Union Of India vs Anshul & Ors.

The appellant / Union has filed these appeals being aggrieved by the award passed by the District Court under the provisions of Section 18 of the Land Acquisition Act, 1894. Learned Counsel for the respective parties have agreed that all the above mentioned appeals are based on identical set of facts.

As such, in view of agreement of learned counsel for the parties, as also, since all the appeals involve identical questions and relate to the same acquisition of land under the same notifications, they are being decided by this common order. For convenience, the facts of the F.A. No.126/2021 are being referred to.

The relevant facts of the case are that for the development of broad-gauge railway line between Dahod and Indore (known as Barasta - Jhabua -Dhar - Pithampur), respondent No.3 / State of M.P. issued notification under Section 4 of the Land Acquisition Act, 1894 on 13.03.2009 for the acquisition of 10.797 hectares of land situated in Village Jamodi, Tehsil and District Dhar.

After following the due procedure, the Land Acquisition Officer passed award dated 07.07.2010, whereby compensation was granted to the landholders at the rate of Rs.9,68,333/- per hectare for irrigated land and at Rs.5,83,333/- per hectare for unirrigated land.

Apart from this, solatium at the rate of 30%, additional compensation at the rate of 12% and interest at the rate of 9% were also awarded.

The landholders being dissatisfied with the award passed by the Land Acquisition Officer, filed reference petitions in terms of Section 18 of the Land Acquisition Act, claiming compensation for unirrigated land at the rate of Rs.1,50,00,000/- per hectare and for irrigated land, at double the said rate.

The reference Court after recording evidence, enhanced the compensation for irrigated land by determining the market value at Rs.42,63,637/- per hectare. The appellant being aggrieved by the said enhancement, has come before this Court by way of present appeals in terms of Section 54 of the Land Acquisition Act.

The respondent(s) has filed cross-objections in the present appeals in terms of Order XLI Rule 22 of the CPC, claiming that the compensation for unirrigated land should be valued at Rs.1,30,43,478/- per hectare and for irrigated land at Rs.1,95,65,217/- per hectare.

Learned counsel for the appellant while referring to the findings recorded by the reference Court, submits that although the exemplars given by the landholders marked as Exs.P-1 to P-3 were discarded by the reference Court, it nevertheless proceeded to enhance the compensation from Rs.9,68,333/- per hectare to Rs.42,63,637/- per hectare. According to him, the only basis for such enhancement was the judgment passed by this Court in F.A. No.664/2018.

He submits that the reliance placed by the reference Court on the said judgment of this Court is misplaced as the said appeal pertained to a different village namely Agrakhedi and therefore could not have been relied upon for determining the market value of land situated in Village Jamodi. He further submits that the said judgment could not have been taken as exemplar for deciding the amount of compensation or determining the value of the acquired land.

It is further submitted that Exs. D-1 sale deed was placed on record by the appellants before the reference Court. However, that was completely overlooked and the enhancement was made merely on the basis of the aforesaid judgment passed by this Court.

Learned counsel further submits that the findings have been recorded by the trial Court in Para 21 to the effect that the distance between Village Jamodi, Village Kheda and Akoliya is approximately half a kilometer. According to him, the said finding is without any evidentiary basis, as no evidence was led to reach such conclusion. He submits that land situated in adjoining village cannot be taken as exemplar for determining compensation.

In support of his submissions, he places reliance on the judgment of the Hon'ble Apex Court passed in the case of Manoj Kumar and Others vs. State of Haryana and Others (2018) 13 SCC 96, Cement Corporation of India Ltd. vs. Purya and Others in AIR 2004 SC 4830, Kanwar Singh vs. Union of India AIR 1999 SC 317 and State of Madhya Pradesh and Another vs. Kashiram (Dead) by LR. Gopilal (2010) 14 SCC 506 .

He further submits that the testimony of Ashish (PW-1) does not contain any statement regarding the distance between Agrakhedi and Jamodi. It is thus contended that on two counts i.e. (i) non-consideration of the exemplars submitted in Exs. D-1 and D-2 and (ii) recording finding regarding distance without any evidence, the impugned order is not sustainable.

Per contra, learned senior counsel for the respondents / landholders submits that the reference Court has in fact considered Ex.D-1. He points out that in Para 18, the trial Court has held that the exemplar contained in Ex.D-1 cannot be relied upon.

He further submits that the assertion of the appellant that there was no evidence to prove that the distance between Agrakhedi and Jamodi is only half a kilometer is completely incorrect. He submits that a perusal of statement of Ashish (PW-1) would show that he has stated in Para 21 that the distance between two villages is about half a kilometer.

Learned senior counsel further submits that in para 8 of his examination-in-chief, the witness stated that Village Jamodi is situated about 8-10 kms from Mhow and about 12-15 kms from the city of Indore. He further submits that in para 23 of his cross-examination, the witness clearly stated that at the relevant time, there was ban on executing sale deeds in respect of land in Village Jamodi, therefore, no sale deeds could be placed on record.

It is further submitted that, in para 24 of the cross-examination, the witness stated that Village Jamodi has now been included within the Municipal Council, Pithampur. Learned senior counsel submits that the respondent did not cross-examine the witness with respect to his deposition in para 8 of the examination-in-chief and therefore, the fact that the land in question falls within the municipal area remained uncontroverted. He further submits that the statement recorded in para 24 of his cross-examination, to the effect that Village Jamodi falls within the municipal area of Pithampur has also remained firm and unshakable.

He then submits that as stated in para 25, the distance between Village Jamodi and Pithampur is about two and a half kms. It is thus evident from the evidence that Village Jamodi is situated near Pithampur and is only around half a km away from Agrakhedi.

Learned senior counsel then refers to the statement of Kailash Narayan Pal (DW-1) and submits that perusal of his statement would show that he failed to dislodge the case of the land holders. He submits that in response to pointed question recorded in para 14, the witness gave evasive reply, stating that the degree college is situated about 3-4 kms from the land acquired for the railway project. The question put to him was that, as per the revenue records pertaining to Village Jamodi, a degree college is situated within half a km of the said village.

He further submits that in response to each and every question, the witness submitted that he had no knowledge of that relevant facts, which shows that he was evasive and non-committal. Instead of substantiating the case of the appellant / Union, the witness merely denied the knowledge of facts which were put to him in suggestions. Therefore, according to learned senior counsel, his testimony does not discredit or dislodge the evidence led by PW-1.

He thus submits that the grounds on which the present appeal has been filed are not sustainable.

Apart from the above, while referring to the cross-objection, learned counsel for the respondent submits that the reference Court has made deductions of 33% from the amount of compensation; however, the same is not sustainable in view of the law laid down by this Court in the case of Sabhia Mohammed Yusuf Abdul Hamid Mulla (dead) by LRs. and Others vs. Special Land Acquisition Officer and Others in 2012 (4) MPLJ 589, Nelson Fernandes and Others vs. Special Land Acquisition Officer, South Goa and Others in (2007) 9 SCC 447 , Sitabai and Others vs. State of M.P. and Others in 2009 (2) MPHT 442 and Union of India Through Dy. Chief Engineer vs. Kashya and Ors. and other connected cases in F.A. No.852/2019.

He further submits that there was no occasion for the reference Court to discard the exemplars produced as Exs. P-1 and P-2 and therefore, the compensation ought to have been enhanced on the basis of the said exemplars.

Heard learned counsel for the respective parties and perused the record.

The main thrust of the arguments of the learned counsel for the appellant / Union of India is that the trial Court while passing the impugned award, quantified the compensation at the rate of Rs.42,63,637/- per hectare only on the basis of the orders passed by this Court in F.A. No.664/2018. However, the said appeal was with respect to different village and not to Village Jamodi from where the land in question was acquired.

The second limb of the argument of the learned counsel for the appellant is that while placing reliance on the aforesaid order in F.A. No.664/2018, the trial Court completely overlooked Ex. D-1, which is the sale deed pertaining to Village Jamodi itself.

The third ground raised by the learned counsel is that the reference Court treated the distance between Village Jamodi and Villages Kheda and Akoliya as only half a kilometer, despite there being no evidentiary material on record to support such finding.

Since all three issues are interwoven and the determination of one has direct bearing on the others, all three are being considered together.

As regards the sale deed (Ex. D-1), the reference Court considered the same in para 13 and found that the rate mentioned therein was even less than the rate determined by the Land acquisition Officer. Thus, in view of Section 25 of the Land Acquisition Act, the said sale deed could not be relied upon. This Court has also carefully examined the said sale deed. The sale deed pertains to an area of 0.445 hectare out of which 0.105 hectare is irrigated and the remaining 0.340 hectare is unirrigated. Para 10 of the sale deed mentions that the land is situated at a long distance of two kilo meters away from the main road. Apart from this, the sale deed is of the yea 2007, whereas the acquisition was made pursuant to the preliminary notification issue on 13.03.2009. Now if this sale deed is seen in juxtaposition to the potentiality of the acquired land demonstrated by the land owners (which is discussed herein below), then it does not appears to be safe to rely upon this sale deed. As such, in the considered view of this Court, the reference Court has not committed any error in relying upon the said sale deed.

The reference Court while recording its finding regarding the distance between Village Jamodi from where the land in question was acquired and Village Kheda recorded in para 21 that the evidence on record establishes that the distance between Village Jamodi and Villages Kheda and Akoliya is about half a kilo meter.

A perusal of the statement of Ashish (PW-1) would show that in para 4 of his examination-in-chief, he stated that the land situated in Village Jamodi is adjacent to the lands situated in Villages Akoliya and Kheda. He specifically stated that the lands of all three villages abut each other. This statement of the said witness was put to test in cross-examination by learned counsel for the State as well as by the learned counsel for the Union. In para 21 of his cross-examination, the witness specifically stated that the distance between these villages is about half a kilometer. In para 23, the witness further stated that the distance between Village Jamodi and Village Akoliya is about one kilometer.

If the statement of Ashish (PW-1) is considered along with the statement of Kailash Narayan Pal (DW-1), who was working as Junior Engineer with respondent No.2, it becomes evident that throughout his entire examination-in-chief, DW-1 did not even refer to Villages i.e. Kheda and Akoliya. He did not say anything as to the distance between Village Jamodi and either of these two villages. As such, the submission of Ashish (PW-1) on this aspect remained intact, as the respondents failed to adduce any rebuttal evidence so as to demonstrate that the distance stated by Ashish (PW-1) was not correct. In absence of any rebuttal evidence, the reference Court has not committed any error in recording the finding in para 21 that the distance between the villages is around half a kilo meter.

Apart from the above, there is one more aspect of the matter that deserves consideration.

If the statement of Ashish (PW-1) is examined, it would be found that he stated in paras 2 and 8 of his statement that the land situated in Village Jamodi falls within the municipal limits of the Municipal Council, Pithampur. He further stated that his land is situated in Survey No.17. In para 7, the said witness stated that the acquired land is surrounded by Industrial Area Nos.1 to 4, the Special Economic Zone (SEZ) and the auto testing track of the Pithampur Industrial Area.

It is further stated that several industries are running in the surrounding areas and thus the potential value of the acquired land is much higher. In para 8, it has also been stated that the acquired land is situated at distance of 600 feet from Kuti Chouraha (square), the bus stand, Patel Nagar Colony and Moti Nagar Colony. It is stated that Chhatrachhaya Colony is also situated around 600 feet away from the acquired land. According to the witness, these colonies comprise several residential houses, commercial shops, educational institutions including college are also situated nearby. As such, the potentiality of the acquired land was demonstrated.

Further in para 10 of his examination-in-chief, the said witness stated that the Mhow-Neemuch road is situated at a distance of about 600 feet from the acquired land. This, once again demonstrates the potentiality of the acquired land.

Now this statement in examination-in-chief was not tested by the respondents during his cross-examination, the only question was asked about the distance between Chhatrachhaya Colony and Pithampur, to which he replied that the said colony is situated around 2 kms away from Pithampur. However, no question was asked regarding the distance between the acquired land and Chhatrachhaya Colony. Thus, all these statements of the witness have remained uncontroverted.

Now if we see these statements as opposed to the statement of Kailash Narayan Pal (DW-1), a perusal of paras 15 to 17 shows that he merely stated that he had no information about the S.P. Office, school and colonies etc. Thus, the statement of the witness of appellant / defendant is not only evasive but leads to nowhere.

The appellant / defendant was not able to dismantle the evidence led by the landowners for demonstrating the potentiality of the acquired land and also its situation/location. Thus, it is established that the land is situated within the municipal limit of Pithampur Industrial Area around 600 feet from the Mhow-Neemuch Road and is surrounded by residential colonies and other developed areas. It also establishes that the distance between Village Jamodi, where the acquired land is situated and Village Kheda and Akoliya is about half a kilometer. This evidence has remained uncontroverted.

Now in the present the reference court has relied upon the judgment passed by this court in the case of Village Agarkhedi in FA No.664/2018 for the determination of market value for quantification of compensation. As recorded above, the lands of Village Jamodi and Village Kheda are adjacent to each other. Furthermore, this Court in FA No.852/2019 and connected appeals has passed judgment on 27.09.2021. In para 4 of the said judgment, this Court recorded that the distance between Village Agarkhedi and Village Kheda was not more than 3-4 kms and that both villages were adjacent to each other. Thus, similar rates were adopted in that case also.

In view of the above facts what comes to the fore is that the nature of land in Village Kheda, Village Jamodi and Village Agarkhedi are contiguous. Furthermore, the potentiality of the acquired land situated in Village Jamodi has been demonstrated by the witness Ashish (PW-1) as recorded above. Thus, looking to the potentiality of the land acquired and the contiguous nature of the land situated in all three villages, this Court is not inclined to interfere in the determination of market value done by the reference Court in the impugned award.

Thus, In the present case, as discussed herein above, the evidence on record shows that the judgment in F.A. No.664/2018 relating to Village Agarkhedi could easily be relied upon by the reference Court. This is because no other material available on record and Village Agarkhedi is one of the villages from where land was acquired by the appellant / Union for the construction of the Dahod-Indore broad-gauge railway line.

The learned counsel for the appellant has placed reliance on the judgment of Manoj Kumar (supra) . The said case was subsequently considered by the Hon'ble Apex Court in the case of Sardara Singh v. LAO, (2020) 14 SCC 483, the Hon'ble Court held in paras 8 to 12 as under :

Thus, as per para 10 of Sardar case (supra) the judgment in Manoj Kumar case is restricted to the facts of the said case. Apart from that, the Hon'ble Apex Court clearly held that compensation awarded in respect of two villages (which were nearby villages in that case) is a pointer which cannot be disregarded. Now, in the present case, in view of the findings as recorded above on analysing the evidence and judgments passed in F.A. No.664/2018 and F.A. No.852/2019, it is clear that the compensation determined by the this court in the case of F.A. No.664/2018 was definitely a relevant factor.

As far as the judgment in the case of Cement Corporation of India Ltd. (supra) is concerned, the proposition laid down therein is that though the registered sale deed is admissible in evidence and the examination of its vendor or vendee is not required to prove its contents, the transaction evidenced by such sale deed cannot be accepted automatically. The same will depend on the facts and circumstances of each case in light of the evidence brought on record.

In the present case, the said judgment does not help the appellant. The reference Court discarded not only the three sale deeds placed on record by the landowners but also the sale deed (Ex. D-1) produced by the appellant. As already discussed in above paragraphs, the reference Court considered the potentiality of the acquired land in light of the statement of Ashish (PW-1). Significantly, this evidence remained completely intact without any rebuttal from the appellant's side. Thus, the judgment in Cement Corporation of India Ltd. (supra) will also not come to the rescue of the appellant.

As far as the judgment in the case of Kanwar Singh (supra) is concerned, the Hon'ble Apex Court has considered this very aspect that generally there will be different situation and potentiality of lands situated in two different villages unless it is proved that the situation and potentiality of the land in two different villages are the same, the same will not be taken as example for the another village.

However, in the present case, as recorded herein above, the potentiality of the land has sufficiently been demonstrated by the landowners by leading evidence. As such, the said judgment does not help the appellant.

Similar is the judgment of Kashiram (supra). As such, in the considered view of this Court, the findings recorded by the reference Court are in accordance with the evidence, which was available on record.

As far as the question of enhancement of compensation is concerned, this Court is not inclined to revise the same for the reason that in the considered view of this Court, the reference Court correctly discarded Exs. P-1 to P-3 (sale deeds) firstly because they relate to very small parcels of land and secondly because the nearness of the land which is the subject matter of those sale deeds has not been demonstrated from the acquired land. Thus, the reference Court committed no error in discarding the said sale deeds.

As far as the question of deduction of 33% from the amount of compensation is concerned, the reliance has been placed by the learned counsel for the respondents / landowners on the judgment in the case of Nelson Fernandes (supra). The said judgment was also relied by this Court i n Balram vs. State of Madhya Pradesh and Another in F.A. No.664/2018 , wherein this Court held that 33% deduction was reasonable in the facts and circumstances of the case.

In the present case, the respondents / landowners on one hand are relying on the case of Balram vs. State of Madhya Pradesh and Another in F.A. No.664/2018 for determination of market value, which the reference court accepted and fixed the marked value accordingly, and on the other hand, they are arguing that deduction of 33% is not accepted. Thus part of the judgment is being relied upon and other part of the judgment is being opposed which cannot be permitted.

As such, the deduction of 33% in the considered view of this Court is not required to be interfered with.

In view of the above, all the appeals along with cross-objections are hereby dismissed. The awards passed by the reference Court are hereby affirmed.