Andhra HC (Pre-Telangana)
The Land Acquisition Officer, Sub ... vs Shaik Bahileem And Others Etc. on 31 January, 1995
Equivalent citations: AIR1996AP14, 1995(2)ALT629
ORDER
Y. Bhaskar Rao
1. The lands in question comprised in an extent of acres 5.00 in R.S. No. 45/1 and acres 1-07 1/2 cents in R.S. Nos. 45/1, 2, 3 and 4 of Bhavanipuram village, Vijayawada were acquired for providing house-sites to the weaker sections. The notification under Section 4(1) of the Land Acquisition Act was issued on 5-1-1979. The Land Acquisition Officer, after conducting enquiry, passed an award on 26-3-1981 fixing compensation at Rs. 34,200/- per acre. The claimants being not satisfied with the said compensation sought reference to the Civil Court under Section 18 of the Land Acquisition Act. The claimants claimed compensation at Rs. 2,00,000/- per acre. On reference, the cases are numbered as O.P. Nos. 264, 265, 267, 266 and 263 of 1981. The Civil Court, after considering the oral and documentary evidence on record, and after hearing the arguments of both the sides, enhanced compensation to Rs. 1,52,875/- per acre. Assailing those judgments the Land Acquisition Officer preferred appeals - A.S. Nos. 2801/82, 2721/81, 2508/82, 506/83 and 3379/ 81. Except A.S. No. 506/ 83 all the other appeals were dismissed by a learned single Judge of this Court vide order dated 23-11-1988 confirming the judgments of the Civil Court. Against the judgment in A.S. No. 3379/88 the present L.P.A. No. 71/80 was filed by the Land Acquisition Officer. As A.S. No. 506/83 is not disposed of, it is also posted along with the present Letters Patent Appeal. Therefore, both these are disposed of by this common judgment as the lands in both the cases were acquired by a single notification.
2. The learned Government Pleader appearing for the Land Acquisition Officer contended that the enhancement of the compensation made by the Civil Court is too excessive; the lower Court erred in relying on a sale-deed, Ex. A-1, dated 5-5-1978, which was in respect of a small extent of land of 573 sq. yards; the land under Ex. A-1 was sold for a consideration of Rs. 18,000/- which comes to Rs. 1,52,875/- per acre; the lower Court ought not to have relied on a sale-deed which was in respect of a very small extent of land except when there is no other documentary evidence on record to show the market value of the land. He further contended that when there is no evidence on record, the Civil Court has to confirm the award; but the Civil Court erred in enhancing compensation; therefore, the present Letters Patent Appeal and the Appeal suit were filed. It is further contended that the acquired lands were agricultural lands and were not fit for sale as house-sites and that therefore fixation of market value basing on Ex. A-1 is not correct. It is further contended that the lower court erred in not deducting anything towards expenses for development when the acquired land is undeveloped agricultural land particularly when a sale-deed of small plot is relied on.
3. The learned Counsel appearing for the claimants contended that the village Bhavanipuram is just adjacent to the Vijayawada municipal area and the same was also in- cluded in the municipal area on 20-8-1981; therefore, the compensation awarded is too meagre compared to the market value of the land prevailing in that area. It is further contended that the appeals filed against the judgments of the Civil Court awarding the same compensation in respect of similar lands which were acquired under the same notification were already dismissed and became final and, therefore, those judgments would operate as res judicata and the present appeals have to be dismissed as the same cannot be proceeded with.
4. In view of the abovesaid contentions the main point that arises for decision is what is the proper market value to be paid as compensation for the acquired lands.
5. To decide what is the proper market value to be paid to the claimants, the following points arise for consideration in these appeals.
(1) Whether the sale under Ex. A-1 is a genuine sale or not:
In respect of A.S. No. 506/83, P.Ws. 1 to 3 were examined and Ex. A-1 was marked. P.W. 1 is the son of the claimant, P. W. 2 is the attestor of the original of Ex. A-1, dated 5-5-1978 and P.W. 3 is the scribe of Ex. A-1 P.W. 1 deposed that the claimant is his father and five acres of land in R.S. No. 45/1 was acquired by the Government. The Notification under Section 4(1) of the Land Acquisition Act was issued on 5-1-1979 and the award was passed on 26-3-1981. The Land Acquisition Officer awarded Rs. 34.200/- per acre whereas claim was at Rs.2,00,000/-per acre. Ex. A-1 is the extract of the registered sale-deed which shows that 573 sq. yards of land in S. No. 33 was sold for Rs. 18,000/-which comes to Rs. 1,52,875/-per acre and the said sale corresponds to item No. 5/78 referred to in the award. The said land is just 100 yards away from the acquired land. He further deposed that all around the acquired lands, mills, RTC workshop, foundries, etc., exist besides the lands being divided into plots ready for sale as house-sites and also there are several houses in that area. Therefore, the Land Acquisition Officer must have relied on Ex. A-1. He deposed that the land sold under Ex. A-1 is inferior to the acquired lands. P.W. 2 stated that he was the attest or of Ex. A-1. In his presence an amount of Rs. 12,000/- and odd was paid by the vendee to the vendor and Rs. 5.000/- was adjusted towards a pro note debt due by the vendor to the vendee and thus the sale consideration was paid under Ex. A-1. No suggestion was put to the witnesses saying that the entire consideration was not paid. On the other hand, P.W. 1 stated that the entire consideration was paid and P.W. 3 who is the scribe of Ex. A-1l also stated that the entire consideration was paid.
Sri N. V. Suryannarayana Murthy, the learned Counsel for the Land Acquisition Officer, contended that nobody would purchase such a small extent of agricultural land and that even if the land was sold it could have been sold as agricultural land but not as house-site. Therefore, the sale under Ex. A-1 cannot be taken into consideration. We are not able to agree with him. It is to be noticed that this Court as well as the Supreme Court of India has laid down time to time that where number of registered documents are not available but only a single document of sale for a small piece of land is available and if the same is proved to be genuine, it can be relied on for the purpose of fixation of market value of a vast extent of land subject to the condition of making adequate deductions and the land is having a potential value for house-sites.
Nobody was examined on behalf of the Land Acquisition Officer. Even though P.Ws. 1 to 3 were cross-examined at length nothing was elicited to discredit their evidence. Therefore, the claimants have proved that the sale of 573 sq. yards under Ex. A-1 is genuine sale.
(2) The next question is whether A-1 being a sale for a small piece of land, can be relied on or not. In Administrator General of W. B. v. Collector, Varanasi, , it is held by the Supreme Court that the price fetched for small plots cannot form safe bases for valuation Of large tracts and the prices fetched for small developed plots cannot be directly adopted in valuing large extents except, however, after making necessary deductions for development expenses. The principle laid down in the above judgment is that where there is no sale-deed for a large area of land, the sale-deeds for small extents of lands also can be taken into consideration. But as the said price reflects only retail price, sufficient deduction has to be made taking into consideration all the amenities to be provided to the acquired land, having regard to the facts and circumstances of each case. Therefore, we are not able to agree with the contention of Sri N. V. Suryanarayana Murthy that the sale-deed, Ex. A-1, under which a small extent of 573 sq. yards of land was sold cannot be taken into consideration at all.
Therefore, we think it just and proper that the market value of the lands acquired can be fixed relying on Ex. A-1.
(3) Now the question that arises for consideration is what is the deduction that has to be made for the purpose of converting the land as house-sites so that the value of the house-sites would be on par with that of the market value mentioned in Ex. A-1.
The lands in question were acquired for providing house-sites to the weaker sections in the village of Bhavanipuram. By the date of issuance of notification under Sec. 4(1), the village was not included in the municipal are a and it was a Gram Panchayat. Therefore, any deduction which has to be made must be made keeping in view the village as a Gram Panchayat. In Administrator Gen. of W.B. v. Collector, Varanasi, (supra) it is laid down by the Supreme Court at paragraph 6 as follows:
"It is trite proposition that prices fetched for small plots cannot form safe basis for valuation of large tracts of land as the two are not comparable properties. The principle that evidence of market value of sales of small, developed plots is not safe guide in valuing large extents of land with potentialities for urban use has to be understood in its proper perspective. The principle requires that prices fetched for small developed plots cannot directly be adopted in valuing large extents. However, if it is shown that the large extent to be valued does admit of and is ripe for use for building purposes, that building lots that could be laid-out on the land would be good selling propositions and that valuation on the basis of the method of a hypothetical lay-out could with justification be adopted, then in Valuing such small, laid-out sites the valuation indicated by sale of comparable small sites in the area at or about the time of the notification would be relevant. In such a case, necessary deductions for the extent of land required for the formation of roads and other civic amenities; expenses of development of the sites by laying out roads, drains, sewers, water and electricity lines, and the interest on the 'outlays' for the period of deferment of the realisation of the price; the profits on the venture etc., are to be made. Deductions for land required for roads and other developmental expenses can, together, come up to as much as 53%. Accordingly, the prices fetched for small plots cannot directly be applied in the case of large areas, for the reason that the former reflects the 'retail' price of land and the latter the 'wholesale' price."
The lower court has not made any deductions from the price fixed for the acquired lands. It is not disputed that the lands acquired are of a vast extent and these are acquired for providing house-sites to the weaker sections. It is not the case of the claimants that there were already roads, electricity lines, water tap connections or wells, and sewerage facilities in the acquired lands. Therefore, to make the acquired lands fit for house-sites, roads must be laid, electricity lines must be drawn and water facilities have also to be provided. The Supreme Court has laid down that minimum 20% of space is required for laying roads apart from the expenditure to be incurred for laying roads, giving electricity connections and providing drinking water facilities. It is also evident from the evidence that one road is abutting S.No. 45 and nearabout the surrounding area there are developed housing colonies and that in the nearabout area lands were sold as house-site plots. Therefore, keeping all these in view we think it just and proper that if a deduction of one third is made it will meet the ends of justice.
(4) The next question is whether the judgments dismissing the three appeals -- A.S. Nos. 2801 / 81, 2721 / 81 and 2508/ 82 filed by the Land Acquisition Officer which arose out of the same notification operate as res judicata or not.
There is no dispute that the above appeals were heard and disposed of by a learned single Judge of this Court against which no Letters Patent Appeals were filed and the judgments in those cases became final. Regarding A.S. No. 506/ 83, it is not disposed of and the land involved in this case is also situate in the same Bhavanipuram village and was acquired under the same notification. Similarly, the lands involved in L.P.A.No.71/90 are also situate in the same village and were acquired under the same notification. It is also to be noticed that the claimants in each original petition are different. It is also not in dispute that all the lands involved in these cases were acquired under the same notification and all the lands are part and parcel of S.No. 45. The oral evidence also shows that the lands are adjacent to the road.
The learned counsel for the claimants contended that the civil court fixed compensation at Rs. 1,52,875/- per acre in all the five original petitions against which five appeals were filed. Four appeals were dismissed by the learned single Judge confirming the judgments of the civil court awarding compensation at Rs. 1,52,875/- per acre and only against the judgment in one original petition, i.e., O.P. No. 263/81, the Letters Patent Appeal was filed. Against the judgments in the other three appeals suits no Letters Patent Appeals were filed and the judgments became final. The entire land involved in all the cases is acquired under one notification and out of only one plot of land in R.S.No. 45. Therefore, when those three judgments became final no interference can be made in this Letters Patent Appeal and the same is liable to be dismissed as the judgments in the other three appeals against which no Letters Patent Appeal was filed operate as res judicata on that simple ground. Therefore, it is contended, no deduction can be made towards development costs as no such deduction was made by the learned single Judge or by the civil court in other original petitions.
The learned counsel relied upon a judgment in Sheodan Singh v. Daryao Kunwar, . In that case two suits having common issues were decided by the trial court on merits. Two appeals were filed against them. One of them was dismissed on the ground of bar of limitation. Then the question that arose was whether the decision in the former appeal would operate as res judicata, to the other appeal. Considering the facts of that case and as in both the suits the parties are the same and issues are also common, the Supreme Court held that the judgment in the appeal which was dismissed as barred by limitation operates as res judicata. The facts of that case are quite different from the facts of the present case. Next, reliance was also placed on the judgment in Bhagwathula v. Special Tahsildar and L.A. Officer, Visakha-patnara Municipality, . The facts of this case are also similar to those of Sheodan Singh v. Daryao Kunwar, (supra). Those facts will not apply to the present case.
It is thirdly contended that the principles of res judicata as laid down in S. 11 of the Code of Civil Procedure as well as the general principles of res judicata as laid down by the Constitution Bench of the Supreme Court in Gulabchand v. State of Gujarat, , will apply. It is to be noticed that the Supreme Court has elaborately laid down the principles of res judicata and the general principles of res judicata. But the said principle has to apply according to the facts of each case. As laid down by the Supreme Court, S. 11 of the Code of Civil Procedure is not exhaustive and the general principles of res judicata also apply. In Land Acquisition Officer, City Improvement Trust, Bangalore v. H. Narayanaiah, , it is held by the Supreme Court that7 the judgment between other parties is a relevant piece of evidence under Ss. 11 and 13 of the Evidence Act but will not operate as res judicata. The principle of res judicata applies between the same parties provided the issue is the same and a finality is arrived at. But in this case, different parties are involved. The principle of res judicata as laid down under S. 11 of the Code of Civil Procedure or the, general principles of res judicata as stated by the Supreme Court in the aforesaid decision will apply where the parties to the judgments are the same and the issues are also the same and where the earlier judgment is finally decided between the same parties by the competent court. But, in the present case, the claimants are different in each case. Therefore, the question of applicability of res judicata does not arise.
The learned counsel also relied on a judgment in State of U.P. v. Babu Ram, AIR 1955 All 2 (sic). In that case, references were decided by a common order and the rate of compensation fixed in all the references was also same. An appeal was filed against the awards made in all references exempt one. The question that arose in that case was whether the appeal is tenable or not. In view of the principle laid down by the Supreme Court in the abovesaid cases, we are not able to follow this decision.
It is relevant to refer to the judgment in City Improvement Trust, Bangalore v. H. Narayanaiah, (supra) wherein the Supreme Court held that the judgment between the other parties may be a relevant evidence under Ss. 11 and 13 of the Evidence Act but the same cannot Operate as res judicata. Therefore, the market value fixed in the other three appeals by the civil court which is confirmed by a learned single Judge of this Court is only a relevant piece of evidence but cannot operate as res judicata. Therefore, we are not able to agree with the contention of the learned counsel for the claimants. In Narahari v. Shanker, , the Supreme Court was dealing with a case where from the decree of trial Court in favour of the plaintiff two separate appeals were filed by two sets of the defendants. The appellate Court allowed both the appeals and dismissed the plaintiffs suit by one judgment and ordered a copy of the judgment to be placed on the file of the other connected appeal. Two decrees were prepared and the plaintiff preferred, two appeals. One of the appeals was dismissed as time barred. Then the question arose whether the other appeal can be decided on merits or whether res judicata will apply. Considering the said question the Supreme Court held that since it is a single suit in which two decrees were prepared in appeal and against them two appeals were filed, the dismissal of one appeal as time barred does not operate as res judicata as the other appeal survives as the decrees arise out of a single suit and it is sufficient to decide the issues in that surviving appeal. The principle laid down in the said judgment was followed by this Court in Natesa Chettiar v. N. Krishnaiah, . Further the judgment in Nar-hari v. Shankar, (supra) was referred to in Sheodan Singh v. Daryao Kunwar, (supra) and was distinguished on the ground that the suit was one in which two decrees were, passed and, therefore, the question, of res judicata did not arise and the principles laid down therein are not overruled.
6. Therefore, in view of the above stated facts and circumstances of the case, we hold that the market value of the acquired lands be fixed after deducting one third of the amount from Rs. 1,52,875/- per acre which comes to Rs. 1,01,917/- (rounded off to Rs. 1,02,000). The claimants are not entitled for the benefit under S.23(1-A) of the Act as the award of the Land Acquisition Officer was made on 26-3-1981 which is earlier to the amendment to the Land Acquisition Act which came into force on 30-4-1982. Therefore, the claimants are not entitled to the additional amount as decided by the Supreme Court in K. S. Paripoornan v. State of Kerala, 1994 AIR SCW 4861.
7. The claimants are entitled for 30% solatium and interest at the rate of 15% as per the provisions of the Amended Act.
8. L.P.A.No. 71/90 and A.S.No. 506/83 are partly allowed as indicated above. No costs.
9. Order accordingly.