensation granted by this Court at the rate of 6 per centum per annum from the date on which the Collector took possession of the land to the date of payment of such excess into Page 1712 court. It is made clear that the relief has been granted as per the provisions of Section 23(2) and 28 of the Land Acquisition Act before the amendments of the aforesaid.
33. The appeal is thus allowed and the award granted by the Collector and the order dated 29.1.1980 passed in Land Acquisition Case No. 60 of 1970 is set aside.