Allahabad High Court
Shiv Ram Singh vs State Of U.P. And Another on 22 May, 2019
Author: Surya Prakash Kesarwani
Bench: Surya Prakash Kesarwani
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 59 1. Case :- FIRST APPEAL No. - 575 of 2003 Appellant :- Shiv Ram Singh Respondent :- State Of U.P. And Another Counsel for Appellant :- Ramesh Kumar Shukla,J.P.S.Chauhan,R.M.Yadav,Radha Krishna Yadav Counsel for Respondent :- S.C. 2. Case :- FIRST APPEAL No. - 577 of 2003 Appellant :- Kamalvir Singh And Another Respondent :- State Of U.P. And Another Counsel for Appellant :- Ramesh Kumar Shukla,J.P.S.Chauhan,Radha Krishna Yadav Counsel for Respondent :- S.C. 3. Case :- FIRST APPEAL No. - 588 of 2003 Appellant :- Chandra Bhan Singh And Another Respondent :- State Of U.P. And Another Counsel for Appellant :- Ramesh Kumar Shukla,Radha Krishna Yadav Counsel for Respondent :- S.C. 4. Case :- FIRST APPEAL No. - 590 of 2003 Appellant :- Sukkhey And Others Respondent :- State Of U.P. And Another Counsel for Appellant :- Ramesh Kumar Shukla,Radha Krishna Yadav Counsel for Respondent :- S.C. Hon'ble Surya Prakash Kesarwani,J.
1. Heard Sri J.P.S. Chauhan, learned counsel for the claimants-appellants and Sri Girish Vishwakarma, learned standing counsel for the State-respondents in this batch of first appeals.
2. Briefly stated facts of the present case are that by notification dated 09.06.1989 under Section 4(1) of the Land Acquisition Act, 1894 (hereinafter referred to as 'the Act'), land of three villages, namely Manoharwala measuring 4.243 acres, Sikandarpur Basi measuring 2.806 acres and Begampur measuring 2.366 acres, total 9.415 acres were acquired. All these aforesaid three villages fall in Pargana Akbarabad, Tehsil Najibabad, District Bijnor. The aforesaid land was acquired for construction of Begampur Miner. Notification under Section 6 of the Act was issued on 06.06.1990. Possession was transferred on 18/19.09.1990. Award was made by the S.L.A.O. on 31.07.1991 offering compensation @ Rs.19,998.55 per acre for Sawai Doyam quality soil and Rs.27,337.58 per acre for Matiyar Doyam quality soil of village Manoharwala. Dissatisfied with the offer made, the claimants-appellants filed a reference under Section 18 of the Act being L.A.R. No.105 of 1993, which has been dismissed by the impugned judgment dated 27.02.2003 passed by the Additional District Judge, Court No.3, Bijnor. Similar judgments have been passed in other connected first appeals. Aggrieved with the judgments of the reference court, the claimants-appellants have filed the present first appeals.
3. It is also relevant to mention that the First Appeal Nos.575 of 2003, 577 of 2003 and 590 of 2003, relate to the acquired land of village Manoharwala while the First Appeal No.588 of 2003, relates to the acquired land of village Begampur. The S.L.A.O. determined compensation of land of village Begampur at Rs.9,684.84 per acre for Matiyar Doyam quality soil, Rs.7,676.32 per acre for Sawai Doyam quality soil and Rs.21,994.33 per acre for Sawai Awwal quality soil.
4. Learned counsel for the claimants-appellants submits that by sale deed exemplar dated 24.09.1988 filed in evidence disclosed that 2 biswas land for Rs.5000/- of village Manoharwa was sold by the claimant-appellant Sukkhey (First Appeal No.590 of 2003) to one Smt. Kranti Devi. The selling rate comes to Rs.60,000/- per acre. Following this sale deed exemplar, reference court in another reference No.272 of 1992 (Sumer and others vs. State of U.P.) determined the compensation @ Rs.60,000/- per acre for construction of Begampur miner. The First Appeal No.508 of 1997 filed by the State of U.P. against the aforesaid judgment dated 23.01.1996 in L.A.R. No.272 of 1992 was dismissed as a consequence of rejection of delay condonation application. He, therefore, submits that the claimants-appellants are also entitled to the same rate of compensation .
5. Learned standing counsel supports the impugned judgment.
6. I have carefully considered the submissions of learned counsels for the parties and perused the record.
7. The only evidence in the form of sale deed exemplar filed by the claimants-appellants was a sale deed dated 31.05.1988 registered on 24.09.1988 whereby only two biswas land was sold by the claimant-appellant Sukkhey to one Smt. Kranti Devi for Rs.5000/-. The sale deed exemplar does not even disclose boundaries of the land sold. In his cross-examination, P.W.-1 admitted that the land was sold for abadi. He also admitted that Kranti Devi was in need of that land and, therefore, whatever consideration was demanded, the same was paid by Kranti Devi. The P.W.-2 also made the same version in his cross-examination. The facts as afore-noted goes to show that the consideration shown in the aforesaid sale deed, does not reflect normal market price of similar land. Before the reference court in Reference No.272 of 1992 decided on 23.01.1996 either this evidence was not available or it was completely ignored. That apart, even though the area acquired was large as compared to the small piece of land sold under the aforesaid sale deed by Sukkhey to Kranti Devi but no deduction towards largeness of the acquired area was applied by the reference court in that judgment to determine the market value. The First Appeal No.508 of 1997 filed by the State of U.P. to challenge the aforesaid judgment of the reference court was dismissed on account of rejection of delay condonation application. There was no judgment on merit. Under the circumstances, claimants-appellants are not entitled for the same rate of compensation in the present appeals.
8. Considering the fact that the land sold by a sale deed exemplar dated 31.05.1988 registered on 24.09.1988 does not represent a normal transaction, therefore, even if in the absence of any other evidence on record, this sale deed exemplar is considered for determination of market value of the acquired land of the claimants-appellants, then a minimum of 50% deduction needs to be allowed to determine the market value of the acquired land. Since no other evidence is available on record, therefore, allowing a deduction of 50% to the alleged selling rate disclosed by the sale deed dated 31.05.1988 registered on 24.09.1988, market value would come to about Rs.30,000/- per acre.
PRINCIPLES FOR DETERMIANTION OF COMPENSATION:-
9. The provisions of Section 23(1) of the Act providing for determination of compensation, has been authoritatively explained by Hon'ble Supreme Court in series of the judgments.
10. In Chimanlal Har Govinddas v. Special Land Acquisition Officer (1988)3 SCC 751 (Para 4), Hon'ble Supreme Court laid down broad principles to be followed in determination of compensation of land acquired under Section 4 of the Act, which has been consistently followed and has also been followed in recent decisions in Union of India vs. Dyagala Devamma and others, (2018) 8 SCC 485 and Manoj Kumar and others v. State of Haryana and others (2018)13 SCC 96 (Para 25), as under:
"4. The following factors must be etched on the mental screen:
(1) A reference under section 18 of the Land Acquisition Act is not an appeal against the award and the Court cannot take into account the material relied upon by the Land Acquisition officer in his Award unless the same material is produced and proved before the Court.
(2) So also the Award of the Land Acquisition officer is not to be treated as a judgment of the trial Court open or exposed to challenge before the Court hearing the Reference. It is merely an offer made by the Land Acquisition officer and the material utilised by him for making his valuation cannot be utilised by the Court unless produced and proved before it. It is not the function of the Court to sit in appeal against the Award,approve or disapprove its reasoning, or correct its error or affirm, modify or reverse the conclusion reached by the Land Acquisition officer, as if it were an appellate court.
(3) The Court has to treat the reference as an original proceeding before it and determine the market value afresh on the basis of the material produced before it.
(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.
(5) The market value of land under acquisition has to be determined as on the crucial date of publication of the notification under Section 4 of the Land Acquisition Act (dates of Notifications under sections 6 and 9 are irrelevant).
(6) The determination has to be made standing on the date line of valuation (date of publication of notification under Section 4) as if the valuer is a hypothetical purchaser willing to purchase land from the open market and is prepared to pay a reasonable price as on that day. It has also to be assumed that the vendor is willing to sell the land at a reasonable price.
(7) In doing so by the instances method, the Court has to correlate the market value reflected in the most comparable instance which provides the index of market value.
(8) Only genuine instances have to be taken into account. (Some times instances are rigged up in anticipation of Acquisition of land).
(9) Even post notification instances can be taken into account (1) if they are very proximate,(2) genuine and (3) the acquisition itself has not motivated the purchaser to pay a higher price on account of the resultant improvement in development prospects.
(l0) The most comparable instances out of the genuine instances have to be identified on the following considerations:
(i) proximity from time angle,
(ii) proximity from situation angle.
(11) Having identified the instances which provide the index of market value the price reflected therein may be taken as the norm and the market value of the land under acquisition may be deduced by making suitable adjustments for the plus and minus factors vis-a-vis land under acquisition by placing the two in juxtaposition.
(12) A balance-sheet of plus and minus factors may be drawn for this purpose and the relevant factors may be evaluated in terms of price variation as a prudent purchaser would do.
(13) The market value of the land under acquisition has there after to be deduced by loading the price reflected in the instance taken as norm for plus factors and unloading it for minus factors.
(14) The exercise indicated in clauses (11) to (13) has to be undertaken in a common sense manner as a prudent man of the world of business would do. We may illustrate some such illustrative (not exhaustive) factors:
Plus factors Minus factors
1. smallness of size
1. largeness of area
2. proximity to a road
2. situation in the interior at a distance from the Road
3. frontage on a road
3. Narrow strip of land with very small frontage compared to depth
4. nearness to developed area
4. lower level requiring the depressed portion to be filled up
5. regular shape
5. remoteness from developed locality
6. level vis-a-vis land under acquisition
6. some special disadvantageous factor which would deter a purchaser
7. special value for an owner of an adjoining property to whom it may have some very special advantage (15) The evaluation of these factors of course depends on the facts of each case. There cannot be any hard and fast or rigid rule. Common sense is the best and most reliable guide. For instance, take the factor regarding the size. A building plot of land say 500 to 1000 sq. yds cannot be compared with a large tract or block of land of say l0000 sq. yds or more. Firstly while a smaller plot is within the reach of many, a large block of land will have to be developed by preparing a lay out, carving out roads, leaving open space, plotting out smaller plots, waiting for purchasers (meanwhile the invested money will be blocked up) and the hazards of an entrepreneur. The factor can be discounted by making a deduction by way of an allowance at an appropriate rate ranging approximately between 20 percent to 50 percent to account for land required to be set apart for carving out lands and plotting out small plots. The discounting will to some extent also depend on whether it is a rural area or urban area, whether building activity is picking up, and whether waiting period during which the capital of the entrepreneur would be looked up, will be longer or shorter and the attendant hazards.
(16) Every case must be dealt with on its own fact pattern bearing in mind all these factors as a prudent purchaser of land in which position the Judge must place himself.
(17) These are general guidelines to be applied with understanding informed with common sense."
(Emphasis supplied by me) What is Market Value:-
11. Thus, as per settled principle of law, compensation for the land acquired has to be determined at market value. Market value is the price that a willing purchaser would pay to a willing seller for the property having due regard to its existing condition with all its existing advantages and its potential possibilities when led out in most advantageous manner excluding any advantage due to carrying out of the scheme for which the property is compulsorily acquired. The determination of market value is the prediction of an economic event viz. a price outcome of hypothetical sale expressed in terms of probabilities. For ascertaining the market value of the land, the potentiality of the acquired land should also be taken into consideration. Potentiality means capacity or possibility for changing or developing into state of actuality.
Principles for Determination of Market Value:-
12. Important principles for determination of market value of acquired land as settled by Hon'ble Supreme Court in various judgments may be summarized as under:-
13. (i) While fixing the market value of the acquired land, comparable sales method of valuation is preferred than other methods of valuation of land such as capitalisation of net income method or expert opinion method. Comparable sales method of valuation is preferred because it furnishes the evidence for determination of the market value of the acquired land at which a willing purchaser would pay for the acquired land if it had been sold in the open market at the time of issue of notification under Section 4 of the Act. However, comparable sales method of valuation of land for fixing the market value of the acquired land is not always conclusive but subject to the following factors:-
(a) Sale must be a genuine transaction,
(b) the sale deed must have been executed at the time proximate to the date of issue of notification under Section 4 of the Act,
(c) the land covered by the sale must be in the vicinity of the acquired land,
(d) the land covered by the sales must be similar to the acquired land
(e) the size of plot of the land covered by the sales be comparable to the land acquired.
(f) if there is dissimilarity in regard to locality, shape, site or nature of land between land covered by sales and land acquired, it is open to the Court to proportionately reduce the compensation for acquired land.
(ii) The amount of compensation cannot be ascertained with mathematical accuracy. A comparable instance has to be identified having regard to the proximity from time angle as well as proximity from situation angle. For determining the market value of the land under acquisition, suitable adjustment has to be made having regard to various positive and negative factors vis-a-vis the land under acquisition.
(iii) For ascertaining the market value of the land, the potentiality of the acquired land should also be taken into consideration. Potentiality means capacity or possibility for changing or developing into state of actuality.
(iv) Deduction not to be done when land holders have been deprived of their holding 15 to 20 years back and have not been paid any amount.
(v) When there are several exemplars with reference to similar lands, it is the general rule that the highest of the exemplars, if it is satisfied, that it is a bonafide transaction has to be considered and accepted. When the land is being compulsorily taken away from a person, he is entitled to the highest value which similar land in the locality shown to have fetched in a bona fide transaction entered into between a willing purchaser and a willing seller near about the time of the acquisition. (Ref. (2012) 5 S.C.C 432, Mehrawal Khewaji Trust (Registered ), Faridkot and others Vs. State of Punjab and others).
(vi) In view of Section 51A of the Act, 1894 certified copy of sale deed is admissible in evidence, even the vendor or vendee thereof is not required to examine themselves for proving the contents thereof. This, however, would not mean that contents of the transaction as evidenced by the registered sale deed would automatically be accepted. The legislature advisedly has used the word 'may'. A discretion, therefore, has been conferred upon a Court to be exercised judicially, i.e., upon taking into consideration the relevant factors. Only because a document is admissible in evidence, the same by itself would not mean that the contents thereof stand proved. Having regard to the other materials brought on record, the Court may not accept the evidence contained in a deed of sale. (Ref. (2004) 8 S.C.C 270 para 28 and 38, Cement Corpn. Of India Ltd. Vs. Purya and others).
(vii) While fixing the market value of the acquired land, the Land Acquisition Collector is required to keep in mind the following factors:
(a) Existing geographical situation of the land.
(b) Existing use of the land.
(c) Already available advantages, like proximity to National or State Highway or road and/ or developed area,
(d) Market value of other land situated in the same locality/ village/ area or adjacent or very near the acquired land.
(viii) Section 23(1) of the Act lays down what the Court has to take into consideration while Section 24 lays down what the Court shall not take into consideration and have to be neglected. The main object of the enquiry before the Court is to determine the market value of the land acquired.
(ix) The question whether a land has potential value or not, is primarily one of fact depending upon its condition, situation, user to which it is put or is reasonably capable of being put and proximity to residential, commercial or industrial areas or institutions. The existing amenities like water, electricity, possibility of their further extension, whether near about town is developing.
(x) In fixing market value of the acquired land, which is undeveloped or under-developed, the Courts have generally approved deduction of 1/3rd of the market value towards development cost except when no development is required to be made for implementation of the public purpose for which land is acquired {Reference: (2011) 8 SCC 91, Valliyamal and another vs. Special Tehsildar Land Acquisition and another (Paras 13 to 19)}.
(xi) Deduction of "development cost" is the concept used to derive the "wholesale price" of a large undeveloped land with reference to the "retail price" of a small developed plot. The difference between the value of a small developed plot and the value of a large undeveloped land is the "development cost".[Ref. (2012) 7 S.C.C 595 para 21, Sabhia Mohammed Yusuf Abdul Hamid Mulla (dead) and others Vs. Special Land Acquisition Officer and (2010) 1 SCC 444 (Paras- 24 & 25), Subh Ram vs. State of Haryana].
(xii) The circle rate filed by the Collector or valuation register maintained by the Revenue Authorities under the Stamp Act, 1899 are irrelevant and cannot form a valid criteria to determine market value of land acquired under the Act, 1894, unless such determination is under a statutory obligation and after following a prescribed procedure. {Reference: Jawajee Nagnatham v. Revenue Divisional Officer, Adilabad, A.P. and others, (1994) 4, SCC 595, the Land Acquisition Officer v. Jasti Rohini (1995)1 SCC 717, U.P. Jal Nigam v. M/s Kalra Properties (P) Ltd. (1996) 3 SCC 124, Krishi Utpadan Mandi Samiti v. Bipin Kumar, (2004) 2 SCC 283}.
DEDUCTIONS
14. The principles regarding deduction to be applied while determining market value of a land for compensation under the Act, 1894, has been applied by Hon'ble Supreme Court, providing for deduction ranging up to 75% depending on the nature of land, its situation and stage of development etc., vide Brig. Sahib Singh Kalha Vs. Amritsar Improvement Trust, (1982) 1 SCC 419 (deductions between 20% and 33%), Administrator General of West Bengal Vs. Collector, Varanasi, (1988) 2 SCC 150 ( upheld deduction of 40%), Chimanlal Hargovinddas Vs. Special Land Acquisition Officer, Poona and another (supra),( deduction between 20% to 50%), Land Acquisition Officer Revenue Divisional Officer, Chottor vs. L. Kamalamma (Smt.) Dead by and others, (1998) 2 SCC 385, ( deduction of 40% as development cost), Kasturi and others vs. State of Haryana (supra), (1/3rd deduction was upheld on development),Land Acquisition Officer vs. Nookala Rajamallu and others, (2003) 12 SCC 334, ( 53% deduction), V. Hanumantha Reddy (Dead) Versus Land Acquisition Officer, (2003) 12 SCC 642, (37% deduction towards development), Viluben Jhalejar Contractor Versus State of Gujarat, (2005) 4 SCC 789, (20 to 50% towards development), Atma Singh Versus State of Haryana and another, (2008)2 SCC 568, (20% deduction towards largeness of area), Subh Ram and others Vs. State of Haryana and others, (supra), (where valuation of a large area of agricultural or undeveloped land has to be determined on the basis of sale price of a small developed plot, standard deductions would be 1/3rd towards infrastructural space and 1/3 towards infrastructural developmental cost, i.e. 2/3rd % i.e. 67%), Andhra Pradesh Housing Board Versus K. Manohar Reddy and others, (2010) 12 SCC 707, (deductions on account of development could vary between 20% to 75%), Special Land Acquisition Officer and another Versus M.K. Rafiq Sahib, (2011) 7 SCC 714, ( 60% deduction).
15. Recently, in Major General Kapil Mehra Vs. Union of India and another (2015)2 SCC 262, Hon'ble Supreme Court again observed that while fixing market value of acquired land, Land Acquisition Collector is required to keep in mind the following factors:-
(i) Existing geographical situation of land.
(ii) Existing use of land.
(iii) Already available advantages, like proximity to National or State Highway or road and/ or developed area,
(iv) Market value of other land situated in the same locality/ village/ area or adjacent or very near the acquired land.
16. COMPARATIVE SALE METHOD OF MARKET VALUE
17. It is settled law that market value of the land acquired is determined with reference to the market sale of comparable land in the neighbourhood by a willing seller to a willing buyer on or before the date of preliminary notification i.e. under Section 4(1) of the Act 1894, as that would give a fair indication of market value.
18. In Bhupal Singh Vs. State of Haryana, (2015) 5 SCC 801 Hon'ble Supreme Court specifically considered similar question of determination of market value under Section 23 of the Act and held that the fair market value of the acquired land is required to be determined on the basis of the market rate of the adjacent lands similarly situated to the acquired lands prevailing on the date of acquisition or/ and prior to acquisition but not subsequent to the date of acquisition.
19. In the case of Union of India and another Vs. Raghubir Singh (dead) by LRs. Etc. (1989) 2 SCC 754 (para-33), Constitution Bench of Hon'ble Supreme Court considered the provisions of Section 23 and Section 11 of the Act and and held as under:
"33. We find substance in the contention of the learned Attorney General that if Parliament had intended that the benefit of enhanced solatium should be extended to all pending proceedings it would have said so in clear language. On the contrary, as he says, the terms in which Section 30(2) is couched indicate a limited extension of the benefit. The Amendment Act has not been made generally retrospective with effect from any particular date, and such retrospectivity as appears is restricted to certain areas covered by the parent Act and must be discovered from the specific terms of the provision concerned. Since it is necessary to spell out the degree of retrospectivity from the language of the relevant provision itself, close attention must be paid to the provisions of Section 30(2) for determining the scope of retrospective relief intended by Parliament in the matter of enhanced solatium. The learned Attorney General is also right when he points out that it was never intended to define the scope of the enhanced solatium on the mere accident of the disposal of a case in appeal on a certain date. Delays in the superior Courts extend now to limits which were never anticipated when the right to approach them for relief was granted by statute. If it was intended that Section 30(2) should refer to appeals pending before the High Court or the Supreme Court between April 30, 1982 and September 24, 1984, they could well refer to proceedings in which an award had been made by the Collector from anything between 10 to 20 years before. It could never have been intended that rates of compensation and solatium applicable to acquisition proceedings initiated so long ago should now enjoy the benefit of statutory enhancement. It must be remembered that the value of the land is taken under Section 11(1) and Section 23(1) with reference to the date of publication of the notification under Section 4(1), and it is that date which is usually material for the purpose of determining the quantum of compensation and solatium. Both Section 11(1) and Section 23(1) speak of compensation being determined on the basis, inter alia, of the market value of the land on that date, and solatium by Section 23(2), is computed as a percentage on such market value."
(Emphasis supplied by me)
20. In the case of Ashok Kumar and another Vs. State of Haryana, (2016) 4 SCC 544 (Para-12), Hon'ble Supreme Court considered situation of two acquired lands and held as under:
"In the case of the appellants herein, it is an admitted position that the properties do not abut the national highway. Admittedly, it is situated about 375 yards away from the national highway and it appears that there is only the narrow Nahan Kothi Road connecting the properties of the appellants to the national highway. Therefore, it will not be just and proper to award land value of Rs.250/- per square yard, which is granted to the property in adjoining village. Having regard to the factual and legal position obtained above, we are of the considered view that the just and fair compensation in the case of appellants would be Rs.200/- per square yard."
21. With respect to factors of comparable sales, Hon'ble Supreme Court in Major General Kapil Mehra (supra) has referred to its earlier decision in Urban Water Supply and Drainage Board and Others Versus K.S. Gangadharappa and another, (2009) 11 SCC 164, and has observed that element of speculation is reduced to minimum if underlying principles of fixation of market value with reference to comparable sales are satisfied, i.e.,(i) when sale is within a reasonable time of the date of notification under Section 4(1); (ii) it should be a bona fide transaction; (iii)) it should be of the land acquired or of the land adjacent to the land acquired; and (iv) It should possess similar advantages.
Relevance of Previous Award/ Judgments for Determining Compensation:-
22. In a recent decision in the case of Manoj Kumar and other v. State of Haryana and others (2018)13 SCC 96 (Paragraphs 11 to 20 and 23), Hon'ble Supreme Court considered the relevance of previous award/judgment for determination of compensation under Section 23 of the Act, 1894, which are summarised as under:
(I) In such cases, where such judgments/awards are relied on as evidence, though they are relevant, but cannot be said to be binding with respect to the determination of the price, that has to depend on the evidence adduced in the case. Such decisions in other cases cannot be adopted without examining the basis for determining compensation whether sale transaction referred to therein can be relied upon or not and what was the distance, size and also bonafide nature of transaction before such judgments/awards are relied on for deciding the subsequent cases. It is not open to accept determination in a mechanical manner without considering the merit. Such determination cannot be said to be binding.
(II) The determination of compensation in each case depends upon the nature of land and the evidence adduced in each case. It may be that better evidence has been adduced in later case regarding the actual value of property. It is not proper to ignore the evidence adduced in the case at hand.
(III) The compensation cannot be determined by blindly following the previous award/judgment. It has to be considered only a piece of evidence not beyond that. Court has to apply the judicial mind and is supposed not to follow the previous awards without due consideration of the facts and circumstances and evidence adduced. In the case in question.
(IV) The current value reflected by comparable sale deeds is more reliable and binding for determination of compensation in such cases award/judgment relating to an acquisition made before 5 to 10 years cannot form the safe basis for determining compensation.
(V) The awards and judgment in the cases of others not being inter parties are not binding as precedents. Trend of the courts to follow them blindly is probably under the misconception of the concept of equality and fair treatment. The courts are being swayed away and this approach in the absence of and similar nature and situation of land is causing more injustice and tantamount to giving equal treatment in the case of unequal's.
(VI) As per situation of a village, nature of land its value differ from the distance to distance even two to three-kilometer distance may also make the material difference in value. Land abutting Highway may fetch higher value but not land situated in interior villages.
(VII) The previous awards/judgments are the only piece of evidence at par with comparative sale transactions. The similarity of the land covered by previous judgment/award is required to be proved like any other comparative exemplar. In case previous award/judgment is based on exemplar, which is not similar or acceptable, previous award/judgment of court cannot be said to be binding. Such determination has to be out rightly rejected. In case some mistake has been done in awarding compensation, it cannot be followed on the ground of parity. An illegality cannot be perpetuated. Such award/judgment would be wholly irrelevant.
(VIII) To base determination of compensation on a previous award/ judgment, the evidence considered in the previous judgment/ award and its acceptability on judicial parameters has to be necessarily gone into, otherwise, /gross injustice may be caused to any of the parties. In case some gross mistake or illegality has been committed in previous award/judgment of not making deduction etc. and/or sufficient evidence had not been adduced and better evidence is adduced in case at hand, previous award/judgment being not inter-parties cannot be followed and if land is not similar in nature in all aspects it has to be out-rightly rejected as done in the case of comparative exemplars. Sale deeds are at par for evidentiary value with such awards of the court as court bases its conclusions on such transaction only, to ultimately determine the value of the property.
(IX) To rely upon judgment/award in case it does not form part of evidence recorded by reference court, an application under Order 41 Rule 27 is to be filed to adduce evidence and if it is allowed opposite party has to be given opportunity to lead evidence in rebuttal. The award/judgment cannot be taken into consideration while hearing arguments unless they form part of evidence in the case. An appellate court should be satisfied that the additional evidence is required to enable it either to pronounce judgment or for any other substantial cause.
(X) Section 43 of the Evidence Act enacts that judgments other than those falling under Sections 40 to 42 are irrelevant unless they fall under some other provision of the Evidence Act; and, even if they do fall under any such other provision, all that is relevant, under Section 43 of the Evidence Act, is "the existence" of such judgment, order, or decree provided it "is a fact in issue, or is relevant under some other provision of this Act. An obvious instance of such other provision is a judgment falling under Section 13 of the Evidence Act. The illustration to Section 13 of the Evidence Act indicates the kind of facts on which the existence of judgments may be relevant.
(XI) The existence of a judgment would not prove the value of some piece of land not dealt with at all in the judgment admitted in evidence. Even slight differences in situation can, sometimes, cause considerable differences in value.
(XII) Judgments to be relevant if they relate to similarly situated properties and contain determinations of value on dates fairly proximate to the relevant date in a case.
23. In Printers House Pvt. Ltd. vs. Mst. Saiyadan (dead) by L.Rs. & Ors. (1994) 2 SCC 133, A three-Judge Bench of Hon'ble Supreme Court had considered previous awards and sale exemplar and held these to be similar for determination of market value. It observed:
"16. If the comparable sales or previous awards are more than one, whether the average price fetched by all the comparable sales should form the ''price basis' for determination of the market value of the acquired land or the price fetched by the nearest or closest of the comparable sales should alone form the ''price basis' for determination of the market value of the acquired land, being the real point requiring our consideration here, we shall deal with it. When several sale-deeds or previous awards are produced in court as evidence of comparable sales, court has to necessarily examine every sale or award to find out as to what is the land which is the subject of sale or award and as to what is the price fetched by its sale or by the award made therefor.
17. If the sale is found to be a genuine one or the award is an accepted one, and the sale or award pertains to land which was sold or acquired at about the time of publication of preliminary notification under the Act in respect of the acquired land, the market value of which has to be determined, the court has to mark the location and the features (advantages and disadvantages) of the land covered by the sale or the award. This process involves the marking by court of the size, shape, tenure, potentiality etc. of the land. Keeping in view the various factors marked or noticed respecting the land covered by the sale or award, as the case may be, presence or absence of such factors, degree of presence or degree of absence of such factors in the acquired land the market value of which has to be determined, should be seen. When so seen, if it is found that the land covered by the sale or award, as the case may be, is almost identical with the acquired land under consideration, the land under the sale or the market value determined for the land in the award could be taken by the court as the ''price basis' for determining the market value of the acquired land under consideration. If there are more comparable sales or awards of the same type, no difficulty arises since the ''price basis' to be got from them would be common. But, difficulty arises when the comparable sales or awards are not of the same kind and when each of them furnish a different ''price basis'. This difficulty cannot be overcome by averaging the prices fetched by all the comparable sales or awards for getting the ''price basis' on which the market value of the acquired land could be determined. It is so, for the obvious reason that such ''price basis' may vary largely depending even on comparable sales or awards. Moreover, ''price basis' got by averaging comparable sales or awards which are not of the same kind, cannot be correct reflection of the price which the willing seller would have got from the willing buyer, if the acquired land had been sold in the market. For instance, in the case on hand, there are three claimants. The plots of their acquired land, which are five in number, are not similar, in that, their location, size, shape vary greatly. One plot of land of one claimant and another plot of another claimant appear to be of one type. Another plot of land of one of them appears to be of a different type. Yet another plot of the second of them appears to be different. Insofar as third claimant's plot of land is concerned, it appears to be altogether different from the rest. Therefore, if each of the claimants were to sell her/his respective plots of land in the open market, it is impossible to think that they would have got a uniform rate for their lands. The position cannot be different if the comparable sales or awards when relate to different lands. Therefore, when there are several comparable sales or awards pertaining to different lands, what is required of the court is to choose that sale or award relating to a land which closely or nearly compares with the plot of land the market value of which it has to determine, and to take the price of land of such sale or award as the basis for determining the market value of the land under consideration."
(Emphasis supplied by me)
24. In Karan Singh & Ors. vs. Union of India (1997) 8 SCC 186, Hon'ble Supreme Court held that evidence has to be adduced to show similarity of the land in question to the one covered by previous award/judgment and observed:
"8. Learned counsel for the appellants then urged that the High Court erroneously discarded Ext. A-11 which was an award in respect of a land at Village Jhilmil Tahirpur on the ground that it was not a previous judgment of the Court. The land comprised in the award was acquired under notification issued under Section 4 of the Act on 27-7-1981. By the said award, the Court awarded compensation @ Rs 625 per sq. yd. It has earlier been seen that in the present case the notification issued under Section 4 of the Act was earlier in point of time than the notification issued for acquisition of land comprised in Ext. A-11. There is no quarrel with the proposition that judgments of courts in land acquisition cases or awards given by the Land Acquisition Officers can be relied upon as a good piece of evidence for determining the market value of the land acquired under certain circumstances. One of the circumstances being that such an award or judgment of the court of law must be a previous judgment. In the case of Pal Singh v. Union Territory of Chandigarh(1992) 4 SCC 400, it was observed thus: (SCC pp. 402-03, para 5) "But what cannot be overlooked is, that for a judgment relating to value of land to be admitted in evidence either as an instance or as one from which the market value of the acquired land could be inferred or deduced, must have been a previous judgment of court and as an instance, it must have been proved by the person relying upon such judgment by adducing evidence aliunde that due regard being given to all attendant facts and circumstances, it could furnish the basis for determining the market value of the acquired land." Following this decision, we hold that it is only the previous judgment of a court or an award which can be made the basis for assessment of the market value of the acquired land subject to party relying on such judgment to adduce evidence for showing that due regard being given to all attendant facts it could form the basis for fixing the market value of acquired land."
(Emphasis supplied)
25. In view of the above discussion, all the afore-noted first appeals are partly allowed. The claimants-appellants shall be entitled to the compensation for their acquired land @ Rs.30,000/- per acre along with other statutory benefits and interest. The respondent shall compute the amount of compensation accordingly within a month from today and shall pay it to the claimants-appellants within next two months after adjusting the amount, if any already paid.
26. All the first appeals are partly allowed and the impugned judgments are modified to the extent indicated above.
Order Date :- 22.05.2019 NLY