Power Grid Corporation of India Vs. Lassi and ors. - Court Judgment

Excerpt:
- mansoor ahmad mir, j.1. this judgment will govern the 12 civil ist misc. appeals titled above, which are outcome of a common judgment dated 07.09.2000 passed by the learned additional district judge, srinagar whereby and where-under 12 references under section 18 of the land acquisition act have been decided.2. it is necessary to give a flask back of the case, the womb of which has given birth to the present appeals, in order to appreciate the points involved in these appeals.3. it appears that the chief engineer, transmission nhpc limited, udhampur, jammu had made a request, vide letter dated 2nd july, 1986, for the acquisition of the land for construction of 4000/220 kv sub station at village chattergam, pahroo, gangipora and wagur of tehsil chadoora district budgam. the land was notified in terms of section 4 of land acquisition act (hereinafter referred to as 'the act') vide collectorate no. 359/lac dated 05.08.1996. the administrative department made declaration as per the mandate of sections 6 and 7 of the act vide rd no. rev-226 of 1986. in terms of the said declaration, the collector was asked to acquire the land specification of which is given in the final award dated 12th november, 1987. after issuing notices under section 11 of the act and after seeking objections from the interested persons, the collector passed final award and awarded compensation of rs. 20,000 per kanal for bagh khushki land, rs. 18,000 per kanal for maidani land and rs. 15000 per kanal for gairmumkin land and other kinds of land.4. it appears that the interested persons (respondents herein) have disputed the adequacy of compensation and requested the collector to make reference to the district judge in terms of section 18 of the act. the collector has sent the references to district judge, budgam and the files were received by district judge, budgam and registry of district judge, budgam diarized the said references.5. it appears that the references were withdrawn from the files of district judge, budgam and transferred to the court of 2nd additional district judge, srinagar. the 2nd additional district judge, srinagar passed the judgment dated 19th october, 1991 in exparte and the collector was asked to pay compensation at the rate of rs. 45000 per kanal with jabrana 15% and interest @ of 4% per annum from the date of the order to the respondents.6. the respondents have examined the witnesses, namely, mohammad ramzan sofi, ghulam mohammad ganaie, maharaj krishan, abdul gani mir, aziz ganaie, mohammad yousuf and ghulam mohammad dar. the collector has not lead any evidence.7. the collector assailed the said judgment before this court and this court upheld the judgment of 2nd additional district judge, srinagar dated 19th october, 1991.8. the appellant, power grid corporation of india, preferred an appeal against the judgment passed by this court before the apex court. the apex court has with the consent of both the sides set aside the said judgment and remitted back the references to the reference court with the direction to the appellant to lead evidence and, the reference court to decide the matter afresh while taking into consideration the evidence already lead and the evidence of the appellant.9. it appears that in terms of order passed by this court on civil transfer application no. 45/1998, all the references were withdrawn from the files of 2nd additional district judge, srinagar and transferred to the court of additional district judge, srinagar vide order dated 2nd march, 1999.10. the appellant examined jagjit singh (patwari), abdul rashid (patwari), nazir ahmad rather (patwari), ghulam ahmad ganaie tehsildar, mohammad suliaman horticulture development officer of baghat-i-kanipora and mohammad altaf mir block development officer chadoora, wagura as witnesses. the learned additional district judge, srinagar passed the impugned judgment and held that the claimants/respondents are entitled to compensation at the rate of rs. 44000 per kanal with jabrana @ 15% and interest @ 6% per annum from the date of application.these appeals are directed against the said judgment.11. heard.mr. hussain argued that the apex court has provided opportunity to the appellant to lead evidence and directed the reference court to decide the matter a fresh. the evidence lead by the respondents before 2nd additional district judge, srinagar was appreciated by the said court and this court also. both the courts have held that the respondents have proved that compensation was not rightly awarded and held that the claimants were entitled to compensation at the rate of rs. 45000 per kanal. it was for the appellant to dislodge the said evidence of the respondents. the appellants have not been able to dislodge the evidence of the respondents. the additional district judge, srinagar has rightly passed the judgment after holding that the appellant has not made any dent on the finding already returned by the 2nd additional district judge, srinagar and by this court.12. learned counsel for the appellant argued that the order of the appellate court stands set aside by the apex court and reference court was directed to decide the matter afresh after recording the evidence of the appellant. the reference court had to discuss the evidence and return finding without being influenced by the observations made by the 2nd additional district judge and this court. the learned additional district judge got influenced by the said findings and has passed the impugned judgment.13. considered.it is profitable to reproduce the order passed by apex court herein, which reads as under;--by consent of both sides, the impugned order is set aside. the matters are remitted to the reference court for a fresh decision after hearing the appellant who will be entitled to produce such evidence as may be relevant to the question before the reference court. the reference court will decide, after taking into account, the evidence so produced and also the evidence on record. all parties ahll appear before the reference court on 3.8.1998. the reference court shall dispose of the reference as expeditiously as possible.the appeals are disposed of accordingly.14. while going through this order, it becomes evident that the apex court has set aside the order. the definition of words 'set aside' is given in lexicon webster dictionary, venkataramaiya's law lexicon legal dictionary, the concise oxford english dictionary and black's law dictionary respectively as under;-set aside; to put to one side; dismiss from the mind; to annul or quash.set aside; to reverse, vacate, cancel, annul, or revoke a judgment, order, etcset-aside;1. the action of setting something aside for a special purpose 2. the policy of taking land out of production to reduce crop surpluses;set aside; to annul or vacate (a judgment, order etc.) the judge refused to set aside the default judgment.15. while going through the definitions given hereinabove, one comes to inescapable conclusion that the word 'set aside' means to reverse or annul or cancel or revoke or dismiss from the mind. thus the judgment is not to be kept in mind.16. keeping in view the above definition the judgment is not in existence in the eye of law. consequently, the discussion made and the finding returned by this court or by the 2nd additional district judge is not in existence. thus it cannot be said that the findings made by this court or by 2nd additional district judge are in force and are to be taken into consideration.17. the definition of word 'a fresh' given in venkataramaiya's law lexicon legal dictionary, the concise oxford english dictionary and black's law dictionary reproduced herein respectively as under;-fresh; the word 'fresh' means 'new, novel, not previously known' a fresh; anew; with a fresh beginning.fresh; recent; not stale; characterized by newness without any material interval.18. the word 'afresh' means ignoring what has been decided earlier. the court has to make a fresh decision which in its wisdom appears to be correct.19. viewed thus, by no stretch of imagination, it can be said that the findings returned are binding and the appellant has to dislodge the said findings arrived at by the reference court or by this court.20. while going through the discussion made hereinabove, it is crystal clear that the findings returned by the reference court or by this court are not to be taken into consideration and the mind of the court should not get influenced by the said findings.21. viewed thus, the argument of mr. hussain fails.22. the meat of the matter is whether the impugned judgment is correct or otherwise. in order to return finding on this issue, the evidence of both the parties is to be scanned and appreciated.23. the respondents have already examined witnesses, as discussed hereinabove, and the appellants have also examined witnesses, namely, jagjit singh (patwari), abdul rashid (patwari), nazir ahmad rather (patwari), ghulam ahmad ganaie the then tehsildar, mohammad suliaman horticulture development officer of baghat-i-kanipora and mohammad altaf mir, block development officer chadoora wagura. all the witnesses examined by the respondents except abdul gani mir have deposed that the prevailing market rate at the time of acquisition was rs. 60000 to rs. one lakh but the said witnesses have neither purchased land nor sold the land. their evidence is not supported by any document. only one witness, namely, abdul gani mir has deposed that he has purchased land measuring 4 marlas in the village pahroo in lieu of rs. 20000 and has filed the certified copy of the sale deed which is exhibited as exp 1/1.24. the claimants have neither produced any other sale deed nor any other document. the appellant has examined five witnesses and their statements have been recorded. the witnesses jagjit singh, abdul rashid and nazir ahmad rather are the patwaris of the villages. they have given the details of revenue entries and have also produced the copies of the revenue extracts which have been made part of the file. it is pertinent to mention herein that nazir ahmad patwari has produced the report 'ausat rate sa sala' (i.e. report indicating that what was the approximate rate prevalent at the time of acquisition). the said report has been prepared while taking into consideration the sale deeds and other documents by virtue of which the land was sold during three period prior to the date of acquisition of the land in question. the said witness, nazir ahmad, has proved the said report and exhibited as expa.25. the question is whether the finding has been returned rightly by the learned additional district judge, srinagar while deciding issues 1 and 2.26. while going through impugned judgment, one comes to inescapable conclusion that the mind of learned additional district judge has been influenced by the judgments of 2nd additional district judge, srinagar and this court. it is profitable to reproduce relevant portion of the impugned judgment herein;--.it will be in this connection in place to mention that the apex court had directed to give finding in the matter after considering the evidence already on record as well as the evidence produced by the indenting department. the indenting department produced evidence which would in no way dislodge the finding arrived earlier by the reference court, although that stands set-aside by the order of the apex court but in essence evidence produced by the indenting department cannot make any dent on the finding already arrived at. 27. the question is whether one sale instance can be the guiding factor for holding that compensation has not been awarded rightly?28. my considered view is that one sale instance of a three or four marlas of land cannot be the instance for raising the compensation and that cannot be made basis for holding that what was the prevalent market rate at the time of acquisition. it is the bounden duty of the claimants/ respondents to prove that what a willing vendee would have paid to willing vendor. there is not an iota of evidence which would have been the basis for holding that what amount would have been paid by the vendee to the willing vendor.29. the apex court has held in case special deputy collector v. kurra sambasiva rao reported in : [1997]3scr1107 , as under;-7. whether fair and reasonable and adequate market value is always a question of fact depends on the evidence adduced, circumstantial evidence, and probabilities arising in each case. the guiding star or the acid test would be whether a hypothetical witting vendor would offer the lands and a willing purchase in normal human conduct would be willing to buy as a prudent man in normal market conditions prevailing in the open market in the locality in which the acquired land are situated as on the date of the notification under section 4(1) of the act; but not an anxious buyer dealing at arm's length with throw away price, nor fagade of sale or fictitious sales brought about in quick succession or otherwise to inflate the market value. the judge should sit in the arm chair of the said willing buyer and seek an answer to the question whether in the given set of circumstances as a prudent buyer he would offer the same market value which the court proposed to fix for the acquired lands in the available market conditions. the court is, therefore, enjoined with the bounden duty of public function and judicial dispensation in determination of the market value of the acquired land and compulsory acquisition. 30. while going through this judgment, the acid test is that what a willing buyer in a normal human conduct would be willing to buy as a prudent man in a normal market conditions prevailing in the open market in the locality. the test is not what an anxious buyer will offer in order to inflate the market value. it is the duty of the judge to sit in the armed chair of the said willing buyer and seek answer.31. the apex court has laid down the guidelines and has held that it is bounden duty of the court to ascertain what was the prevalent market rate at the relevant point of time. it is also the duty of the court to see that the claimants are not taking advantage of any factor in order to claim compensation at higher rates. it should not be as a boon in disguise. it is for the court to see that what amount should have been awarded at the relevant time.32. i am of the considered view that the respondents have not produced any evidence indicating what a willing buyer would have paid per kanal at the relevant time and what a willing seller would have accepted.33. the apex court has held in a judgment passed in state of j&k; v. mohammad mateen wani reported in : air1998sc2470 , that the sale instance relating to a small parcel of land cannot be the guiding factor. it is profitable to reproduce relevant portion of the said judgment herein;-10. coming to the challenge as regards the enhanced compensation for the land we find that the sale instances relied upon by the claimants can hardly be treated as comparable instances. the sale instances relate to small parcels of lands not more than 3 to 4 marlas each. only one sale instance was sought to be proved by the claimants through the evidence of mohd. shaban, who had stated that three marlas of land in the close vicinity of the acquired land was sold to a cooperative society @ rs. 33,000 per kanal. other sale instances although produced on record but the same were not proved by the claimants either by examining the vendor or the vendee. as stated earlier these sale instances are of a very smaller area and, therefore, they cannot be said to be comparable sale instances to determine the market prices of such a big chunk of acquired land. the other evidence adduced by the claimants is consisted of the oral testimonies of lumbardars and local zamindars. their oral evidence could hardly be accepted as a guide for determining the market prices of the acquired land because they were not experts. the net result, therefore, is that the evidence of the claimants as regards the sale instances cannot be accepted as a measure to determine the market price of the acquired land.... 34. while going through this judgment, one comes to an inescapable conclusion that test is one sale instance of three or four marlas of land cannot be used as a guiding factor and further their lordships have also laid down that oral evidence cannot be accepted as guide for determining the market price of the acquired land.35. applying the test to the instant case, the evidence of the respondents is the oral evidence on the file except the statement of the witness, abdul gani mir. thus it cannot be held that sale deed exp1/1 is the guiding factor.36. it is also profitable to reproduce relevant portion of para-6 of the apex court judgment titled union of india v. ram phool reported in 2003(10) scc 166 herein;--6...it has been held in a catena of decisions of this court that the sale price in respect of a small bit of transaction would not be the determinative factor for deciding the market value of a vast stretch of land. as has been stated earlier, the extent of land acquired in the case in hand i.e. 5484 bighas. in that view of the matter, we have no hesitation to come to the conclusion that the high court has wholly erred in relying upon exhibit a-1 in determining the market value of the acquired land extending to 5484 bighas. since the onus is on the claimant to lead evidence on the determination of market value and if exhibit a-1 is taken out of consideration, then there is no residue of evidence on which the determination made by the high court enhancing the compensation awarded by the reference court could be sustained. we, therefore, set aside the impugned judgment of the high court and affirm the market value as determined by the reference court. these appeals are allowed. cross appeals filed by the claimants are dismissed. 37. while going through these judgments, one comes to an inescapable conclusion that the sale of small plot cannot be a guiding factor.38. it is the duty of the claimants(respondents) to prove that what was the adequate rate which would have been awarded by the collector at the relevant point of time and it is not the duty of the indenting department to prove that what was the adequate compensation. the respondents have disputed the adequacy of compensation so the burden was on them. the apex court has held in a judgment titled special deputy collector v. kurra sambasiva rao reported in : [1997]3scr1107 as under;-6...it is the bounden duty of the court to evaluate the evidence on the basis of the human conduct, even if no rebuttal evidence is produced by the land acquisition officer, to assess the market value applying the relevant tests laid down by this court in bead role of decisions. in periyar and pareekanni rubbers ltd. v. state of kerala : air1990sc2192 , this court considered the entire case law as on that date, on the principle of determination of market value and the relevant test laid in that behalf. the burden of proof that the amount awarded by the land acquisition officer/ collector is not adequate is always on the claimant. the burden is to adduce relevant and material evidence to establish that the acquired lands are capable of fetching higher market value than the amount awarded by the land acquisition officer i collector or that the land acquisition officer i collector proceeded on a wrong premise or applied a wrong principle of law .... 39. the apex court has held in case union of india v. ram phool reported in 2003(10) scc 166 (supra) that the onus is on the claimants.40. the claimant is in the position of a plaintiff(s) who has to prove his case. the apex court has held in the case titled chimanlal v. spl. land acquisition officer, poona reported in 1988 air 1652 as under;--4. the following factors must be etched on the mental screen:(1) ...(2) ...(3) ...(4) the claimant is in the position of a plaintiff who has to show that the price offered for his land in the award is inadequate on the basis of the materials produced in the court. of course the materials placed and proved by the other side can also be taken into account for this purpose...41. while applying the test laid down in the aforesaid judgments, i am of the considered view that respondents have failed to discharge the onus.42. the learned additional district judge has held that the appellants have failed to dislodge the evidence of the respondents. this finding is not correct. the learned additional district judge has not discussed the 'ausat rate seh sala' expa. he has not made a whisper in the judgment about expa. the said report has been prepared by a patwari of revenue department while discharging the official functions. the apex court has held in case titled state of j&k; v. mohammad mateen wani reported in : air1998sc2470 , referred hereinabove, that such type of report is admissible in evidence and can be relied on for holding what rate should have been the awarded at the relevant point of time.43. it is the duty of the court, collector and all officers who are performing public functions to see that public money is not being fritted away in any way.44. it is the duty of the court to see and protect the public interests. the awarding or enhancing the compensation should not be as a boon in disguise to the claimants.45. keeping in view the above discussion, the respondents have failed to discharge the onus and thereby have failed to prove that the compensation has been wrongly assessed and awarded.46. in the given circumstances, the learned additional district judge has wrongly decided the issues 1 and 2. accordingly, issues 1 and 2 are decided in favour of the appellant against the respondents by holding that the respondents have failed to prove the issues 1 and 2.47. the learned counsel for the respondents has not pressed issue no. 3, accordingly, that is decided as not pressed.48. in view of the above discussion, all the appeals are accepted and impugned judgment is set aside and all the references are dismissed.