Uttarakhand High Court
Singh And Company vs Collector on 8 July, 2005
Equivalent citations: AIR2005UTR76
Author: P.C. Verma
Bench: P.C. Verma, B.S. Verma
JUDGMENT P.C. Verma, J.
1. Both these appeals arise of the same judgment and order passed by the Reference Court and similar questions are involved for determination in these appeals, therefore, they are being decided by this common judgment.
2. First Appeal No. 175 of 2001 has been preferred by the claimant/appellant against the judgment and award dated 30-5-1989 passed by the III Additional District Judge, Nainital in Land Acquisition Case No. 104 of 1983, Singh and Company v. Collector, Nainital, whereby the reference made by the Collector, Nainital under Section 18 of the Land Acquisition Act was allowed partly and the claimant was held entitled for compensation of Rs. 15,89,072.00 for the acquired land and Rs. 2,01,600.00 for the trees and buildings and on these amounts solatium at the rate of 30% along with interest @ 12% per annum on the increased amount of compensation from the date of possession of the acquired property till the date of payment, whereas First Appeal No. 673 of 2001 has been preferred by the Collector, Nainital (respondent in First Appeal No. 175 of 2001) against the aforesaid judgment and award dated 30-5-1989 passed in L.A. Case No. 104 of 1983 for setting aside the order passed by the III Additional District Judge, Nainital and further to confirm the award given by the Land Acquisition Officer, Nainital in the said case. On the other hand, the State/Collector, Nainital has also come up in First Appeal No. 673 of 2001.
3. Brief facts of the case, giving rise to these appeals, are that the State Government had acquired 4-56 acres of land for the construction of offices and residences of Kumaon University, Nainital. The acquiring body was the Kumaon University, Nainital. Notification under Section 4(1) of the Land Acquisition Act (hereinafter referred to as the Act) was made on 31-5-1980 and notification under Section 6 of the Act was made on 7-3-1981. The acquired landed property belongs to the claimant M/s. Singh & Company within the Municipal limits of Nainital. The Special Land Acquisition Officer calculated the price at the rate of Rs. 8.00 per sq. feet and certain deductions have also been made. A deduction of 25% has been made because the acquired land measures a vast area; another deduction of 25% has been made because the land was uneven and great expenditure will be needed to make the land plain. In this manner the compensation payable for the land had been worked out by the Special Land Acquisition Officer at the rate of Rs. 4.50 per sq. feet, which comes to Rs. 8,93,855.00. The trees in the land have been valued at Rs. 69,000.00. The buildings situated in the land have been valued at Rs. 1,32,000.00. Solatium at the rate of 15% has been granted on the compensation payable in respect of land, trees and buildings. A total sum of Rs. 12,59,770.95 has been awarded to the claimants by the Special Land Acquisition Officer, vide his judgment and award dated 28-2-1983.
4. Aggrieved by the said award dated 28-2-1983, the claimant M/s. Singh & Company through its owners made reference through the Collector to the District Judge, Nainital under Section 18 of the Act on 8-4-1983 for decision and determination on the grounds, inter alia, that the land acquired is situate in the heart of the Nainital town and very close to the main market and other important places of Nainital town, such as, O.T.S. Nainital Club, Polytechnic etc. and possesses greater value. The exemplar sale deed relied by the Special Land Acquisition Officer is not so close to the main market and is very far from it. That the land acquired has wrongly been classified and grossly under-valued and the valuation given in the award is quite unreasonable and beyond the actual facts. That from all the sides the land is approachable by motor road. The whole locality is a posh locality. The present rates of this area is in between Rs. 15/- to 20/- per sq. feet but the applicant claimed the value of the land at the rate of Rs. 15/- per sq. feet. Only as the whole area of the land, measuring 4.56 acres is acquired in one lot and the minimum rate which has been fixed by the District Magistrate, Nainital of this area were claimed by the applicant. That the award has been given after many deductions. The deductions made by the Special Land Acquisition Officer are quite wrong and illegal and has been made arbitrarily.
5. Before the reference Court it was contended by the claimants that the acquired land is very close to the main market of Mallital, Nainital and the Special Land Acquisition Officer has not properly assessed its value. The acquired land has wrongly been classified and grossly under-valued. The situation of the land is very good. There are so many hotels, officers, schools and is adjacent to the Kumaon University Administrative Block. Having regard to the locality, location and potentiality of the land and property, the claimants asked for the value of the land at the rate of Rs. 15.00 per sq. feet as the whole area of the land measuring 4-56 acres was being acquired in one lot and the minimum rate has been fixed by the District Magistrate, Nainital of this area. It was further contended by the claimants before the reference Court that the compensation paid for the trees and buildings is also unreasonable. According to them, a sum of Rs. 1,24,500.00 should be paid for the trees and Rs. 1,50,000.00 for the buildings as compensation. The deductions made by the Special Land Acquisition Officer have also been challenged by the claimant.
6. The Opp-party/State contested the claim by filing its written statement contending that the claimants are not entitled to any enhanced compensation.
7. On the pleadings of the parties, the reference Court framed the following issues:--
1. Whether the compensation awarded for the land in dispute is unfair and inadequate ? If so, what is the fair amount of compensation.
2. Whether the compensation paid for the trees is unfair and inadequate ? If so, what is the fair amount of compensation.
3. Whether the compensation paid for the buildings is unfair and inadequate ? If so, what is the fair amount of compensation?
4. Whether the deductions made by the Land Acquisition Officer were illegal and unfair ? If so, its effect ?
5. To what relief, if any, is the claimant entitled ?
8. The claimants adduced oral as well as documentary evidence before the reference Court in support of their case. In the documentary evidence they filed the copy of the sale deed dated 15-5-1979 executed by Sri Ram Prakash and others in favour of Sri Govind Lal Sah and Sri Devi Lal Sah in respect of 1531.59 sq. feet of Land situated at Waldrof Hotel, Mallital, Nainital for a consideration of Rs. 36,631.80 and copy of sale deed dated 22-2-1979 executed by Sri Ram Prakash in favour of Sri Mahmood Ahmad in respect of 2126.30 sq. feet, of land at Waldrof Hotel, Mallital, Nainital for a consideration of Rs. 42,526.00. The Opp-party/ State of U. P. has also relied upon the exemplar sale deed executed by Sri J.S. Sanga in favour of Sri M.M. Zafar of 7500 sq. feet of land at Stainley Hall compound for a consideration of Rs. 60,000.00. It is the same sale deed upon which the Special Land Acquisition Officer has also relied and the rate works out to be Rs. 8.00 per sq. feet.
9. The reference Court after appreciating the evidence of the parties, while deciding issue Nos. 1 & 4 jointly, held that the sale deed relied upon by the State/Opp. party most aptly represents the market value of the acquired land but the deductions made by the Special Land Acquisition Officer first at 25% and then again at the rate of 25% (total 50%) was held unjustified and unfair holding that the whole area is a developing area and the land has a great potential value and further held that deduction on account of levelling of the land is also not just and reasonable. The reference Court held that the claimants are entitled to compensation at the rate of Rs. 8.00 per sq. feet without any deduction. The reference Court while deciding issue Nos. 2 & 3 jointly held on the basis of the evidence that Rs. 69,000.00 as compensation for 276 trees existing in the acquired land and Rs. 1,32,600.00 as compensation for the building exist on the acquired land is fair and adequate and thus partly allowed the reference accordingly. Feeling aggrieved, the claimant as well as the State/Opp. party have come up in these appeals before this Court.
10. We have heard the learned Counsel for the parties and have gone through the record. The grounds of challenge before us in the appeal raised by the claimant/appellant are to enhance the compensation at the rate of Rs. 15/- per sq. ft. In support of their contention, the claimants adduced both oral as well as documentary evidence and placed reliance on the sale instance dated 15-5-1979 as well as on the sale instance dated 22-2-1979 and the same have completely been ignored by the Reference Court. While deciding the reference, the Reference Court awarded the compensation at the rate of Rs. 8/- per sq. ft. on the basis of sale-instance dated 18-9-1979 relied upon by the State as well as by the S.L.A.O. It was also stated that the land under acquisition is non-identically situated and that too without examining the vendor and vendee of the sale deed. Furthermore, the Reference Court has erred in law in not taking into consideration the statement of P.W. 2. It has categorically been stated in his statement that the land in question as assessed by the Collector prevailing in the year 1980-81 was at the rate of Rs. 135.00 per sq. Mt. This evidence adduced by the claimant/appellant remained unrebutted by other party of the State. The State has not adduced any evidence in support of their contention. They further contended that at least the rate fixed by the Collector for the purpose of payment of stamp duty on sale deed document as has been fixed by the Collector should be the minimum market value for the purpose of determination of compensation.
11. The claimant-appellant has mainly contended that the compensation awarded by the Special Land Acquisition Officer and modified by the Additional District Judge, Nainital, by the impugned judgment is wholly inadequate and contrary to the prevailing market value and the compensation in respect of the building and trees standing on the spot is too inadequate.
12. On the other hand, the State-appellant has assailed the impugned judgment of the Reference Court on the ground that the award of compensation @ Rs. 8/- per sq. ft. and it was submitted that the land acquired was rought and sloppy and that the deduction of 25% by the S.L.A.O. was proper considering the largeness of area and further deduction of 25% towards development charges by the S.L.A.O. was proper.
13. The main controversy before us are of three-fold :--
1. Whether the circle rate fixed by the Collector for the purpose of realizing the stamp duty on the sale of land would be the proper method to determine the just and proper compensation ?
2. Whether the sale-instance filed by the claimant/appellant indicates the just and proper compensation and whether these sale instances can be relied upon ?
3. Whether the sale-instance relied by the Reference Court as well as by the S.L.A.O. indicate the just and proper compensation ?
14. It is an admitted case that the notification under Section 4(1) of the Act was issued on 31-5-1980 followed by notification under Section 6 of the Act was made on 7-3-1981 and the award was made by the S.L.A.O, on 30-5-1989. The claimant had examined two witnesses in support of his case and have filed sale instances that is (1) The sale instance dated 15-5-1979 executed by Sri Ram Prakash in favour of Sri Govind Lal Sah in respect of 1531.59 sq. feet of land at Waldrof Hotel, Mallital, Nainital for a consideration of Rs. 30,631.80 and (2) The another sale instance dated 22-2-1979 executed by Sri Ram Prakash in favour of Sri Mahmood Ahmad in respect of 212639 sq. feet of land at Waldrof Hotel, Mallital, Nainital for a consideration of Rs. 42.526.00.
15. The sale instance dated 15-9-1979 was relied upon by the S.L.A.O. as well as by the Reference Court. The Reference Court ignored other two sale instances filed by the claimant/appellant on the ground that the sale deed filed by the claimant/appellant are near to the main market whereas the acquired land is a bit away from the main market. The value of the land near the main market certainly has more value whereas the land situated away from the market letches less value. The Reference Court ignored the sale deed filed by the claimant to determine the market rate of the acquired land which is about two furlong away from the Waldorf Hotel compound. The Reference Court did not disclose the distance in its judgment and the distance from the Stoneley Compound. The Reference Court only referred the distance of the sale instances, which were filed by the claimant/appellant. The Reference Court in its judgment had observed that the area of land acquired is situated in the developing area and has a great potential value and it has also been observed that the sale instances relied upon by the opposite parties are also in the developing area of the Nainital town. This land is also not distant from the acquired land. It is pertinent to mention here as has been mentioned earlier that the. Reference Court did not disclose the distance of the sale instance upon by the S.L.A.O.
16. On behalf of the claimant/appellant, P.W. 1 M.P. Singh has stated on oath that the acquired property is known as Craig Cottage formerly known as "Ahmad Lodge" and is a better land than that of the land of the exemplar sale instance relied upon by the Land Acquisition Officer, Nainital and is distant from the acquired land. He has also stated that the acquired land fetches the market value of Rs. 15,00 to Rs. 20,00 per sq. feet.
17. The Reference Court had also given a categorical finding that from where the land is acquired situates at Sukhatal and the whole Sukhatal area is a developing area and the said land has a great potential value. All the important hotels and offices are in the vicinity of Sukhatal area. It was also stated that the 2 lacs sq. feet of land cannot be said to be a large area and particularly in a town like Nainital and, therefore, the Reference Court made no deduction towards development charges.
18. The Reference Court ignored two sale deeds relied upon by the claimant/appellant on the ground that both the sale deeds are a bit away from the market and on a distance of about two furlongs from the acquired land. The Reference Court relied upon the sale instance of the area of 7500 sq. feet situates at Stoneley Compound and there is no mention in the judgment on what distance the Stoneley Compound is.
19. It is well settled law that even if the acquisition of a large chunk of the land even though the comparable sale of the similar land can be taken into account to arrive at the market value, the deduction of 33-1/ 3rd is to be made towards the development cost i.e. the normal deduction, however, the Reference Court gave a categorical finding that it is not a large tract of the land According to the Reference Court, it is not a large tract of land. The sale deed filed by the claimant/appellant should have been taken into consideration for the purpose of determining the just and proper market value of the compensation.
Point No. 1 :
20. The learned Counsel for the appellant placed reliance upon Section 75 and Section 47-A (as introduced in U.P. in 1969 Act U. P. Stamp Rules, 1942- Rule 340-A(2) -- Power of Collector to fix the circle rates. It has been vehemently submitted on the behalf of the claimant/appellant that the compensation with regard to the market value of the land under acquisition should have been awarded on the basis of the circle rates fixed by the Collector.
21. For just decision of the case, the provisions of the relevant rules and the sections aforementioned are necessary to be reproduced hereunder :--
22. Rule 340-A of U. P. Stamp Rules --
(a) Every Collector shall biennially supply to the District Registrar and such other officers as the State Government may specify, a copy of the statement showing classification of soil, circle rate and the average price of land appertaining to each such classification situate in every Pargana, corporation or local body of his district.
(b) and (c) xx xx xx xx
23. Relevant portion of Section 47A of Indian Stamp Act reads as under :--
Under-valuation of instrument (1)(a) :--If the marker value of any property, which is the subject of any instrument, on which duty is chargeable on market value of the property as set forth in such instrument is less than even the minimum value determined in accordance with the rules made under this Act, the registering officer appointed under the Registration Act, 1908, shall, notwithstanding anything contained in the said Act, immediately after presentation of such instrument, and before accepting it for registration and taking any action under Section 52 of the said Act, require the person liable to pay stamp duty under Section 29, to pay the deficit stamp duty as computed on the basis of the minimum value determined in accordance with the said rules and return the instrument for presenting again in accordance with Section 23 of the Registration Act, 1908.
Sub-section (2) of Section 47-A provides that on receipt of a reference under Sub-section (1), the Collector shall, after giving the parties a reasonable opportunity of being heard, and after holding an inquiry in such manner as may be prescribed by rules made under this Act, determine the market value of the property which is the subject of such instrument, and the proper duty payable thereon.
24. The learned Counsel for the appellant next contended that as far as the State of U. P. is concerned, for the purpose of calculation of stamp duty as per charging section proviso of Section 3 of the Act as applicable in the State of U. P. should not be read in isolation but harmoniously with Schedule 1-B of the Act, which is applicable to the State of U. P.
25. It was submitted that the rules framed under Rules 340, 340-A and 341 guide the activity of an authority to make the purpose contemplated under the Stamp Act, hence, the same would be mandatory as it regulates the purpose of the Act.
26. The learned Counsel for the appellant further contended that for the purpose of calculating the market value as contemplated under Section 23 of the Act which pari materia spirits and attracts the provisions of the Rules contained under Chapter 15 of the Stamp Rules, hence the rates fixed by the Collector under the Rules of the Stamp Act would be as a reasonable basis for the calculation of the value of the land sought to be acquired under Section 4 of the Act.
27. On the other hand, the learned Counsel for the respondent/State has placed reliance upon the Apex Court judgments cited below :--
1. Krishi Utpadan Mandi Samiti, Sahaswan Dist. Badaun through its Secretary v. Bipin Kumar, .
2. Ramesh Chandra Bansal v. District Magistrate/Collector, Ghaziabad, .
3. State of Punjab v. Mohabir Singh, .
4. Jawajee Nagnatham v. Revenue Divisional Officer, Adilabad, A. P., .
28. Learned Counsel for the appellant further contended that the counsel for the respondent strongly placed reliance on the judgment . In the said judgment of Jawajee Nagnatham, the Apex Court while dealing with Section 23 of the Act as well as Section 47A of the Stamp Act (as enacted by the A. P. State Legislature). In paras 4 and 5, the Apex Court has taken Section 47-A (as applicable in Andhra Pradesh) to be the charging section and has not taken into consideration the proviso of Section 3 of the Act and has preceded on the basis that since the basis Valuation Basic Register having no statutory sanction cannot be read in evidence for enhancement of market value. In the judgment, it was observed that the Basic Valuation Register was prepared in the official capacity by the Revenue Department or its Registering Officer of Andhra Pradesh. Hence, it cannot be taken as an evidence for calculation of the compensation under the Act. As remarked in para 5, it seems that it was not brought to the knowledge/notice of the Apex Court that Section 47-A as applicable in Andhra Pradesh, apart from it, the proviso of Section 3 was also not considered because the fact that Section 47-A excludes schedule 1-B of the Act which includes Article 23 for the conveyance prepared under Section 3 of the Act, hence the ratio propounded by the said judgment would not be applicable.
29. Learned Counsel for the appellant/ claimant further contended that for the reasons mentioned hereinafter, the ratio of Jawajee Nagnatham case (1994 AIR SCW 2812) (supra) will not be applicable so far as it relates to the State of U. P. for the following reasons :---
(a) In the State of Andhra Pradesh the contents of basic valuation register were based upon the wisdom of the Registering Officer and as such since it was not having a statutory force or originating from the provisions of the Act or the Rules it was not binding.
(b) Another reason for not accepting the basic valuation register as to be the basis of the reasons before the Apex Court no other provisions or Rules having statutory force has been brought to the notice of the Court.
(c) The basic valuation register was declined to be accepted as it was a unilateral decision of the Registering Officer of fixing the valuation of the land, hence, it was not binding.
(d) As before the Apex Court in the judgment rendered, it was not placed as to the source of power granted to the authorities for the preparation of the Basic Valuation Register.
30. In the instant case, the crucial question before us to be decided is whether the circle rates fixed by the Collector indicate the market value for the purpose of Section 23 of the Act or they are guidelines ?
31. The counsel for the respondent has also relied upon the case of Ramesh Chandra Bansal (supra) in which the Apex Court in para 5 observed as under:---
"The object of the Indian Stamp Act is to collect proper stamp duty on an instrument or conveyance on which such duty is payable. This is to protect the State revenue. It is a matter of common knowledge that in order to escape such duty by unfair practice, many a time under valuation of a property or lower consideration is mentioned in a sale deed. The imposition of stamp duty on sale deeds is on the actual market value of such property and not the value described in the instrument. Thus, an obligation is cast on the authority to properly ascertain its true value for which he is not bound by the apparent tenor of the instrument, He has to truly decide the real nature of the transaction and value of such property. For this, the Act empowers an authority to charge stamp duty on the instrument presented before it for registration. The market: value of a property may vary from village to village, from location to location and even may differ from the sizes of the area and other relevant factors, this apart there has to be some material before such authority as to what is the likely value of such property in that area. In its absence, it would be very difficult for such registering authority to assess the valuation of such instrument. It is to give such support to the registering authority that Rule 340-A is introduced. Under this, the Collector has to satisfy himself based on various factors mentioned therein before recording the circle rate, which would at best be the prima facie rate of that area concerned. This is merely a guideline, which helps the registering authority to assess the true valuation of a transaction in an instrument. This gives him materials to test prima facie whether the description of valuation instrument is proper or not. Under Section 47-A introduced by the U.P. Act 11 of 1969 conveys how a registering authority is to deal in a case where there is divergence in the valuation between what is described in an instrument and in the circle rate."
32. From a bare reading of Section 47-A as introduced by the U. P. Act 11 of 1969 of the Stamp Act, 1899 with Rules 340-A of the U. P. Stamp Rules, 1942, it is clear that the circle rate fixed by the Collector is not final but it is only a prima facie determination of rate of the area concerned only to give guidance to the Registering Authority to test prima facie whether the instrument has properly described the value of the property. The circle rate under this rule is neither final for the authority nor to one subjected to pay the stamp duty. So far Subsections (1) and (2) are concerned, they are very limited in their application as they only direct the registering authority to refer to the Collector for determination in case the property is under valued in such instrument. The circle rate does not take away the right of such person to show that the property in question is correctly valued as he gets an opportunity in case of under valuation to prove it before the Collector after reference is made. This also marks the dividing line for the exercise of the powers between the registering authority and the collector.
33. In the light of the pronouncement of the Apex Court in the cases of Ramesh Chandra Bansal (supra), as well as "State of Punjab v. Mohabir Singh "(supra) Jawaji Nagnatham (1994 AIR SCW 2812) (supra) and Krishi Utpadan Mandi Samiti Sahaswan (2004) 1 JT (SC) 344 : (AIR 2004 SC 2895) (supra), the guideline value either preparation or circulation or alteration or enhancement is an indicative price which the registering authority may fake into consideration to come to the prima facie view whether the instrument has been under valued and if such view is arrived at, he has to refer the same to the collector for determination. The registering officer has to register the instrument and refer the document to the Collector for determination of the market value and the stamp duty payable thereof. Therefore, the guideline value, either preparation or drafting or revision or circular issued, is of no consequence in so far as the person who is liable to pay the stamp duty, as whenever the registering authority comes to the conclusion that the instrument stands under valued, he has to complete the registration and forward the same to the collector for adjudication. The collector has to follow the procedure, afford opportunity and thereafter determine the market value as well as the stamp duty payable on the instrument. The guideline value is also not binding on the collector as he has to fix the market value of the properly which is the subject-matter of conveyance or settlement or any other instrument falling under Section 47-A independently and fix the market value as held by the Apex Court.
34. We are further fortified in our view as already held by the Apex Court in the case of Ramesh Chandra Bansal (supra) that the circle rate fixed by the collector is not final but. is only a prima facie assessment and it is open to both the authority or the person seeking to enhance the actual market value as per Section 23 of the Act. The circle rate fixed by the Collector is only a guideline and would only serve as prima. facie material available before the authority or Court. The value of the property always varies from place to place and it depends upon the location of the property and other facts also. No absolute higher or minimum value van be pre-determined.
35. The argument of the learned Counsel for the claimant-appellant that the circle rate ought to have been taken for determining the market value of the land under acquisition under Section 23 of the Land Acquisition Act has no force in view of the Apex Court judgment in the case of Ramesh Chandra Bansal (supra) as in that case the Apex Court has dealt with the provisions of Section 47-A as well as Rule 340-A of the Indian Stamps Act as applicable in the State of U. P. We may also mention that the Apex Court in the case of Krishi 'Utpadan Mandi Samiti, Sahaswan (2004) 1 JT(SC) 344 : (AIR 2004 SC 2895), has held "that the market value ought to be determined on the basis of sale deeds of comparable lands. Market Value cannot be determined on the basis of a basic valuation register maintained by the registering authority for collection of stamp duty. On facts held that the reference Court erred in fixing the value on the basis of the valuation register maintained by the registering authorities for collection of stamp duty."
36. Having considered the entire con troversy from all the four corners in the light of the aforesaid case laws, we hold that the reference Court rightly adopted the method for determining the market value for the purpose of awarding compensation on the basis of sale instances to arrive at the value of the land correctly. The market value ought to have been determined on the basis of sale deeds of the comparable lands. The market value cannot be determined on the basis of circle rates fixed by the collectors under Rule 340-A of the Stamp Rules and under Section 47-A of the said Act. The circle rate fixed by the Collector under this Section is only for the collection of stamp duty. Circle rate would not be a basis to determine the market value mentioned thereunder and in instrument brought for registration and it would not be a basis to determine the market value under Section 23 of the Act of the land acquired in area. Evidence of bona fide sales between willing vendor and vendee of the lands acquired or situated near about that land possessing same or similar potential value would furnish basis to determine market value. The burden of proof is always on the claimant to prove the prevailing market value as on the date of the Act of Notification published in the State Gazette under Section 4(1) of the Act with reference to the sale deeds of the same land or neighbouring land possessing similar potential value between wiling vendor and willing vendee or other relevant evidence in the reference Court. Hence, in view of the Apex Court judgment, this point is decided against the claimant/appellant.
Point Nos. and 3 :--
37. As both these points are interconnected, therefore they are being taken up together for decision in order to avoid a repetition of evidence.
38. The admitted facts are that the property "Craig Cottage" (Ahmad Lodge) measuring 4.56 acre land was acquired by the State for construction of residential buildings of the Kumaun University following the notification under Section 4 of the Act issued on 31-5-1980. It is also not disputed that this property lay in Sukhatal area within the municipal limits of Nainital. It is also not in dispute that the property under acquisition fell in a developing area and the land was having a great potential value.
38-A. After acquisition the S.L.A.O. has determined the market value of the acquired land relying on the sale deed dated .15-9-1979 executed by Sri J. B. Sanga in favour of Sri M. M. Zafar in respect of 7500 sq. ft. land at Stainley hall Compound for a consideration of Rs. 60.000/- i.e. @ Rs. 8 per sq. ft. However the S.L.A.O. made certain deductions considering the largeness of land, development charges etc. and ultimately passed an award @ Rs. 4,50 per sq. ft. Aggrieved, the claimants preferred reference before the III Additional District Judge, Nainital. The Reference Court, as mentioned earlier, framed necessary issues in the case. Regarding market value of the land, the Reference Court framed issue No. 1 and regarding deductions made by the S.L.A.O., it framed issue No. 4. Both the issues were taken up together for decision. Before the Reference Court, the claimants have filed two sale instances in documentary evidence and examined A.W. 1 M.P. Singh and A.W. 2 Ramesh Chandra Tripathi to substantiate their contention that the S.L.A.O, ought to have awarded cost of the land @ Rs. 15/-per sq. ft. The first sale deed relied upon by the claimant is dated 22 2-1979 executed by Ram Prakash and others in favour of Sri Govind Lal Sah and others in respect of a plot measuring 1531.59 sq. ft. situated at Waldrof Hotel Mallital Nainital for a consideration of Rs. 30,631.80. Another sale deed is of the same date executed by Sri Ram Prakash in favour of Sri Mahmood Ahmad in respect of a plot measuring 2126.39 sq. ft. lying at Waldrof Hotel Mallital Nainital for a consideration of Rs. 42526/-. A perusal of the sale-deeds relied upon by the claimant shows that the lands were sold @ Rs. 20/-per sq. ft. in each case. On the other hand, the State of U. P. filed exemplar sale deed dated 15-9-1979 executed by Sri J. B. Sanga in favour of Sri M. M. Zaffar in respect of 7500 sq. ft. land situate at Stenley Hall Compound for a consideration of Rs. 60,000/-and examined Sri Mohan Chandra Pant as O.P.W. 1 in oral evidence. The Reference Court after considering the entire material observed as follows :--
"The sale-deeds filed by the claimant are of Waldrof Hotel, Compound, Mallital Nainital. The rate works out to about Rs. 20.00 per sq. ft. in both the sale-deeds. The State of U. P. Opposite party has also filed a copy of the sale-:deed. The rate works out to be Rs. 8.00 per sq. ft. 7500 sq. ft. land has been sold for Rs. 60,000/-. It is the same sale deed upon which the Land Acquisition Officer has also relied. The sale-deeds filed by the claimant are near to the main market whereas the acquired land is bit away from the main market. The value of land near the main market certainly has more value whereas the land situated away from the market fetches less value. So the sale-deed filed by the claimant cannot provide a basis for determining the market rate of the acquired land which is about 2 furlongs away from the Waldrof Hotel Compound. I would, therefore, discard the exemplar sale deeds filed by the claimant."
39. It may be mentioned here that in order to determine the market value of the land under acquisition, the Apex Court in the case of H.P. Housing Board v. Bharat S. Negi, observed that "Land Acquisition Act, 1894, Section 23 -- Compensation -- Market value --Determination of -- Comparable sales method -- Average of comparable sale instances -- Held, while computing market value, all proved instances of comparable sales need to be taken into consideration." And in paragraph 5 of the judgment, the Apex Court observed as follows :--
"We have heard the parties. In our view, the High Court was absolutely wrong in excluding the two sale instances cited by the appellants. The High Court omitted to notice that the offer of Rs. 80,000/- per bigha had not been accepted by the claimants. In any event the offer was for Rs. 80,000/- per bigha as a consolidated amount. The appellants would not then have to pay the solatium and interest amounts. We are told, and it is not. disputed that the figure of Rs. 80,000/ - per bigha would, If solatium and interest is deducted, have gone down to less than Rs. 40,000/- per bigha. In our view the approach of the Reference Court was correct. As all sale instances were proved, they were all to be taken into consideration. If all the sale instances are taken into consideration the average would work out to Rs. 1,11,660 per bigha. But as all the sale instances are of small pieces of lands and the acquisition is of the large piece of land, a deduction of 33 1/3% must be made towards development cost. Thus the compensation would work out to Rs. 74,444 per bigha."
40. In the instant case, there were two sale instances filed and proved by the claimant and one sale instance relied upon by the State. Considering the entire facts and circumstances of the case, we are of the opinion that the principle laid down by the Apex Court in the above case would be the best method to work out the market value of the acquired land. As stated above, in the instant case there were three-sale instances, two filed from the side of the claimant and one relied upon by the State. The average of all the three comparable sale instances comes 20+20+8 = 48/3 = Rs. 16 per sq. ft. Accordingly we hold that the market value of the land under acquisition ought to have been fixed at Rs. 16./- per sq. ft. and deduction of 25% should have been made towards development cost as laid down by the Apex Court in the case of Kasturi v. State of Haryana . In that case it has been observed that :--
"The appellants herein did not establish that the entire area of 84 acres of land acquired was fully developed having all the facilities such as roads, drains, sewers, water, electricity lines and civic amenities. In order to convert the land in to plot for the purpose of construction of residential and commercial buildings certain area was to be earmarked for the above mentioned purposes in accordance with the law governing in the matter of creating layouts in addition to incurring of expenditure for the development area. Hence the claim of the appellants that there should have been no deduction out of the compensation amount determined for the entire area acquired is unsustainable. May be, the acquired land with potentiality for construction of residential and commercial buildings had some advantages, which aspect is taken note of by the High Court in giving cut of only 20% as against l/3rd normal deduction."
41. Subsequently, the Apex Court followed the view taken in the aforesaid case in the matter of V. Hanumantha Reddy (Dead) v. The Land Acquisition Officer and Mandal R. Officer, (2004) 1 LACC 631 : (AIR 2004 SC 1185). The ratio of the above decisions of the Apex Court is fully applicable to the present case before us. Although the land under acquisition was developed and having potential value but the same was not fully developed having all the facilities such as drain, sewers, water and civic amenities. In the facts and the circumstances of the present case, we hold that deduction of 25% on the market value of the (sic) will be just and proper, as mentioned earlier. Accordingly, the claimant-appellant is entitled to get compensation towards market value of the land acquired after deducting 25% from the rate of Rs. 16/- per sq. ft. which comes to Rs. 12/- per sq. ft. and the compensation needs to be determined at this rate.
42. It was submitted on behalf of the State-appellant that the vendor and vendee of the sale-instances were not examined before the Reference Court, therefore, the genuineness of the sale-deeds cannot be relied upon. We have considered the evidentiary value of the sale instances produced before the Reference Court. The submission of the learned Counsel for the State appellant is not tenable. We are of the considered view that Section 51A of the Land Acquisition Act, 1894 permits the production of a certified copy of the registered sale transaction in evidence without examination of the vendor and vendee. The genuineness of such document is rebuttable. The State led no evidence in rebuttal to dispute the genuineness of the sale transactions referred to above. All the three sale instances are certified copies. In the absence of any evidence in rebuttal, the sale instances referred to above were fully admissible in evidence. We are fortified in our view by the Apex court judgment in the case of "Cement Corporation of India v. Purya wherein while dealing with the scope and evidentiary value of the documents produced under Section 51A of the Land Acquisition Act, the Apex Court referred to its earlier decisions and observed in paragraph 31 as under :--
"Thus, the reasoning of this Court in Narasaiah case that Section 51A enables the party producing the certified copy of a sale transaction to rely on the contents of the document without having to examine the vendee or the vendor of that document, is the correct position in law. This finding in Nrasaiah case is also supported by the decision of this Court in the case of Mangaldas Raghavji Ruparel ."
43. So far as the contention of the claimant-appellant that the award of compensation towards trees and building existing on the acquired land is not adequate is concerned, we find that the claimant failed to examine any independent witness before the Reference Court. The S.L.A.O. awarded compensation of Rs. 69,000/- towards trees existing over the acquired land as well as Rs. 1,32,600/- for the building standing thereon. On these counts, the claimant demanded Rs. 1,24,500/- and Rs. 1,50,000/-respectively. We have scrutinized the statement of P.W. 1. He is the representative of the claimant itself. His statement cannot be given much importance on this score. The Reference Court has rightly rejected the contention of the claimant so far as compensation towards trees and building is concerned. No infirmity or illegality was pointed out to us to substantiate this contention.
44. For the reasons and the discussion aforementioned, the appeal preferred by the Collector, Nainital (F.A. No. 673 of 2001) is liable to be dismissed while the appeal preferred by the claimant M/s. Singh & Company (F.A. No. 175 of 2001) deserves to be partly allowed and the award made by the Reference Court stands modified to the above extent.
45. F.A. No. 175 of 2001 is partly allowed. The claimant-appellant is awarded compensation towards market value of the land acquired at the rate of Rs. 12/ per sq. ft. instead of Rs. 8/- per sq. ft. as held by the Reference Court. The compensation shall be worked out at the rate of Rs. 12/- per sq. ft. Rest of the findings recorded by the Reference Court regarding compensation towards trees and buildings as well as solatium @ 30% and the interest @ 12% per annum on the enhanced amount of compensation are maintained. No order as to costs.
46. Accordingly F.A. No. 673 of 2001 is dismissed. No order as to costs.