The State of Himachal Pradesh Vs. Daulat Ram Attri - Court Judgment

V.D. Misra, C.J.

1. This judgment will dispose of R. F, As. Nos. 451 to 459 of 1980 since these arise out of a common judgment,

2. The appeals are directed against the judgment of Shri C. S. Sauhta, Land Acquisition Court (District Judge Solan and Sirmur Districts at Nahanj --ho by a common judgment enhanced the compensation awarded to the claimants in respect of the acquired land.

3. By a motification dated 16th February, 1974 issued under Section 4 (1) of the Land Acquisition Act (hereinafter rei'erred to as the Act), land measuring 206 bighas 1'5 biswas, situated in village Mantaru Wala, Tehsil Paonta Sahib, was acquired for the purpose of timber depot. Notification under Section 6 of the Act was subsequently issued on 17th June, 1974.

4. The Land Acquisition Collector came to the conclusion that the acquired land was of four categories. These were : (1) Obar Aval, (2) Obar II, (3) Banjar Kadim, and (4) Gairmumkin Abadi. For the first category Rs. 3000/- per bigha, for the second category Rs. 2000/- per bigha. for the third category Rs. 550/-per bigha, and for the fourth category Rs. 3000/- per bigha were awarded. The claimants being dissatisfied asked for a reference under Section 18 of the Act which was duly made to the District Judge.

5. All the references were consolidated by the District Judge. Though an issue regarding the classification of the acquired property was settled, it was given up by the parties who only pressed the following issue :

'Whether the acquired property has been assessed adequately and compensation awarded is low ?'

6. After recording the evidence produced by the parties, the District Judge proceeded to treat the whole of the acquired lands as Obar Aval and enhanced the compensation to Rs. 10,000/- per bigha. The State has challenged the award by these appeals.

7. We may straightway record that at the conclusion of the hearing we were of the opinion that it is a fit case where the cases should be remanded for further evidence and the respondents had no objection.

8. Before we refer to the merits we may notice the objection of the respondents. It is contended that all the appeals are barred by limitation. This objection is based on the contention that the certificate of the Copying Agency showing the date of the copies being ready for delivery is not correct and has been manipulated.

9. Certain relevant dates may now be noticed. The impugned judgment is dated 29th April, 1980. Application for copies was made on 5th July, 1980. According to the certificate the date of preparation of the copies is 25th October, 1980 and the date of delivery is 27th October, 1980. Now if these dates are correct, it is conceded by the respondents that the appeals are within limitation. But the respondents have placed on record a certified copy of a notice dated 5/6th September, 1980 having been issued by the Copying Agency to the Deputy Commissioner informing him that the copies were ready for delivery and they should be collected forthwith (Annexure E in R.F.A. No. 456 of 1980). Certified copies of the entries of the Copying Agency register have also been placed on record. One is Annexure R2 in R.F.A. No. 457 of 1980. There is an entry in the column of 'No. of copies required' of notice having been issued on 5th September, 1980 in respect of the copies being ready. Now this copy was prepared on 1st January, 1981 and delivered on 2nd January, 1981. But another copy of the same register relating to this relevant entry, which has been placed on record by the respondents, is Annexura D in R.F.A. No. 45f> of 1980. The relevant column does not show any such entry. This copy was applied for on 28th November, 1980 and was delivered on 26th December, 1980. whether the entry in question was there on record and the Copying Agency has made a mistake in not noting it down in Annexure E, as suggested by the respondents, or these entries have been made between 26th December, 1980 and 1st January, 1981 is at the moment a mystery. However, we have to presume the copies as correct because they are certified to be true copies.

10. Another fact at this stage may be noticed. When the appeals came up for admission before this Court on 22nd December, 1980, learned counsel for the respondents were present and they opposed the admission on the ground that the appeals were barred by limitation. Since ex facie all the appeals were within limitation they were duly admitted. However, the application of the State for the suspension of the operation of the judgment of the District Judge, was adjourned to 30th December, 1980. The matter was heard by the Court on 31st December, 1980. On that day the learned counsel for the respondents filed the certified copies of three letters as well as two copies of entries of the register maintained by the Copying Agency. This was done to show that the appeals were barred by limitation. An application was also moved on that day praying that the appeals be dismissed as barred by limitation. The matter was thereafter adjourned to 31st March, 1981 tor final hearing of the appeals.

11. The State has filed an affidavit of Shri G. S. Dod, Assistant Conservator of Forests. Legal Cell, Simla, who had gone to Nahan to make inquiries from the office of the Deputy Commissioner, Nahan, about the alleged letter dated 5/fith September, 1980 (Annexure E in R.F.A. No. 456 of 1980). This letter was admittedly received on 10th September, 1980 in that office but was diarised on 24th September, 1980. It was marked and delivered to the Copying Agency Branch on 18th October, 1980. The reason for this delay is stated to be the strike of the Non-Gazetted Officers from 5th September to 13th October, 1980. It is stated on oath that this is the only solitary occasion when the Copying Agency of the District & Sessions Court wrote a letter intimating about the copies being ready for delivery. It is further stated that when the deponent met the Deputy Commissioner, the latter informed him that the relevant file containing the letter is missing from his office and the matter has been reported to the police.

12. It is suggested that because of the huge compensation awarded by the District Judge, undue interest was taken by the claimants to ensure that the appeals are not decided on merits and are dismissed on the ground of limitation: This contention is based on the fact that the certificate of the Copying Agency shows that the copies were ready for delivery on 25th October, 1980 and, if that was so, the letter (Annexure E) written by the Copying Agency to the Deputy Commissioner was a false one. For the purpose of these appeals we have to accept the certificate of the Copying Agency in respect of the copies filed by the appellants with the appeals. We say so because of the apparent contradiction of the entries in the register which ex facie show that the relevant entry regarding the notice being sent to the Deputy Commissioner has come into existence only when the questions were being argued before us on 31st December. 1980. Moreover, even if we assume that the date of preparation of the copies for delivery as shown in the certificate is not correct, we are inclined to condone the delay in the circumstances of this case. Admittedly there was w despread strike by the Non-Gazetted Officers of this State between 5th Septemtber to 13th October. 1980. Various offices including those of the Deputy Commissioners as well as majority of subordinate courts were not functioning properly because of the strike. The conditions prevailing in the offices of the State! were indeed abnormal. Though the strike was called off on 13th October, 1980, it took some time before the employees came back to serve and normalcy returned. It is true that Shri Dod has no personal knowledge about what the Deputy Commissioner told him and it would have been much better if the Deputy Commissioner himself would have filed the affidavit but because of the view we have taken up of the whole matter, we will leave the matter at that.

13. In R.F.A. No. 458 of 1980, State v. Niajo, there is an application by the State under Section 5 of the Limitation Act for condonation of the delay. The State has explained in detail the reasons why the appeal could not be filed earlier. Mainly it was the procrastination of the District Attorney and others who were concerned with processing the matter and taking a decision for filing the appeals. Apparently this case seems to have generated more interest for various oblique reasons of various officials. We would, therefore, condone the delay for this appeal also.

14. Now reverting to the facts of the case, admittedly there is no evidence on record with regard to the classification of the acquired land. No evidence was produced since the issue about it was given up. But the judgment of the learned District Judge does not state any fact or give any reason why the learned Dis-trict Judge came to the conclusion that all the lands were of the same quality. While discussing the effect of Ex. PA (to which we will presently revert), an instance of sale, the learned Judge says:

'I am only left with the choice of considering Ex. PA for the purpose of assessment of the land acquired in the light of the evidence on record. I hold that the acquired land in all the petitions is of one and the same quality i.e. OBAR AVAL and to be considered as such for the purpose of assessment.'

The State is absolutely justified in assailing this conclusion which is based onno evidence and for which no reason hasbeen given.

15. Now Ex. PA relates to the sale of 3 bighas of land falling in village Gond-pur for Rs. 30,000. The sale deed was registered on 29th April, 1974, that is, after two months and 13 days of the notification issued under Section 4 (1) of the Act, The land under this sale is said to be situated about a furlong away from the acquired land and to that extent the sale was a relevant instance. However, the sale deed shows that only a sum of Rupees 3,000 was paid before the Registrar at the time of the registration of the sale deed. The rest of the sale price amounting to Rs. 27,000 was stated to have been paid earlier. For proving this sale Onkar Singh (P.W. 1), the seller, was produced by the claimants. He is a Municipal Commissioner in Paonta Municipal Committee. He gave no reason for selling his land. It is true that the cross-examination of this witness as well as of other witnesses produced by the claimants leaves much to be desired. But then the claimants also did not ask many relevant questions from their witnesses. It has to be remembered that the claimants in a reference under Section 18 of the Act are in the position of plaintiffs. The onus of proving the issue is on them. It was for them to prove that the transaction in question was genuine and bona fide. They were also required to prove that Rs. 30,000 in fact were paid. For that purpose it was not enough to produce the seller. It was necessary to examine the purchaser also. The purchaser had to show that he was in a position to pay Rs. 30,000 in cash. This was specially so because a very insignificant amount of Rs. 3,000 was paid before the Registrar which was indeed very unusual.

16, The learned District Judge fell into a serious error in not looking into all the circumstances in order to appreciate whether the sale was genuine and bona fide. Indeed there is no discussion in the judgment. He has started with the presumption that it is genuine. Another serious error made by him is that he paid no attention to the fact that the sale in question was executed after notification under Section 4 (1) of the Act had been issued. The judgment reveals that the learned Judge was under the impression that as long as an instance of sale relates to a period before the award is announced, it is relevant. He had also gone on to accept the proof of the sale referred to in , the award given by the Land Acquisition Collector without realising that no evidence was produced by the parties in respect of that sale before him. The confusion is apparent from the following sentence in the judgment:

'So taking the less average proved by Ex. PA which is a sale prior to the acquisition of the land in dispute, I assess the market value of the land acquired at Rs. 10,000 per bigha. The entire land will be treated as 'OBAR AVAL'.'

17. The function of the Court in awarding the compensation has since long been settled by the Supreme Court in the Special Land Acquisition Officer, Bangalore v. T. Adinarayan Setty, AIR 1959 SC 429, wherein it observed thus (at p. 432) :--

'It is not disputed that the function of the court in awarding compensation under the Act is to ascertain in the market value of the land at the date of the notification under Section 4 (1) and the methods of valuation may be, (1) opinion of experts, (2) the price paid within a reasonable time in bona fide transactions of purchase of the lands acquired or the lands adjacent to the lands acquired and possessing similar advantages and, (3) a number of years' purchase of the actual or immediately prospective profits of the lands acquired.'

18. In Raghubans Narain Singh v. Uttar Pradesh Govt., AIR 1967 SC 465, the Supreme Court ruled (at p. 467) :--

'Market value on the basis of which compensation is payable under Section 23 of the Act means the price that a willing purchaser would pay to a willing seller for a property having due regard to its existing condition, with all its existing advantages, and its potential possibilities when laid out in its most advantageous manner, excluding any advantage due to the carrying out of the scheme for the purposes for which the property is com-pulsorily acquired.'

19. In the Collector of Lakhimpur v. Bhuban Chandra Dutta, AIR 1971 SC 2015, the Supreme Court observed that in determining compensation, the value fetched for small plot of land cannot be applied to lands covering a very large extent.

20. Apparently the learned District Judge was oblivious of these considerations. Neither he tried to find out about the genuineness of the sale nor the exact location of this piece of land nor the effect of the transaction being after the date of issue of notification under Section 4 (1) of the Act nor the effect of sale of small piece of land. If the land under sale was adjoining village Gondpur the sale price would definitely be high since it could straightway be used tor putting up residential buildings.

21. Mr. Kapil Dev Sood, learned counsel for Maya Devi respondent, has vehemently contended that the potentiality of the acquired land, which was near an industrial complex, shows that the compensation awarded by the District Judge is not much. It is no doubt true that the potentiality of the acquired land has to be taken into consideration. But for this purpose there has to be material on record. We even do not know whether the acquired land runs along the metalled road as is suggested by the learned counsel for the respondents. Unfortunately the parties have not taken the trouble of even placing on record a plan of the locality in which the acquired land is situated. Even Aks Shajra has not been placed on record. This might have helped us to determine the exact location in order to appreciate the potentiality of the land. We may at this stage refer to a Supreme Court judgment in Adusu-milli Gopalkrishna v. Spl. Deputy Collector (Land Acquisition), AIR 1980 SC 1870. It was observed by the Court (at p. 1871) :--

'An assesseement of the compensation payable for land acquired must take into account several factors, including the nature of the land, its present use and its capacity for a higher potential, its precise location in relation to adjoining land, the use to which neighbouring land has been put and the impact of such use on the land acquired and so on.'

22. We find in these cases that neither the parties nor the court was conscious of the principles which had to be applied and taken into consideration for determining the compensation to be awarded to the claimants whose lands have been acquired. We would, therefore, allow the appeals and set aside the impugned judgment and remand the cases for re-trial. It is clarified that the parties will he at liberty to produce further oral and documentary evidence. No order as to costs.