Allahabad High Court
Agra Development Authority vs Nafisha Begum And 10 Othrs. on 25 July, 2019
Author: Surya Prakash Kesarwani
Bench: Surya Prakash Kesarwani
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR (Judgement reserved on 28.05.2019) (Judgement delivered on 25.07.2019) Court No. - 05 1. Case :- FIRST APPEAL No. - 733 of 2017 Appellant :- Agra Development Authority Respondent :- Nafisha Begum And 10 Othrs. Counsel for Appellant :- Jagannath Maurya,M.C . Chaturvedi Counsel for Respondent :- Rahul Agarwal 2. Case :- FIRST APPEAL No. - 212 of 2017 Appellant :- Agra Development Authority Thru Vice Chairman Respondent :- Kalua Ram And 2 Others Counsel for Appellant :- Jagannath Maurya,J.N.Sharma Counsel for Respondent :- M C Chaturvedi,Rahul Agarwal 3. Case :- FIRST APPEAL No. - 341 of 2018 Appellant :- Agra Development Authority Respondent :- Shri Kanhaiyalal And 3 Others Counsel for Appellant :- Suresh C. Dwivedi,Sri M.C. Chaturvedi Counsel for Respondent :- Ashok Kumar Tripathi (Now Ashok Tripathi) 4. Case :- FIRST APPEAL No. - 345 of 2018 Appellant :- Agra Development Authority Respondent :- Doctors Sahkari Grih Nirman Samiti Limited And 3 Others Counsel for Appellant :- Suresh C. Dwivedi,Sri M.C. Chaturvedi Counsel for Respondent :- Ashok Kumar Tripathi (Now Ashok Tripathi) 5. .Case :- FIRST APPEAL No. - 346 of 2018 Appellant :- Agra Development Authority Respondent :- Sri Sher Singh And 5 Others Counsel for Appellant :- Suresh C. Dwivedi,M.C. Chaturvedi Counsel for Respondent :- Ashok Kumar Tripathi (Now Ashok Tripathi) 6. Case :- FIRST APPEAL No. - 262 of 2019 Appellant :- Agra Development Authority Respondent :- Raj Grah Sah. Avas Samiti Ltd. And Another Counsel for Appellant :- Suresh C. Dwivedi,Sri M.C. Chaturvedi Counsel for Respondent :- Ashok Kumar Tripathi (Now Ashok Tripathi) 7. Case :- FIRST APPEAL No. - 269 of 2019 Appellant :- Agra Development Authority Respondent :- Satya Narain Jain (Deceased) And 2 Others Counsel for Appellant :- Suresh C. Dwivedi,Sri M.C. Chaturvedi Counsel for Respondent :- Ashok Kumar Tripathi (Now Ashok Tripathi) 8. Case :- FIRST APPEAL No. - 270 of 2019 Appellant :- Agra Development Authority Respondent :- Rajni Verma And 3 Others Counsel for Appellant :- Suresh C. Dwivedi,M.C. Chaturvedi Counsel for Respondent :- Ashok Kumar Tripathi (Now Ashok Tripathi),Ashok Kumar Tripathi (Now Ashok Tripathi) 9. Case :- FIRST APPEAL No. - 274 of 2019 Appellant :- Agra Development Authority Respondent :- Rajni Verma And 3 Others Counsel for Appellant :- Suresh C. Dwivedi,Sri M.C. Chaturvedi Counsel for Respondent :- Ashok Kumar Tripathi (Now Ashok Tripathi) 10. Case :- FIRST APPEAL No. - 347 of 2019 Appellant :- Agra Development Authority Jaipur House Agra Respondent :- Aleem Khan And 5 Others Counsel for Appellant :- Suresh C. Dwivedi,M.C. Chaturvedi Counsel for Respondent :- Ashok Kumar Tripathi (Now Ashok Tripathi) 11. Case :- FIRST APPEAL No. - 350 of 2019 Appellant :- Agra Development Authority, Jaipur House, Agra Respondent :- Narendra Prasad (Since Deceased) And 14 Others Counsel for Appellant :- Suresh C. Dwivedi,Sri M.C. Chaturvedi Counsel for Respondent :- Rahul Agarwal 12. Case :- FIRST APPEAL No. - 351 of 2019 Appellant :- Agra Development Authority Jaipur House Agra Respondent :- Surajbhan Singh And 4 Others Counsel for Appellant :- Suresh C. Dwivedi,Sri M.C. Chaturvedi Counsel for Respondent :- Rahul Agarwal 13. Case :- FIRST APPEAL No. - 352 of 2019 Appellant :- Agra Development Authority Jaipur House Agra Respondent :- Mahendra Kumar (Since Deceased) And 18 Others Counsel for Appellant :- Suresh C. Dwivedi Counsel for Respondent :- Rahul Agarwal 14. Case :- FIRST APPEAL No. - 353 of 2019 Appellant :- Agra Development Authority, Jaipur House, Agra Respondent :- Sultan Khan (Since Deceased) And 15 Others Counsel for Appellant :- Suresh C. Dwivedi Counsel for Respondent :- Rahul Agarwal 15. Case :- FIRST APPEAL No. - 387 of 2019 Appellant :- Agra Development Authority Jaipur House Agra Respondent :- Sri Munna Lal And 3 Others Counsel for Appellant :- Suresh C. Dwivedi,M.C. Chaturvedi Counsel for Respondent :- Ashok Kumar Tripathi (Now Ashok Tripathi) 16. Case :- FIRST APPEAL No. - 388 of 2019 Appellant :- Agra Development Authority, Jaipur House, Agra Respondent :- Prem Wati And 16 Others Counsel for Appellant :- Suresh C. Dwivedi,Sri M. C. Chaturvedi (Senior Advocate) Counsel for Respondent :- Ashok Kumar Tripathi (Now Ashok Tripathi) 17. Case :- FIRST APPEAL No. - 389 of 2019 Appellant :- Agra Development Authority, Agra Respondent :- Bhed Singh (Since Deceased) And 15 Others Counsel for Appellant :- Suresh C. Dwivedi,M.C. Chaturvedi Counsel for Respondent :- Rahul Agarwal 18. Case :- FIRST APPEAL No. - 390 of 2019 Appellant :- Agra Development Authority Jaipur House Agra Respondent :- Munshi Lal And 4 Others Counsel for Appellant :- Suresh C. Dwivedi Counsel for Respondent :- Rahul Agarwal 19. Case :- FIRST APPEAL No. - 354 of 2019 Appellant :- Agra Development Authority Jaipur House Agra Respondent :- Natthilal And 4 Others Counsel for Appellant :- Suresh C. Dwivedi Counsel for Respondent :- Rahul Agarwal Hon'ble Surya Prakash Kesarwani,J.
1. Heard Sri M.C. Chaturvedi, learned Senior Advocate assisted by Sri J.N. Maurya and Sri Suresh Chandra Dwivedi, learned counsels for the appellants and Sri Rahul Agarwal alongwith Sri Ashok Kumar Tripathi and Sri Kishan Jain, learned counsels for the claimants-respondents.
2. This batch of first appeals and cross objections arise from one and the same land acquisition notification for land of village Basai Mustaqil and involve common facts and questions, therefore, with the consent of the learned counsels for the parties, all these first appeals have been heard together treating the First Appeal No.733 of 2017 as the leading first appeal. These first appeals were heard on several occasions at length including on 13.05.2019, 15.05.2019, 20.05.2019, 27.05.2019 and 28.05.2019. In First Appeal No.733 of 2017, appellants and respondents, both have filed paper books. Cross objections have been filed by the claimants-respondents in First Appeal Nos.212 of 2017, 387 of 2019, 262 of 2019, 269 of 2019, 270 of 2019, 274 of 2019 and 347 of 2019.
FACTS
3. Briefly stated facts of the present case are that by notification under Section 4(1) of the Land Acquisition Act, 1894 (hereinafter referred to as 'the Act') dated 30.01.1989 published in the official gazette on 30.01.1989 and subsequently, published in local newspapers on 14.02.1989 and 15.02.1989, land measuring 734.50 acres of villages Basai Mustquil, Tora, Chamroli and Lakavali, Tehsil and District Agra, falling partly within municipal limit (chungi ander) and partly outside the municipal limit (chungi bahar) was acquired for "Taj Nagari Phase-II Scheme" of the Agra Development Authority (for short 'ADA'). Public notice of the acquisition was published by the Special Land Acquisition Officer (for short the SLAO) on 04.04.1989. Notification under Section 6(1) read with Section 17(1) of the Act was issued on 08.02.1990. Possession was taken on 30.03.1991.
4. By the award dated 29.02.1992, the SLAO determined compensation of all the acquired land of chungi ander @ Rs.130/- per square yard and for all the acquired land of chungi bahar @ Rs.97.50 per square yard.
5. Dissatisfied with the award, the appellant ADA filed a Writ Petition No.31481 of 1992, which was dismissed by this Court by order dated 05.01.2000. Aggrieved, the appellant ADA filed S.L.P. No.7561 of 2000, which was allowed by Hon'ble Supreme Court by judgment dated 07.02.2001 on the ground that the appellant- ADA had no notice under Section 50 of the Act for adducing evidence and, therefore, the matter was remitted back to the SLAO for making award afresh.
6. On remand, the SLAO made his award on 05.11.2001 determining market value for the acquired land of chungi ander @ Rs.49/- per square yard and for the acquired land of chungi bahar @ Rs.39.20 per square yard. Dissatisfied with the offer made by the award dated 05.11.2001 passed by the SLAO, several land owners filed references under Section 18 of the Act which have been decided by the impugned judgment dated 08.02.2017 in leading Land Acquisition Case No.47 of 2004 (Nafisha Begum and others vs. The Collector, Agra and others) passed by Sri Sanjeev Fauzdar, Additional District Judge/ Presiding Officer, Nagar Mahapalika (Nagar Nigam) Tribunal, Agra. The reference court determined the market value for the acquired land of chungi ander @ Rs.610/- per square yard and for the acquired land of chungi bahar @ Rs.405/- per square yard. Aggrieved with this judgment, the appellant- ADA has filed the present bunch of first appeals.
7. All these first appeals involve acquisition of land of village Basai Mustaquil. Particulars of land acquisition references and the acquired khasra plot numbers which are subject matter of first appeals, are as under:
Sl.No. First Appeal No. Arising from LAR No. Claimant's acquired Khasra Plot No. (subject matter of Appeals) 1 733 of 2017 47 of 2004 Nafisha Begam & others Vs. Collector 473 2 212 of 2017 968 of 2003 Kalua & Ors Vs. Collector 1994,1997,2000 3 341 of 2018 979 of 2003 Kanahaiya Lal Vs. Collector 274 4 345 of 2018 365 of 2004 Doctors Sahkari Grih Nirman Samiti Vs.Collector 185M,186M,189M,190Ka 5 346 of 2018 373 of 2004 Sher Singh Vs. Collector 327 6 262 of 2019 526 of 2004 Raj Grih Sahkari Awas Samiti Vs. Collector 236 7 269 of 2019 525 of 2004 Sri Satyanarayan Jain Vs. State 203 8 270 of 2019 361 of 2004 Smt. Rajni Verma Vs. Collector 1429,1431 9 274 of 2019 363 of 2004 Smt. Rajni Verma Vs. Collector 1209,1219 10 347 of 2019 375 of 2004 Raj Grih Sahkari Awas Samiti Vs. Collector 364 11 350 of 2019 111 of 2008 Narendra Prasad & Ors Vs. Collector 225 12 351 of 2019 437 of 2004 Surajbhan & Ors Vs. Collector 340 13 352 of 2019 106 of 2008 Mahendra Kumar & Ors Vs. Collector Agra 248,2043Ka,2082 Ka,2083Ka,2084 ka,2087 Ka,2115 Ka,2128 Ka, 2129Ka,2136 Ka,2137 Ka 14 353 of 2019 977 of 2003 Sultan Khan & Ors. Vs. Collector 450 15 387 of 2019 44 of 2004 Sri Munna Lal and another Vs. Collector 273 16 388 of 2019 972 of 2003 Smt. Premwati & Ors Vs. Collector 345 17 389 of 2019 421 of 2004 Bhed Singh & Ors Vs. Collector 289,288,290,291 18 390 of 2019 128 of 2004 Munshi Lal & Ors. Vs. Collector & Ors 251 19 354 of 2019 46 of 2004 Natthilal and Amit Mittal vs. State 338
8. Before the reference court, the appellants have filed in L.A.R. No.47 of 2004, the following sale deed exemplars of land of village Basai Mustaqil:
First Appeal No. (arising from the judgment in the above L.A.R.) Sale Deed Exemplar and Date Buyer and Seller Khasra Plot No. Area Consideration Rate(per sq. meter) Rs.
733 of 2017 109C/24.2.88 Mawasi/Kanhaiya Kunj Sahkari Awas Samiti 141 3 bighas (6912 sq. meters 240000/-
34.72 110C/28.5.88 Munesh Garg/Madhuban Nagar Sahkari Awas Samiti 203 2-12-12 bigha : 7248.93 square yard 2 lac 27.59 111C/28.5.88 Munesh Garg/Madhuban Nagar Sahkari Awas Samiti 453 2-11-17 bigha 2 lacs 112C/8.6.88 Nathi Lal/Darbhesh Sahkari Awas Samiti 180 3-0-12 bigha 1,65,000/-
113C/13.10.88 Angad/Baldev Sahkari Awas Samiti 1330,1327 1-6-0 bigha 84,500/-
114C/22.10.88 Babu Lal/Sri Ram Sahkari Awas Samiti 1228,1260 0-6-0 bigha 21,000/-
115C/15.9.88 Panchsheel Sahkari Awas Samiti/Nirmal Sahkari Awas Samiti 1998,1999 1-16-0 bigha 1,33,200/-
116C/11.10.88 Shabhudin/Surajmakhi Gramin Sahakari Awas Samiti 383 1-0-0 50,000/-
117C/15.2.88 Adarsh Sahkari Grih Nirman Samiti/Maya Nagar Sahkari Awas Samiti 1806,1890,1778,1779,1789 10 biswa 50,000/-
9. With the consent of all the learned counsels for the parties, the following questions were framed on 13.05.2019 for determination in this bunch of first appeals:-
"Questions"
(a) Whether the date 30.01.1989 when the notification under Section 4(1) of the Act was published in the official gazette or the date 04.04.1989 when the public notice was published by the SLAO, shall be the relevant date for determination of compensation of the market value of the acquired land?
(b) Whether the market value of the acquired land determined by the court below is lawful and adequate?
(c) Whether consideration received by ADA in auction sale of developed plots in "Taj Nagari Phase-I Scheme", can be made basis for determination of market value of the land acquired by the appellant -ADA for the scheme in question i.e. "Taj Nagari Phase-II" particularly when sale deed exemplars were filed in evidence by the ADA for determination of market value of the acquired land under the present acquisition, i.e. "Taj Nagari Phase-II"."
SUBMISSIONS ON BEHALF OF THE APPELLANTS:-
10. Sri M.C. Chaturvedi, learned senior advocate appearing for the appellants submits as under:
(i) Market value of land acquired under the Land Acquisition Act, 1894 (hereinafter referred to as 'the Act') as per principles laid down in Section 23 of the Act, is to be determined as on the date of publication of Notification under Section 4(1) of the Act. Therefore, the date 30.01.1989, when the Notification under Section 4(1) of the Act was published in the Gazette, shall be the relevant date for determination of the market value under Section 23 (1) of the Act and not the date of public notice given by the Special Land Acquisition Officer i.e. 04.04.1989. Reliance is placed on the judgment of Deo Karan & others Vs. State of U.P. 2017(1) ADJ 389 (para 13, 14 and 15) and judgment in First Appeal No.467 of 2006 decided on 25.3.2019 (paras 20, 23, 25 and 27). He also refers to the judgments of Hon'ble Supreme Court relied in these two judgments.
(ii) The Reference Court has illegally relied on auction sale of developed commercial plots of "Taj Nagari Phase-I Scheme" which can not be made basis to determine market value of the huge land measuring 734.50 acres for developing "Taj Nagari Phase-II Scheme".
(iii) Consideration received by Agra Development Authority for lease of developed commercial plots in the year 1989 of "Taj Nagari Phase-I Scheme" can not be made basis to determine market value of totally undeveloped agricultural land acquired by Notification under Section 4(1) of the Act dated 30.01.1989. Besides this the lease/sales of plot of "Taj Nagari Phase-I Scheme" as relied by the court below are subsequent to the date of the present acquisition.
(iv) The appellants have led documentary evidences in the form of sale deed exemplars which include certain sale deeds of land of Khasra plots which were subsequently acquired under the present acquisition. Thus, these sale deeds filed in evidence were relevant and were good exemplars to determine the market value of land acquired under the present acquisition but the court below has committed a manifest error of law and facts not to rely upon these sale deeds exemplars.
(v) No sale deed exemplar was filed in evidence by the claimants-respondents.
(vi) The reference court committed manifest error of law to rely upon lease deed dated 11.06.1993 of plot No.1 and lease deed dated 15.07.1993 of plot No.5 of "Taj Nagari Phase-I" Scheme as instances for determining market value of the land acquired under the present acquisition, i.e. land acquisition notification 30.01.1989, inasmuch as the land of "Taj Nagari Phase-I" Scheme was acquired in the year 1983 and more than 40% land thereof was left for parks and roads etc. and huge investment was made by the appellants to construct roads, parks, electric line and drainage etc. Huge staff was employed to supervise the work. Larger part of the "Taj Nagari Phase-I" Scheme developed by the appellants was for residential purposes. Only few plots of very prime location were earmarked for commercial purposes, i.e. for hotels etc. Therefore, auction sale of the aforesaid developed commercial plot No.1 and 5 of "Taj Nagari Phase-I" Scheme, cannot be compared with the land of the present acquisition whereby agricultural land was acquired in the year 1989. That apart, as per terms of the lease deed of the aforesaid commercial plot Nos.1 and 5, the auction amount was to be paid by the purchaser in several instalments. Thus, the reference court has committed a manifest error of law and facts to treat the lease deeds dated 11.06.1993 and 15.07.1993 as exemplars to determine the market value of the land acquired under the present acquisition dated 30.01.1989.
(vii) The judgment of the reference court is contrary to the law settled by Hon'ble Supreme court in Chamanlal Hargovind Das vs. S.L.A.O., (1988) 3 SCC 751 : AIR 1988 SC 1652. The reference court completely failed to follow the guiding principles of Section 23 of the Act and the principles laid down in Chamanlal Hargovind Das (supra) for determination of market value.
(viii) The aforesaid two commercial plots leased on 11.06.1993 and 15.07.1993 of "Taj Nagari Phase-I" Scheme are situate from the land acquired under the present acquisition and the claimants' land is situate far away from the link road.
(ix) The market value means the price which a willing purchaser would pay to the willing seller for the property having due regards to its existing conditions on the relevant date excluding any advantage which may accrue in future in consequence of carrying out of the developed scheme for which the property is being acquired but the reference court completely ignored the settled principles of law and awarded exorbitant compensation @ Rs.405/- per square yard, which is wholly illegal and arbitrary.
(x) The relevant sale deed exemplars including the sale deed exemplar of a land acquired under the present acquisition, were filed in evidence by the appellants but the reference court committed a manifest error of law and facts in not giving any weight to it and rely on wholly irrelevant exemplars being lease deeds dated 11.06.1993 and 15.07.1993 relating to all commercial plots of "Taj Nagari Phase-I" Scheme.
(xi) The claimants-respondents have completely failed to adduce any evidence to establish either the compensation awarded by the S.L.A.O. is insufficient or that the sale deed exemplars relied by the appellants herein are not good exemplars. The respondents could not demonstrate by any evidence that the sale deed exemplars filed in evidence by the appellants before the reference court are not good exemplars.
(xii) The written submissions filed by the appellants were ignored by the reference court.
(xiii) The evidence of DW-1 in L.A.R. No.47 of 2004 (subject matter of First Appeal No.733 of 2017), was the evidence of Lekhpal in which he clearly stated on 21/22.12.2016 that the plot No.473 was an agricultural land.
(xiv) The finding of the reference court that the sale deed exemplars filed in evidence by the appellants do not reflect true market value, is wholly baseless and without any foundation or evidence. Therefore, the finding is perverse.
(xv) The claimants' land at the time of acquisition was used for agricultural purpose and it was totally undeveloped.
(xvi) In any case, even if there is an auction of undeveloped similar agricultural land, it shall not furnish a safe guide for determination of market value.
(xvi) Without prejudice to the submissions made above, the auction lease exemplars dated 11.06.1993 and 15.07.1993 and other auction exemplars were subsequent to the dates of present acquisition. Therefore, apart from the fact that these auction/ leases were developed land having no similarity to the acquired land yet it has no relevance for the purposes of the present acquisition inasmuch as these auction/ lease deeds were of a date subsequent to the present acquisition.
11. In support of his submissions, Sri M.C. Chaturvedi, learned senior advocate relied upon the provisions of Section 23 of the Act and the law laid down by Hon'ble Supreme Court in Executive Engineer Karnatka Housing Board vs. Land Acquisition Officer and others, {(2011) 2 SCC 246 (Paras-1, 4, 5 and 6), Kolkata Metropolitan Development Authority vs. Gobinda Chandra Makal and another {(2011) 9 SCC 207 (Paras-31 to 36), Major General Kapil Mehra vs. Union of India and another {(2015) 2 SCC 262 (Paras-25, 26 and 27)}, Bhupal Singh and others vs. State of Haryana {(2015) 5 SCC 801}, Maya Devi (dead) through legal representatives and others vs. State of Haryana and another {(2018) 2 SCC 474 (paras-4 and 5)}, Pyare Mohan Lal vs. State of Jharkhand, {(2010) 10 SCC 693}, Lal Chand vs. Union of India, {(2009) 15 SCC 769}, T.S. Ramchandra Shetty vs. Chairman Karnataka Housing Board and others {(2009) 14 SCC 334}, Ranvir Singh and others vs. Union of India {(2005)12 SCC 59}, Bangaru Narshinga Rao, Naidu and others vs. Revenue Divisional Officer Vizianagaram, {(1980) 1 SCC 575}, and the judgments of this Court in Deo Karan and others vs. State of U.P. and others 2017 (122) ALR 78 : 2017 (1) ADJ 389 and judgment dated 25.03.2019 in First Appeal No.467 of 2006 (Ramphal and others vs. State of U.P. and others).
SUBMISSIONS ON BEHALF OF CLAIMANTS RESPONDENTS:-
12. Learned counsel for the claimants-respondents submits as under:-
(i) On the point of "relevant date" all the judgments relied by the appellants are per incuriam since it is based on judgments of Hon'ble Supreme Court in which a three Judges Bench Judgment in Chandrabhan's case was not noticed. The relevant date would be the last date of publication of Notification under Section 4(1) of the Act or the date of publication of notice by the Collector which ever is later. To support his submissions he referred to the provisions of Section 23(1) read with Section 4(1) of the Act and the judgmnts of Hon'ble Supreme Court in P. Ram Reddy and others Vs. Land Acquisition Officer, Hyderabad Urban Development Authority, Hyderabad & others (1995) 2 SCC 305 (para 8); Chandrabhan and others Vs. Ghaziabad Development Authority and others (2015) 15 SCC 343 and Union of India and another Vs. K.S. Subramanian (1976) 3 SCC 677 (para 12).
(ii) Paper No.101 C is the map which establishes that on one side of the road "Taj Nagari Phase-I Scheme" was established and on the other side of the road the land has been acquired under the acquisition in question.
(iii) Lease deed exemplars filed by the claimants have been found to be good exemplar by the court below to determine compensation of the acquired land after giving due deduction. Since the market value determined under the impugned judgment reflects the true market value of the acquired land as on the date of acquisition i.e. 30.4.1989, therefore, it can not be interfered with.
(iv) Evidence of Sri Vinod Kumar Dubey (PW -1) dated 29.2.2016 as pairokar of the claimants establishes not only the building potentiality of the acquired land but also market value as on the date of acquisition. The acquired land was near to the well developed land of "Taj Nagari Phase-I Scheme". Near to the acquired land there were large number of Hotels, Hospitals and other commercial establishments as have been stated by PW 1 in his evidence. Nothing adverse could be brought out even in his cross examination. The evidence of DW 1 (Raghuraj Singh - Lekhpal) also supports the case of the claimants-respondents in so far as the potentiality of the acquired land is concerned.
(v) The evidence of PW -1 could not be rebutted by the appellants. Therefore, the market value determined by the court below can not be said to be excessive rather it is inadequate and it needs to be enhanced to Rs.700/- per sq. yard by allowing the cross objection.
(vi) Judgments relied in support of submissions are the judgments of Hon'ble Supreme Court in Lal Chand Vs. Union of India and another (2009) 15 SCC 769 (paras 14 & 15), Land Acquisition Officer & Mandal Revenue Officer Vs. Narasaiah (2001) 3 SCC 530 (para 14), Major General Kapil Mehra and others Vs. Union of India and another (2015) 2 SCC 262 (paras 16,17 & 21) and Haryana State Industrial Development Corporation Vs. Pran Sukh and others (2010) 11 SCC 175 (paras 10 & 22).
(vii) The claimants-respondents have filed sale deed exemplars being paper Nos.33C to 42C in LAR No.968 of 2003, which disclose selling rate ranging from Rs.155.84 to Rs.300/- per square yard.
(viii) The court below has rightly disbelieved the sale deed exemplars filed by the appellants inasmuch as it came to the conclusion that it did not reflect the true market value.
(ix) Auction leases were relevant exemplars for determining market value of land under the present acquisition inasmuch as the auction lease deeds filed in evidence are the only comparable sale transaction. The reference court has determined market value on the basis of these exemplars after making reasonable deductions. The relevant date of the present acquisition is 30.01.1989 and not 04.04.1989.
(x) The acquired land of the claimants-respondents is a free-hold land and, therefore, it shall fetch better market value than the leased land. Under the circumstances, the reference court should have allowed higher compensation on the basis of relied upon lease deed exemplars. In this regard, the judgments of Hon'ble Supreme Court in Executive Engineer Karnatka Housing Board vs. Land Acquisition Officer and others, {(2011) 2 SCC 246 (para07)} and Major General Kapil Mehra vs. Union of India and another {(2015) 2 SCC 262}, are relied.
(xi) Auction sales are relevant for fixing market value in view of the law laid down by Hon'ble Supreme Court in V.N. Devadoss vs. Chief Revenue Control Officer and Inspector and others {(2009) 7 SCC 438}.
(xii) When there are several exemplars with reference to similar land, it is the general rule that the highest exemplar, found to be bona fide transaction, has to be considered and accepted. Reference in this regard may be had to the judgments of Hon'ble Supreme Court in Satish vs. State of U.P. {(2009) 14 SCC 758 (Par-42)}, Anjana Molu Desai vs. State of Goa, {(2010) 13 SCC 710 (para-13)}, Chindha Thakre Patil vs. S.L.A.O. {(2011) 10 SCC 787 (para-15)}, Mehrawal Khewaji Trust (Regd.) vs. State of Punjab, {(2012) 5 SCC 432} and Mohd. Yusuf and others vs. State of Haryana and others, AIR 2018 SC 2248.
(xiii) Since the claimants have produced satisfactory evidence in the form of lease deeds of plot Nos.1 and 5 to show higher market value, therefore, the sale deed exemplars relied by the appellants to show a lessor market value has to be treated as undervalued and unreliable evidence. Therefore, the reference court has rightly not relied upon the sale deed exemplars filed by the appellants herein. Reference may be had to the judgments of Hon'ble Supreme Court in Haryana State Industry Development Corporation vs. Pranshukh {(2010) 11 sCC 175 (paras-20 and 22)}, Udho Das vs. State of Haryana, {(2010) 12 SCC 51 (para-21)}, Anjana Molu Desai vs. State of Goa, {(2010) 13 SCC 710 (para-20)}.
(xiv) In the case of Udho Das vs. State of Haryana, {(2010) 12 SCC 51 (paras-18 and 19)}, Hon'ble Supreme Court held that if the compensation proceeding continued over a period of almost 20 years, then the potential of the acquired land must be adjudged keeping in view the development in the year split over the period of 20 years.
(xv) Bona fide post notification sales in the form of lease deed exemplars have been rightly relied upon by the reference court. In the circumstances that there was no sharp or speculative rise in the price of the land after the acquisition. Reference in this regard may be had to the judgments of Hon'ble Supreme Court in Mehta Ravindrarai Ajeet Rai vs. State of Gujrat, {(1989) 4 SCC 250 (paras-4 and 5)}, State of U.P. vs. Major Jitendra Kumar and others, AIR 1982 SC 876 (para-3), Chamanlal Hargovind Das vs. S.L.A.O., {(1988) 3 SCC 751 (para-9)}, and Union of India vs. Dyagala Devamma and others, AIR 2018 SC 3511.
(xvi) The claimants-respondents have filed evidence in L.A. Case No.968 of 2003 (subject matter of First Appeal No.212 of 2017), the following lease deed/ sale deed exemplars with regard to lease or sale of certain commercial plots as under:
(A) Leases by open auction of commercial plots of T.N. Phase-I Scheme granted by A.D.A. SL. No. Paper No. Date of bid/ lease Name of bidder/ lessee Plot No. T.N. Phase-I Scheme Area (in square meters) Auction Amount + lease rent (in Rs.) Rate (Rs.) (per square meter) 1 102C (Ext.14)/ 71C (Ext.1) 11.06.1993 JSG Hotels Pvt. Ltd.1 4000
44,04,000/-
1001/-
2131C (Ext.36)/ 72C (Ext.2) 15.07.1993 Goyal International Hotels and Resorts Ltd.
522,393.48 2,99,92,373/-
1339/-
(B) Allotment of other commercial plots of T.N. Phase-I Scheme SL. No. Paper No. Date of lease Name of lessee Plot No. T.N. Phase-I Scheme Area (in square meters) Amount (in Rs.) Rate (Rs.) (per square meter) 1 110C (Ext.20)/ 71C (Ext.1) 17.02.1992 Omega Hotels Ltd.
2 480017,05,440/-
355/-
2119C (Ext.26) 30.08.1988 M/s. Unitech Ltd.
330351.1702 98,03,428/-
323/- (allotment cancelled) 3 125C (Ext.31) 29.04.1993 M/s East India Hotels Ltd.
470670 2,28,26,410/-
323/-
4144C (Ext.45)/ 148C (Ext.49) 08.02.1995 Dr. Ramchand Tiwari 66 195.096 1,39,854/-
716.84 5 183C (Ext.90)/83C (Ext.6) 25.08.1992 Vishnu Kumar Gupta 18 289.38 2,07,543.33 717.20 6 135C (Ext.40)/72C (Ext.2) 15.07.1993 Vishnu Kumar Gupta Additonal area adjoining to plot No.5 1134 19,89,603 1754.68 (C) Details of sale deeds filed by claimants by List 32C dated 04.01.2010 regarding land sold by farmers/ society of village Basai Mustaqil (not filed with Paper Book) SL. No. Paper No. Date of sale deed Name of seller/ purchaser Khasra Plot No. Area (in square yard) Consideration (in Rs.) Rate (in Rs.) (per square yard) Remark 1 33C 11.06.1987 Prem Singh and others/ Phool Singh 342 150 24,750/-
165/-
-
234C 10.01.1986 Premwati/ Smt. Bisna Bai 353 80 14,500/-
181.25 Agreement to sale 3 35C 19.01.1987 Lakhan Singh S/o Dharamal/ Lakhan Singh S/o Tej Singh 295 100 18,000/-
180/-
--
436C 12.10.1988 Darvesh Sahkari Avas Samiti Ltd./ Smt. Rambeti 1056 200 35,000/-
175/-
--
537C 21.03.1986 Smt. Rashmi Beti/ Smt. Rajan Devi 1060 to 1062 200 30,000/-
150/-
--
638C 25.06.1987 Kailashi Ram/ ..............
367257.222 35,980/-
139.87
--
739C 24.08.1987 Munni Devi/ Mufizuddin
--
10025,000/-
250/-
With construction 8 40C 06.06.1987 Thakur Gulab Singh & Dr. Basant Lal / ............
278 10830,000/-
277.77 Situate in M.P. Pura Nagla mahadev 9 41C 02.06.1987 Smt. Bhoori Devi/ Ramji Lal 276 100 30,000/-
300/-
---
1042C 02.06.1987 Smt. Har Pyari/ Jamuna Das 330 171 26,650/-
155.84
---
DISCUSSION AND FINDINGS:
13. I have carefully considered the submissions of learned counsels for the parties.
Question No. (a) Whether the date 30.01.1989 when the notification under Section 4(1) of the Act was published in the official gazette or the date 04.04.1989 when the public notice was published by the SLAO, shall be the relevant date for determination of compensation of the market value of the acquired land?
14. The relevant provisions for the purposes of relevant date for determination of market value of the land acquired, are Section 23(1) and Section 4(1) of the Act, which are reproduced below:
"23.Matters to be considered in determining compensation:-
(1) In determining the amount of compensation to be awarded for land acquired under this Act, the court shall take into consideration---
first, the market-value of the land at the date of the publication of the notification under section 4, sub-section (1);
secondly, the damage sustained by the person interested, by reason of the taking of any standing crops or trees which may be on the land at the time of the Collector's taking possession thereof;
thirdly, the damage (if any) sustained by the person interested, at the time of the Collector's taking possession taking possession of the land, by the reason of severing such land from his other land;
fourthly, the damage (if any) sustained by the person interested, at the time of the Collector's taking possession of the land, by reason of the acquisition injuriously affecting his other property, movable or immovable, in any other manner, or his earnings;
fifthly, if in consequence of the acquisition of the land by the Collector, the person interested is compelled to change his residence or place of business, the reasonable expenses (if any) incidental to such change; and sixthly, the damage (if any) bona fide resulting from diminution of the profits of the land between the time of the publication of the declaration under section 6 and the time of the Collector's taking possession of the land.
(1A) In addition to the market value of the land, as above provided, the Court shall in every case award an amount calculated at the rate of twelve per centum per annum on such market value for the period commencing on and from the date of the publication of the notification under Section 4, sub-section (1), in respect of such land to the date of the award of the Collector or the date of taking possession of land, whichever is earlier.
Explanation.- In computing the period referred to in this sub-section, any period or periods during which the proceedings for acquisition of the land were held up on account of any stay or injunction by the order of any Court shall be excluded.
4. Publication of preliminary notification and powers of officers thereupon. (1) Whenever it appears to the appropriate Government that land in any locality is needed or is likely to be needed for any public purpose or for a company, a notification to that effect shall be published in the Official Gazette and in two daily newspapers circulating in that locality of which at least one shall be in the regional language, and the Collector shall cause public notice of the substance of such notification to be given at convenient places in the said locality (the last of the dates of such publication and the giving of such public notice, being hereinafter referred to as the date of the publication of the notification)."
(Emphasis supplied by me)
15. Specifically the question that what would be the relevant date for determining market value of acquired land for the purposes of compensation under Section 23(1) of the Act, came for consideration before Hon'ble the Supreme Court in Kolkata Metropolitan Development Authority vs. Gobinda Chandra Makal and another {(2011) 9 SCC 207 (Paras-31 to 36), in which Hon'ble Supreme Court specifically laid down the law that the context in which words are used in Section 4(1) and 6, and the context in which the same words are used in Section 23(1) are completely different. In Section 23(1), the words "the date of publication of the notification under Section 4(1)" would refer to the date of publication of the notification in the Gazette. The relevant portion of the aforesaid judgment of Hon'ble Supreme court in Kolkata Metropolitan Development Authority (supra) (paras 31 to 36), are reproduced below:-
"Re : Relevant date for determining compensation
31. The notification under section 4(1) of the Act is dated 13.9.2000. It was published in the gazette dated 13.9.2000. Thereafter it was published in two newspapers. Lastly, the Collector caused public notice of the substance of such notification to be given at convenient places in the locality on 16.11.2000. The reference court and the High Court have proceeded on the basis that the relevant date for determining the market value is 16.11.2000. They have also relied upon the expert valuer's report which assessed the market value as on 16.11.2000. We have noticed above that the Expert Valuer determined the market value with reference to a sale deed dated 10.3.2000, by adding 8% as the increase in prices for the period of eight months between 10.3.2000 and 16.11.2000 (at the rate of 1% per month). The question is whether the relevant date for determination of compensation is 13.9.2000 or 16.11.2000.
32. Sub-section (1) of Section 23 provides that the compensation to be awarded shall be determined by the Reference Court, based upon the market value of the acquired land at the time of publication of the notification under section 4 sub-section (1). The first respondent contends that the `date of publication of notification under section 4(1)' is statutorily defined in section 4(1) (that is, the last of the dates, out of the dates of publication of the notification in the official gazette, publication of the notification in two daily newspapers circulating in that locality of which at least one shall be in the regional language, and public notice of the substance of such notification being given at convenient places in the locality), and therefore the said words refer to 16.11.2000 as the date of publication of notification under section 4(1)of the LA Act.
33. Section 6 was amended in 1984 providing that no declaration under section 6 in respect of any land covered by a notification under section 4(1) shall be made after the expiry of one year from the date of publication of the notification under section 4(1). In that context, to avoid any confusion as to what would be the date of publication of the notification under section 4(1), section 4(1) was also amended to clarify the position and it was provided that "the last of the dates of such publication and the giving of such public notice, being hereinafter referred to as the date of publication of the notification". But the words `publication of the notification under section 4(1)' occurring in the first clause of section 23(1) have different meaning and connotation from the use of the said words in sections 4(1) and 6 of the LA Act. Prior to the 1984 amendment of section 4, the words "publication of notification under section 4(1)" in section 23(1) referred to the date of publication of the notification in the official Gazette. Even after the amendment of section 4(1), the said words in section 23(1) continue to have the same earlier meaning. We may briefly indicate the reasons for our said conclusion.
34. One of the principles in regard to determination of the market value under section 23(1) is that the rise in market value after the publication of the notification under section 4(1) of the Act should not be taken into account for the purpose of determination of market value. If the deeming definition of `publication of the notification' in the amended section 4(1) is imported as the meaning of the said words in the first clause of section 23(1), it will lead to anomalous results. The owners of the lands which are the subject matter of the notification and neighbouring lands will come to know about the proposed acquisition, on the date of publication in the gazette or in the newspapers. If the giving of public notice of the substance of the notification is delayed by two or three months, there may be several sale transactions in regard to nearby lands in that period, showing a spurt or hike in value in view of the development contemplated on account of the acquisition itself.
35. If the words `publication of the notification' in section 23(1) (clause firstly) should be construed as referring to the last of the dates of publication and public notice, and the date of public notice in the locality is to be considered as the date of publication, the landowners can legitimately claim that the sales which took place till the date of public notice should be taken into account for the purpose of determination of compensation, leading to disastrous results. Let us give two illustrations :
Illustration A : The market value of the acquired land on 13.9.2000 is Rs.1,00,000 per acre. A notification under section 4(1) is published in the gazette on 13.9.2000 and in two newspapers on 14.9.2000. But the public notice in the locality is given only two months later on 16.11.2000. As the land owners in the area come to know about the proposed acquisition and consequential expectations of development in the area, developers and speculators enter the arena and start buying neighbouring lands leading to steep increase in prices. Consequently several sales take place in October 2000 at rates ranging from Rs.1.5 lakhs to Rs.2 lakhs per acre. If 16.11.2000 should be taken as the date of publication of the notification under section 4(1), the land owners can legitimately contend that the sale deeds executed in October 2000, being prior to the `date of publication of the preliminary notification' should be taken note of for the purpose of determining the compensation. That would result in compensation being determined between Rs.1,50,000 to Rs.2 lakhs per acre even though the market rate as on 13.9.2000 which is the date of publication of the notification was only Rs.1,00,000.
Illustration B : When large tracts of lands are acquired and the preliminary notification dated 13.9.2000 is published in the Gazette on 13.9.2000 and in the newspapers on 14.9.2000, but public notice of the substance is delayed by more than two months and is given on 16.11.2000, there will be ample time for unscrupulous land owners of acquired lands to create evidence of higher market value by managing nominal sale(s) in regard to some neighbouring land which is not the subject of acquisition at a price of Rs.2,00,000/- as against the market price of Rs.1,00,000/- and thereby cause a huge loss to the state.
36. The same words used in different parts of a statute should normally bear the same meaning. But depending upon the context, the same words used in different places of a statue may also have different meaning. [See: Justice G.P. Singh's Principles of Statutory Interpretation - 12th Edition - PP. 356-358]. The use of the words `publication of the notification' in sections 4(1) and 6 on the one hand and in section 23(1) on the other, in the LA Act, is a classic example, where the same words have different meanings in different provisions of the same enactment. The words `publication of the notification under section 4 sub-section (1)', are used in section 23(1) for fixing the relevant date for determination of market value. The words "the last of the date of such publication and giving of such public notice, being hereinafter referred to as the date of the publication of the notification" in section 4(1) and the words "one year from the date of the publication of the notification" in the first proviso tosection 6, refer to the special deeming definition of the said words, for determining the period of one year for issuing the declaration under section 6, which is counted from the date of `publication of the notification'. Therefore the context in which the words are used in sections 4(1) and 6, and the context in which the same words are used in section 23(1) are completely different. In section 23(1), the words "the date of publication of the notification under section 4(1)" would refer to the date of publication of the notification in the gazette. Therefore, `13.9.2000' will be the relevant date for the purpose of determination of compensation and not 16.11.2000."
(Emphasis supplied by me)
16. The principle laid down in the case of Kolkata Metropolitan Development Authority (supra) on the question of relevant date for determining market value under Section 23(1) of the Act, has been reiterated by Hon'ble Supreme Court in a recent judgment in Maya Devi (dead) through legal representatives and others vs. State of Haryana and another {(2018) 2 SCC 474 (para-5)}, as under:
"5. So far as the first contention is concerned, the sale deed relied upon by the appellant/ claimants dated 27.12.1988 is post notification. Sub-section (1) of Section 23 of the Act provides that the compensation to be awarded shall be determined by the reference court, based upon the market value of the acquired land at the date of the publication of the notification under Section 4(1). In Kolkata Metropolitan Development Authority v. Gobinda Chandra Makal and Anr. (2011) 9 SCC 207, it was held that the relevant date for determining the compensation is the date of publication of the notification under Section 4(1) of the Act in the Gazette. In para (34), it was held as under:-
"34. One of the principles in regard to determination of the market value under Section 23(1) is that the rise in market value after the publication of the notification under Section 4(1) of the Act should not be taken into account for the purpose of determination of market value. If the deeming definition of "publication of the notification" in the amended Section 4(1) is imported as the meaning of the said words in the first clause of Section 23(1), it will lead to anomalous results. The owners of the lands which are the subject-matter of the notification and the neighbouring lands will come to know about the proposed acquisition, on the date of publication in the Gazette or in the newspapers. If the giving of public notice of the substance of the notification is delayed by two or three months, there may be several sale transactions in regard to nearby lands in that period, showing a spurt or hike in value in view of the development contemplated on account of the acquisition itself."
Applying the ratio of the above decision, we are of the view that the post notification instances cannot be taken into consideration for determining the compensation of the acquired land."
(Emphasis supplied by me)
17. In the case of N. Narasimhaiah vs. State of Karnataka, 1996 (3) SCC 88 (Para-17), Usha Stud and Agricultural Farms Private Limited and others vs. State of Haryana and others, 2013 (4) SCC 210 (paras-19 to 24), Surinder Singh Brar and others vs. Union of India and others, 2013 (1) SCC 403 (para-75), V.K.M. Kattha Industries Private Limited vs. State of Haryana and others, 2013 (9) SCC 338 (para-14) and Chandra Bhan vs. Ghaziabad Development Authority and others, (2015) 15 SCC 343 (paras-19 to 21), Hon'ble Supreme Court has not specifically and exhaustively examined the question of relevant date for determination of market value as has been done in the case of Kolkata Metropolitan Development Authority (supra) and Maya Devi (supra).
18. In the case of Arasmeta Captive Power Company Private Limited and another v. Lafarge India Private Limited, JT 2014 (1) SC 1 (paras-28 to 36), Hon'ble Supreme Court laid down the principles of binding precedent, as under:
"28. At this juncture, we think it condign to refer to certain authorities which lay down the principle for understanding the ratio decidendi of a judgment. Such a deliberation, we are disposed to think, is necessary as we notice that contentions are raised that certain observations in some paragraphs in SPB & Co. vs. Patel Engineering Ltd. and another, [JT 2005 (9) SCC 219 : (2005) 8 SCC 618] have been relied upon to build the edifice that latter judgments have not referred to them.
29. In Ambica Quarry Works v. State of Gujarat and others, [JT 1986 SC 1036 : (1987) 1 SCC 213], it has been stated that the ratio of any decision must be understood in the background of the facts of that case. Relying on Quinn v. Leathem, [1901 AC 495], it has been held that the case is only an authority for what it actually decides, and not what logically follows from it.
30. Lord Halsbury in the case of Quinn (supra) has ruled thus: -
"...there are two observations of a general character which I wish to make, and one is to repeat what I have very often said before, that every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical code, whereas every lawyer must acknowledge that the law is not always logical at all."
31. In Krishena Kumar v. Union of India and others, [JT 1990 (3) SC 173 : (1990) 4 SCC 207], the Constitution Bench, while dealing with the concept of ratio decidendi, has referred to Caledonian Railway Co. v. Walker's Trustees [1882 (7) App Cas 259 : 46 LT 826 (HL)] and Quinn (supra) and the observations made by Sir Frederick Pollock and thereafter proceeded to state as follows: -
"The ratio decidendi is the underlying principle, namely, the general reasons or the general grounds upon which the decision is based on the test or abstract from the specific peculiarities of the particular case which gives rise to the decision. The ratio decidendi has to be ascertained by an analysis of the facts of the case and the process of reasoning involving the major premise consisting of a pre-existing rule of law, either statutory or judge-made, and a minor premise consisting of the material facts of the case under immediate consideration. If it is not clear, it is not the duty of the court to spell it out with difficulty in order to be bound by it. In the words of Halsbury (4th edn., Vol. 26, para 573) "The concrete decision alone is binding between the parties to it but it is the abstract ratio decidendi, as ascertained on a consideration of the judgment in relation to the subject matter of the decision, which alone has the force of law and which when it is clear it is not part of a tribunal's duty to spell out with difficulty a ratio decidendi in order to bound by it, and it is always dangerous to take one or two observations out of a long judgment and treat them as if they gave the ratio decidendi of the case. If more reasons than one are given by a tribunal for its judgment, all are taken as forming the ratio decidendi." [Emphasis added]
32. In State of Orissa v. Mohd. Illiyas[JT 2005 (10) SC 64 : 2006 (1) SCC 275], it has been stated thus: -
"12. ... According to the well-settled theory of precedents, every decision contains three basic postulates: (i) findings of material facts, direct and inferential. An inferential findings of facts is the inference which the Judge draws from the direct, or perceptible facts; (ii) statements of the principles of law applicable to the legal problems disclosed by the facts; and (iii) judgment based on the combined effect of the above. A decision is an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically flows from the various observations made in the judgment."
33. In Islamic Academy of Education v. State of Karnataka [JT 2003 (7) SC 1 : 2003 (6) SCC 697], the Court has made the following observations: -
"2. ... The ratio decidendi of a judgment has to be found out only on reading the entire judgment. In fact, the ratio of the judgment is what is set out in the judgment itself. The answer to the question would necessarily have to be read in the context of what is set out in the judgment and not in isolation. In case of any doubt as regards any observations, reasons and principles, the other part of the judgment has to be looked into. By reading a line here and there from the judgment, one cannot find out the entire ratio decidendi of the judgment." [Bold is by us]
34. The said authorities have been relied upon in Natural Resources Allocation, In Re, Special Reference No. 1 of 2012[JT 2012 (10) SC 145 : 2012 (10) SCC 1 ].
35. At this stage, we may also profitably refer to another principle which is of assistance to understand and appreciate the ratio decidendi of a judgment. The judgments rendered by a court are not to be read as statutes. In Union of India v. Amrit Lal Manchanda and another[JT 2004 (2) SC 378 : 2004 (3) SCC 75], it has been stated that observations of courts are neither to be read as Euclid's theorems nor as provisions of the statute and that too taken out of their context. The observations must be red in the context in which they appear to have been stated. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes.
36. In Som Mittal v. Government of Karnataka,[JT 2008 (3) SC 52 : 2008 (3) SCC 574], it has been observed that judgments are not to be construed as statutes. Nor words or phrases in judgments to be interpreted like provisions of a statute. Some words used in a judgment should be read and understood contextually and are not intended to be taken literally. Many a time a judge uses a phrase or expression with the intention of emphasizing a point or accentuating a principle or even by way of a flourish of writing style. Ratio decidendi of a judgment is not to be discerned from a stray word or phrase read in isolation."
(Emphasis supplied by me)
19. In the case of Delhi Administration (Now NCT of Delhi) vs. Manoharlal, AIR 2002 SC 3088 (para-5) and M/s Amar Nath Om Parkash and others vs. Sate of Punjab and others, AIR 1985 SC 218 (paras-8, 11 and 12), Hon'ble Supreme Court held that ratio of decision is binding. Initiation of principles and reasons on which a question has been decided is alone binding precedent. Similar view has also been taken in State of Orissa vs. Sudhansu Sekhar Misra and others, AIR 1968 SC 647, Union of India and others vs. Dharnwanti Devi and others, (1996) 6 SCC 44 and State of Orissa and others vs. Md. Illiyas, JT 2005 (10) SC 64 (para-14).
20. Thus, the ratio decidendi is the underlying principle, namely, the general reasons or the general grounds upon which the decision is based on the test or abstract from the specific peculiarities of the particular case which gives rise to the decision. The ratio decidendi has to be ascertained by an analysis of the facts of the case and the process of reasoning involving the major premise consisting of a pre-existing rule of law, either statutory or judge-made, and a minor premise consisting of the material facts of the case under immediate consideration. The abstract ratio decidendi, as ascertained on a consideration of the judgment in relation to the subject matter of the decision, which alone has the force of law. It is always dangerous to take one or two observations out of a long judgment and treat them as if they gave the ratio decidendi of the case. A decision is an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically flows from the various observations made in the judgment.
21. Since the question regarding relevant date for determining market value for the purposes under Section 23(1) of the Act has been specifically decided and principle of law in this regard has been laid down by Hon'ble Supreme Court in the case of Kolkata Metropolitan Development Authority (supra) and as such respectively following the aforesaid judgment, I hold that the relevant date for determining market value for the purposes of compensation under Section 23(1) of the Act, shall be the date of publication of notification in the Gazette under Section 4(1) of the Act. The date of publication of notice as provided under Section 4(1) of the Act shall not be relevant. Therefore, in the present set of facts, 30.01.1989 being the date of publication of notification in the official Gazette under Section 4(1) of the Act, is the relevant date for determining market value for the purpose of compensation under Section 23(1) of the Act. Question No.(a) is answered accordingly.
Question No.(b) Whether the market value of the acquired land determined by the court below is lawful and adequate?
AND Question No.(c) Whether consideration received by ADA in auction sale of developed plots in "Taj Nagari Phase-I Scheme", can be made basis for determination of market value of the land acquired by the appellant -ADA for the scheme in question i.e. "Taj Nagari Phase-II" particularly when sale deed exemplars were filed in evidence by the ADA for determination of market value of the acquired land under the present acquisition, i.e. "Taj Nagari Phase-II"?
22. Since both the afore-noted questions are interlinked, therefore, both are being considered together.
Whether sale deed exemplars of post notification period are good exemplars when sale deed exemplars of period within three years before the date of acquisition notification dated 30.01.1989, are available:-
23. The first factor provided in Section 23(1) of the Act specifically provides that for determining amount of compensation to be awarded for land acquired under the Act, the court shall take into consideration the market value of the land at the date of publication of the notification in the Gazette under Section 4(1) of the Act. Thus, the market value of land acquired under the Act has to be determined by the court as on the date of the publication of the notification in the Gazette under Section 4(1) of the Act. This view is supported by the law laid down by Hon'ble Supreme Court in the case of Chamanlal Hargovind Das vs. S.L.A.O., (1988) 3 SCC 751 (para-4), Union of India vs. Dyagala Devamma and others, (2018) 8 SCC 485 : AIR 2018 SC 3511, Manoj Kumar and others vs. State of Haryana and others, (2018) 13 SCC 96 (Para-25).
24. 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.
25. In view of the law laid down by Hon'ble Supreme Court in the case of Chamanlal Hargovind Das (supra), Manoj Kumar and others (supra), Dyagala Devamma and others (supra) and Bhupal Singh (supra), I have no difficulty to hold that market value of the acquired land is required to be determined on the basis of the market rate of the adjacent land similarly situated to the acquired lands prevailing on the date of acquisition or/ and prior to the acquisition but not subsequent to the date of acquisition.
What is Market Value:-
26. 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:-
27. 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:-
(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 as on the date of acquisition.
(b) Existing use of the land as on the date of acquisition.
(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
28. 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).
29. 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.
COMPARATIVE SALE METHOD OF MARKET VALUE
30. 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.
31. 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."
32. 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.
Whether auction sale transaction can be relied to determine market value when other regular deed exemplars are available:-
33. Market value is determined with reference to the open market sale of comparable land in the neighbourhood of a willing seller to a willing buyer on or before the date of preliminary notification under Section 4(1) of the Act, as that would give a fair indication of market value. Auction sales stand on different footing. When purchasers start bidding for a property in an auction, an element of competition enters into the auction. In a well advertised open auction-sale, there is always a tendency for the price of the auctioned property to go up considerably, whereas in case, the auction-sale by banks or financial institutions to recover dues, there is an elements of distress, which have the effect of dampening the enthusiasm of bidders and making them cautious, thereby depressing the price. Therefore, when other regular sale transactions are available for determining market value of the acquired land, it would not be safe to rely upon an auction sale. But where an open auction sale is the only comparable sale transaction available on account of proximity in situation and proximity in time to the acquired land, the court may with caution, rely upon the price disclosed by such auction sales, by providing an appropriate deduction or cut to off-set the competitive-hike in value.
34. Similar view has been taken by Hon'ble Supreme Court in the case of Raj Kumar vs. Haryana State, (2007) 7 SCC 609. Similar question has been exhaustively considered by Hon'ble Supreme Court in the case of Executive Engineer, Karnatka Housing Board vs. Land Acquisition Officers and others, (2011) 2 SCC 246 (paras-5 and 6) and it has been held as under:
"5. We may deal with the last submission first. The standard method of determination of market value of any acquired land is by the valuer evaluating the land on the date of valuation (publication of notification under section 4(1) of the Land Acquisition Act, 1894 - `Act' for short) notification, acting as a hypothetical purchaser willing to purchase the land in open market at the prevailing price on that day, from a seller willing to sell such land at a reasonable price. Thus, the market value is determined with reference to the open market sale of comparable land in the neighbourhood, by a willing seller to a willing buyer, on or before the date of preliminary notification, as that would give a fair indication of the market value. A `willing seller' refers to a person who is not acting under any pressure to sell the property, that is, where the sale is not a distress sale. A willing seller is a person who knowing the advantages and disadvantages of his property, sells the property after ascertaining the prevailing market prices at the fair and reasonable value. Similarly, a willing purchaser refers to a person who is not under any pressure or compulsion to purchase the property, and who, having the choice of different properties, voluntarily decides to buy a particular property by assessing its advantages and disadvantages and the prevailing market value thereof. Of course, unless there are indications to hold otherwise, all sale transactions under registered sale deeds will be assumed to be normal sales by willing sellers to willing purchasers. Where however there is evidence or indications that the sale was not at prevailing fair market value, it has to be ignored.
6. But auction sales stand on a different footing. When purchasers start bidding for a property in an auction, an element of competition enters into the auction. Human ego, and desire to do better and excel other competitors, leads to competitive bidding, each trying to outbid the others. Thus in a well advertised open auction sale, where a large number of bidders participate, there is always a tendency for the price of the auctioned property to go up considerably. On the other hand, where the auction sale is by banks or financial institutions, courts, etc. to recover dues, there is an element of distress, a cloud regarding title, and a chance of litigation, which have the effect of dampening the enthusiasm of bidders and making them cautious, thereby depressing the price. There is therefore every likelihood of auction price being either higher or lower than the real market price, depending upon the nature of sale. As a result, courts are wary of relying upon auction sale transactions when other regular traditional sale transactions are available while determining the market value of the acquired land. This Court in Raj Kumar v. Haryana State - 2007 (7) SCC 609, observed that the element of competition in auction sales makes them unsafe guides for determining the market value."
35. In the present set of facts, the auction sale/ lease deeds are not the only comparable sale transactions. The lease deed exemplars of plot Nos.1 and 5 are of two commercial plots of "Taj Nagari Phase-I Scheme". Lease deeds of these plots and other few commercial plots were made after four or five years of the present acquisition, i.e. between the year 1992 to 1995. Much thereafter, the construction took place and hotels were established. The land for "Taj Nagari Phase-II Scheme" i.e. the present acquisition was basically acquired for residential purpose on 30.01.1989, i.e. much prior to the leases of commercial Plot Nos.1 and 5 of Taj Nagari Phase-I Scheme. Even under "Taj Nagari Phase-I Scheme", the residential plots were sold after full development, approximately at about Rs.300/- per square meter. Even some commercial plots of "Taj Nagari Phase-I Scheme" for Five Star Hotels were allotted/ leased between the year 1992 to 1995 ranging from Rs.323/- per square meter to Rs.717.20 per square meter depending upon its location. These plots could also not be proved to be in proximity in situation to the acquired land. Thus, these auction/ lease deeds of few commercial plots of "Taj Nagari Phase-I Scheme" are neither in proximity in time to the acquired land nor in proximity in situation nor it has any similarity to the acquired land inasmuch as the acquired land is agricultural land while the aforesaid auctioned/ leased plots were fully developed commercial plots from amongst the total area of 85.47 acres land acquired under the "Taj Nagari Phase-I Scheme" in which the major portion was developed as housing plots.
36. Learned counsels for the respondents have relied upon judgments of Hon'ble Supreme Court in Natural Resources Allocation, In Re, Special Reference No. 1 of 2012 [JT 2012 (10) SC 145 : 2012 (10) SCC 1 ] and V.N. Devadoss vs. Chief Revenue Control Officer and Inspector and others {(2009) 7 SCC 438}. I have perused both the judgments. Natural Resources Allocation case (supra) is with regard to auction of 2G spectrum and the question basically involved before the Hon'ble Supreme Court was as to whether the only permissible method for disposal of all natural resources across all sectors and in all circumstances is by the conduct of auctions and What is the permissible scope for interference by courts with policy making by the Government including methods for disposal of natural resources. The judgment in the case of V.N. Devadoss (supra) arose from the proceedings under Section 47A of the Indian Stamp Act for payment of stamp duty and in that context, the Hon'ble Supreme Court held that the property was offered for sale in the open market by inviting bids and, therefore, there is no question of any intention to defraud the revenue or non-disclosure of the correct price of the properties which were disposed of under the orders of BIFR and AAIFR on the basis of value fixed by Assets Sales Committee.
37. In the present set of facts, some sale deed exemplars namely Paper No.110-C is the sale deed dated 28.05.1988 for sale of plot No.203 which were filed in evidence. This plot No.203 was acquired which is subject matter of the abovenoted First Appeal No.269 of 2019. Similarly, paper No.115C is the sale deed dated 15.09.1988 of plot Nos.1998 and 1999. The acquisition of plot Nos.1994, 1997 and 2000, are subject matter of above noted First Appeal No.212 of 2017. These two sale deeds were executed by individuals to two Sahkari Awas Samitis. The sale deed paper No.110C is of the same plot which has been acquired under the present acquisition and paper No.115C is the sale deed of adjoining plots, which are subject matter of the aforesaid two First Appeals. These two sale deeds are in proximity of time of the present acquisition. Sale deed (paper No.110C) was executed about seven months before the present acquisition while the sale deed (paper No.115C) was executed about 4 months before the present acquisition. The finding of the court below in the impugned judgments upon contention raised by the claimants that these two sale deed exemplars and other sale deed exemplars filed by the appellants herein do not reflect the correct market value, appears to be not sound but wholly baseless. By these two sale deeds, the property was sold by individuals to two residential housing societies. Therefore, without any reliable evidence on record, it cannot be assumed that these sale deeds do not reflect the true consideration. Mere vague allegation of suppression of consideration by individuals while selling land, deserves to be outrightly rejected. A similar question came for consideration before Hon'ble Supreme court in the case of Lal Chand vs. Union of India, {(2009) 15 SCC 769 (para-76 to 79)} and the Hon'ble Supreme Court held as under:
"76. This takes us to the value of "undervalued" sale deeds. When the respondents rely upon certain sale deeds to justify the value determined by the Land Acquisition Collector or to show that the market value was less than what is claimed by the claimants, and if the claimants produce satisfactory evidence (which may be either with reference to contemporaneous sale deeds or awards made in respect of acquisition of comparable land or by other acceptable evidence) to show that the market value was much higher, the sale deed relied upon by the respondents showing a lesser value may be inferred to be undervalued, or not showing the true value. Such deeds have to be excluded from consideration as being unreliable evidence. A document which is found to be undervalued cannot be used as evidence.
77. But we have noticed a disturbing trend in some recent cases, where a court accepts the sale deed exhibited by the claimants as the basis for ascertaining the market value. But then, it also accepts a contention of the claimants that the general tendency of members of public is not to show the real value, but show a lesser value to avoid tax/stamp duty and therefore the sale deeds produced and relied on by them, should be assumed to be under valued.
78. On such assumption, some courts have been adding some fancied percentage to the value shown by the sale deeds to arrive at what they consider to be `realistic market value'. The addition so made may vary from 10% to 100% depending upon the whims, fancies, and the perception of the learned Judge as to what is the general extent of suppression of the price in sale deeds. Such increase, in the market value disclosed by the sale deeds, on the assumption that all sale deeds show a `depressed' market value instead of the real value, is impermissible. The Court can either accept the document as showing the prevailing market value, in which event it has to be acted upon. Or the Court may find a document to be undervalued in which it should be rejected straightaway as not reliable. There is no third way of accepting a document, by adding to the market value disclosed by the document, some percentage to off- set the under-valuation.
79. There is no legal basis to proceed on a general assumption that parties, without exception, fail to reflect the true consideration in the sale deeds, that there is always undervaluation or suppression of the true price and that consequently, all sale deeds reflect a depressed value and not the real market value and therefore, some percentage should be added to arrive at the real value. Such a course also amounts to branding all vendors and purchasers as dishonest persons without any evidence and without hearing them. It ignores the fact that government has fixed minimum guideline values and whenever a registering authority is of the view that a sale deed is undervalued, proceedings are initiated for determination of the true market value. It also ignores the fact that a large number of sale deeds are accepted by the registering authorities as disclosing the current market value. Be that as it may."
(Emphasis supplied by me)
38. In Bangaru Narshinga Rao, Naidu and others vs. Revenue Divisional Officer Vizianagaram, {(1980) 1 SCC 575 (para-2)}, Hon'ble Supreme Court observed that there cannot be any doubt that the best evidence of the market value of the acquired land is afforded by transactions of sale in respect of the very acquired land provided of course there is nothing to doubt the authenticity of the transactions. In the case of Ranvir Singh and others vs. Union of India, (2005) 12 SCC 59, Hon'ble Supreme court reiterated the well-settled principle that the sale deeds pertaining to portion of lands which are subject to acquisition would be the most relevant piece of evidence for assessing the market value of the acquired lands. Similar view has been taken by Hon'ble Supreme Court in various other judgments including the judgment in Special Tehsildar Land Acquisition, Vishakhapattanam vs. A Mangala Gowri (Smt.) (1991) 3 SCR 472 and T.S. Ramchandra Shetty vs. Chairman Karnataka Housing Board and others {(2009) 14 SCC 334}.
39. The impugned judgments of the reference court in rejecting the sale deed exemplars and relying upon auction bid/ lease deeds of dates subsequent to acquisition, is wholly erroneous, contrary to the mandate of Section 23(1) of the Act and also contrary to the law laid down by Hon'ble Supreme Court in the judgments referred hereinabove including the judgments in the case of Executive Engineer, Karnataka Housing Board (supra), Lal Chand (supra), Chimanlal Hargovinddas (supra), Major General Kapil Mehra (supra), Manoj Kumar and others (supra) and Bhupal Singh (supra). However, it is clarified that if any relevant and bona fide sale deed exemplars of higher value, were available then the reference court should have considered those sale deed exemplars also to determine the market value. During the course of the arguments, learned counsel for the respondents has stated that the claimants have filed some sale deed exemplars being paper Nos.33C to 42C in L.A.R. No.968 of 2003 (Kalua & Ors Vs. Collector) from which the present First Appeal No.212 of 2017 arise, which discloses selling rate of similar land ranging from Rs.155.84 to Rs.300/- per square yard. However, copies of all these sale deeds have not been filed with the paper book in First Appeal No.212 of 2017. If these sale deeds were available in evidence, then it must have been considered by the reference court.
Whether market value of wholly developed land can be compared with under developed land:-
40. The principles of law as settled by Hon'ble Supreme Court in various judgment including the judgments afore-noted, leaves no manner of doubt that the market value of wholly developed land cannot be compared with the under-developed land although it may be adjoining or situated at a little distance. In Ranvir Singh and others vs. Union of India {(2005)12 SCC 59 (para-26)}, Hon'ble Supreme Court held that "While adopting the said method, in our opinion, the High Court committed manifest errors. The market value of fully developed land cannot be compared with wholly underdeveloped land although they may be adjoining or situated at a little distance. For determining the market value, it is trite, the nature of the land plays an important role."
41. In Bhim Singh and others vs. State of Haryana (2003) 10 SCC 529 (para-10), Hon'ble Supreme Court considered the similar matter and held as under:
"It was next submitted that the claimants were entitled to higher compensation as the Respondents had in 1989 auctioned plots of land at the rate of Rs. 1725 to Rs. 2510 per square yard. In our view this submission merely needs to be stated to be rejected. What price is fetched after full development cannot be the basis for fixing compensation in respect of land which was agricultural."
(Emphasis supplied by me)
42. The submission of learned counsel for the claimants-respondents that bona fide post notification sales in the form of lease deed exemplars have been rightly relied by the reference court, does not hold good and deserves rejection in view of the discussions made above, and the law laid down by Hon'ble Supreme court in catena of judgments.
43. The conclusion reached by the reference court in para-71 of the impugned judgment is based on discussion made on issue No.1 which is not based on the situation existing as on the date of acquisition, i.e. 30.01.1989 but is mainly based on developments which took place much subsequently. No documentary evidence could be led by the claimants that any five star hotel or even residential houses were existing over the plots of Taj Nagari Phase-I Scheme when the land in question under Taj Nagari Phase-II Scheme was acquired on 30.01.1989. No documentary evidence could be led by the claimants to establish that any five star hotel was existing over a similar land in close proximity of the acquired land as on the date of acquisition. The evidence of DW-1 Raghuraj Singh Lekhpal (who was posted in Tehsil Sadar Agra only in the year 2012) was recorded on 22.12.2016 who in his cross examination, described the existence of hotel and a mall etc. as on the date of his cross-examination and not on the date of acquisition, i.e. 30.01.1989. The evidence of PW-1 Rahis Khan was filed in the form of Affidavit dated 21.11.2016 who described in Para-14, existence of some hotels at a distance of 2-3 kms. built in the year 1988. He also could not support it by any documentary evidence. That apart, these hotels even if existing as on the date of acquisition, cannot be said to be in close proximity of the acquired land from time angle and situation angle. He admitted in para-34 that award was received under protest. In rest of the paras, he merely described the developments over the land of Taj Nagari Phase-I which were undisputedly leased/ sold much subsequent to the present acquisition. In his cross-examination, he admitted that at the time of acquisition, agriculture was carried over the acquired land. He also admitted in his cross-examination that the lease deed of Plot No.1 was executed by the A.D.A. after fully developing it. Thus, the lease deed of the aforesaid plot No.1 and 5 of Taj Nagari Phase-I Scheme, which have been made basis to determine market value of the land acquired on 30.01.1989 are wholly irrelevant and are not good exemplars for determination of market value of the land acquired on 30.01.1989, yet these exemplars and the evidence of P.W.-1 have been heavily relied by the reference court without application of mind and without consideration of the fact that at the time of acquisition the acquired land was being used for agriculture. Such an approach is also contrary to law laid down by Hon'ble Supreme Court in various judgments including the judgment in Bhim Singh's case (supra)
44. In the impugned judgment, the bid/ lease deed of plot No.1 dated 11.06.1993 and the lease deed of plot No.5 dated 15.07.1993 of land of 'Taj Nagari Phase-I Scheme' (Ext.14 and Ext.2 respectively) executed by the appellant A.D.A. after fully developing the aforesaid plots, have been made basis to determine compensation of the land acquired on 30.01.1989 for 'Taj Nagari Phase-II Scheme'. In Civil Appeal No.4879 of 2018 {New Okhla Industrial Development Authority (NOIDA) VS. Deo Karan & Ors.} decided on 1.5.2018, Hon'ble Supreme Court considered the question of determination of market value of land acquired in the year 1980-82 on the basis of market value determined in a case with respect to the land acquired on 24.03.1988 and observed, as under:
"In the case of Raghuraj Singh (supra), Notification under Section 4 was issued on 24.3.1988, i.e., much later than the Notifications in question issued in 1980 and 1982. Again the reliance was placed on Raghuraj Singh (supra), which also relied upon the agreement to sell dated 12.01.1989. The aforesaid course adopted by the High Court, was wholly impermissible and bad in law. The way in which the High Court had determined the compensation, that too on the basis of the agreement to sell, was not a satisfactory or permissible way of arriving at the valuation in the aforesaid decision on which reliance had been placed. Thus, aforesaid decisions of Jagdish Chandra and Raguraj Singh could not have been relied upon for basing the determination of value with respect to the Notifications issued in the years 1980 and 1982. We are shocked that how the High Court hasdetermined the same valuation for the notifications issued in the years 1980 and 1982, when the rates were determined in the aforesaid cases of Jagdish Chandra and Raghuraj Singh with respect to the Notifications under Section 4 issued in the years 1987 and 1988.
6. We record our dissatisfaction towards the slipshod and perfunctory manner and the hazardous way in which the compensation was determined by the High Court, that too on the basis of agreement to sell."
(Emphasis supplied by me)
45. In the light of the afore-quoted observations made by Hon'ble Supreme Court in the case of Deo Karan (supra) the approach adopted by the reference court to pass the impugned judgments, determining the market value of the agricultural land acquired under the present acquisition by notification dated 30.01.1989; on the basis of consideration mentioned in the bid/ lease deed dated 11.06.1993 of fully developed commercial plot No.1 and the lease deed dated 15.07.1993 of fully developed commercial plot No.5, both of 'Taj Nagari Phase-I Scheme', is wholly impermissible and bad in law.
46. In view of the above discussion, I hold that in the impugned judgments, the reference court has committed manifest error of law in determining the market value of the land acquired on 30.01.1989 for 'Taj Nagari Phase-II Scheme'. Subsequent auction/ lease deeds of developed commercial plots of 'Taj Nagari Phase-I Scheme' cannot be made basis to determine market value of the previously acquired land by the appellant for 'Taj Nagari Phase-II Scheme' particularly when relevant sale deed exemplars were filed in evidence. Both the question Nos.(b) and (c) are answered accordingly.
CONCLUSIONS
47. Detail discussion and conclusions reached above are briefly summarised, as under:
(i) The ratio decidendi is the underlying principle, namely, the general reasons or the general grounds upon which the decision is based on the test or abstract from the specific peculiarities of the particular case which gives rise to the decision. The ratio decidendi has to be ascertained by an analysis of the facts of the case and the process of reasoning involving the major premise consisting of a pre-existing rule of law, either statutory or judge-made, and a minor premise consisting of the material facts of the case under immediate consideration. The abstract ratio decidendi, as ascertained on a consideration of the judgment in relation to the subject matter of the decision, which alone has the force of law. It is always dangerous to take one or two observations out of a long judgment and treat them as if they gave the ratio decidendi of the case. A decision is an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically flows from the various observations made in the judgment
(ii) Since the question regarding relevant date for determining market value for the purposes under Section 23(1) of the Act has been specifically decided and principle of law in this regard has been laid down by Hon'ble Supreme Court in the case of Kolkata Metropolitan Development Authority (supra) and as such respectively following the aforesaid judgment, I hold that the relevant date for determining market value for the purposes of compensation under Section 23(1) of the Act, shall be the date of publication of notification in the Gazette under Section 4(1) of the Act. The date of publication of notice as provided under Section 4(1) of the Act shall not be relevant. Therefore, in the present set of facts, 30.01.1989 being the date of publication of notification in the official Gazette under Section 4(1) of the Act, is the relevant date for determining market value for the purpose of compensation under Section 23(1) of the Act. Question No.(a) is answered accordingly.
(iii) Market value of land acquired under the Act has to be determined by the court as on the date of the publication of the notification in the Gazette under Section 4(1) of the Act.
(iv) 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.
(v) 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.
(vi) 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. 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.
(vii) 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.
(viii) When there are several exemplars with reference to similar lands, it is the general rule that the highest of the exemplars, if it is a bonafide transaction has to be considered and accepted.
(ix) 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 as on the date of acquisition.
(b) Existing use of the land as on the date of acquisition.
(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.
(x) 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".
(xi) Market value is determined with reference to the open market sale of comparable land in the neighbourhood of a willing seller to a willing buyer on or before the date of preliminary notification under Section 4(1) of the Act, as that would give a fair indication of market value. Auction sales stand on different footing. When purchasers start bidding for a property in an auction, an element of competition enters into the auction. In a well advertised open auction-sale, there is always a tendency for the price of the auctioned property to go up considerably, whereas in case, the auction-sale by banks or financial institutions to recover dues, there is an elements of distress, which have the effect of dampening the enthusiasm of bidders and making them cautious, thereby depressing the price. Therefore, when other regular sale transactions are available for determining market value of the acquired land, it would not be safe to rely upon an auction sale. But where an open auction sale is the only comparable sale transaction available on account of proximity in situation and proximity in time to the acquired land, the court may with caution, rely upon the price disclosed by such auction sales, by providing an appropriate deduction or cut to off-set the competitive-hike in value.
(xii) The lease deed exemplars of plot Nos.1 and 5 are of two commercial plots of "Taj Nagari Phase-I Scheme". Lease deeds of these plots and other few commercial plots were made after three or four years of the present acquisition, i.e. between the year 1992 to 1995. Much thereafter, the construction took place and hotels were established over it. The land for "Taj Nagari Phase-II Scheme" i.e. the present acquisition was basically acquired for residential purpose on 30.01.1989, i.e. much prior to the leases of commercial Plot Nos.1 and 5 of Taj Nagari Phase-I Scheme. Even under "Taj Nagari Phase-I Scheme", the residential plots were sold after full development, approximately at about Rs.300/- per square meter. Even some commercial plots of "Taj Nagari Phase-I Scheme" for Five Star Hotels were allotted/ leased between the year 1992 to 1995 ranging from Rs.323/- per square meter to Rs.717.20 per square meter depending upon its location. These plots could also not be proved to be in proximity in situation to the acquired land. Thus, these auction/ lease deeds of few commercial plots of "Taj Nagari Phase-I Scheme" are neither in proximity in time to the acquired land nor in close proximity in situation nor it has any similarity to the acquired land. The acquired land is agricultural land while the aforesaid auctioned/ leased plots were fully developed commercial plots from amongst the total area of 85.47 acres land acquired under the "Taj Nagari Phase-I Scheme" in which the major portion was developed as housing plots.
(xiii) In the present set of facts, the sale deed exemplar Paper No.110-C is the sale deed dated 28.05.1988 for sale of plot No.203 which was filed in evidence. This plot No.203 was acquired and it is subject matter of the abovenoted First Appeal No.269 of 2019. Similarly, paper No.115C is the sale deed dated 15.09.1988 of plot Nos.1998 and 1999. The acquisition of plot Nos.1994, 1997 and 2000, are subject matter of above noted First Appeal No.212 of 2017. These two sale deeds were executed by individuals to two Sahkari Awas Samitis. The sale deed paper No.110C is of the same plot which has been acquired under the present acquisition and paper No.115C is the sale deed of adjoining plots, which are subject matter of the aforesaid two First Appeals. These two sale deeds are in close proximity in situation and time of the present acquisition. Sale deed (paper No.110C) was executed about seven months before the present acquisition while the sale deed (paper No.115C) was executed about 4 months before the present acquisition. The finding of the court below in the impugned judgments upon contention raised by the claimants that these two sale deed exemplars and other sale deed exemplars filed by the appellants herein do not reflect the correct market value, appears to be not sound but wholly baseless. By these two sale deeds, the property was sold by individuals to two residential housing societies. Therefore, without any reliable evidence on record, it cannot be assumed that these sale deeds do not reflect the true consideration. Mere vague allegation of suppression of consideration or under-valuation by individuals while selling land, deserves to be outrightly rejected.
(xiv) Sale deeds pertaining to portion of lands which are subject to acquisition would be the most relevant piece of evidence for assessing the market value of the acquired lands.
(xv) The impugned judgments of the reference court in rejecting the sale deed exemplars and relying upon bid/ lease deeds of dates subsequent to acquisition, is wholly erroneous, illegal, contrary to the mandate of Section 23(1) of the Act and also contrary to the law laid down by Hon'ble Supreme Court. During the course of the arguments, learned counsel for the respondents has stated that the claimants have filed some sale deed exemplars being paper Nos.33C to 42C in L.A.R. No.968 of 2003 (Kalua & Ors Vs. Collector) from which the present First Appeal No.212 of 2017 arise, which discloses selling rate of similar land ranging from Rs.155.84 to Rs.300/- per square yard. However, copies of all these sale deeds have not been filed with the paper book in First Appeal No.212 of 2017. If these sale deeds were available in evidence, then it must have been considered by the reference court.
(xvi) Market value of wholly developed commercial plots cannot be compared with the under-developed or undeveloped or agricultural land although it may be adjoining or situated at a little distance. What price is fetched after full development of commercial or residential plots cannot be the basis for fixing compensation of agricultural land.
(xvii) In the impugned judgments, the reference court has committed manifest error of law in determining the market value of the land acquired on 30.01.1989 for 'Taj Nagari Phase-II Scheme'. Subsequent auction/ lease deeds of developed commercial plots of 'Taj Nagari Phase-I Scheme' cannot be made basis to determine market value of the previously acquired land by the appellant for 'Taj Nagari Phase-II Scheme' particularly when the relevant sale deed exemplars were filed in evidence. Both the question Nos.(b) and (c) are answered accordingly.
48. For all the reasons afore-stated, the impugned judgments in land acquisition references as mentioned in para-7 above, cannot be sustained and are hereby set aside and all the First Appeals filed by the appellant Agra Development Authority are allowed. The cross-objections filed by the claimants are disposed of. Matters are remitted back to the reference court to decide the references afresh in accordance with law in the light of the observations made above, expeditiously preferably within six months from the date of presentation of a certified copy of this order, without granting any unnecessary adjournments to either of the parties.
Order Date :- 25.07.2019 NLY