Andhra HC (Pre-Telangana)
Land Acquisition Officer (Special ... vs J. Shadraik And Ors. on 29 January, 1996
Equivalent citations: 1996(3)ALT1102, 1996 A I H C 5099, (1996) 3 ANDHLD 774 (1996) 3 ANDH LT 1102, (1996) 3 ANDH LT 1102
Author: P. Venkatarama Reddi
Bench: P. Venkatarama Reddi
JUDGMENT G. Bikshapathy, J.
1. The present Appeal has been preferred by the Land Acquisition Officer against the decree and Judgment of the Principal Subordinate Judge, Warangal in O.P.No. 118 of 1984, dated 24-4-1987. The cross-objections have also been filed by the respondents/Claimants seeking enhancement of the compensation awarded by the Land Acquisition Officer. Therefore, both the Appeal and cross-objections are dealt with in this order.
2. A total extent of Ac. 30-01 gt., consisting of Ac. 20-18gts. wet land and Ac. 9-23 gts. dry land was acquired by the Government for the purpose of construction of Kakatiya main canal from K.M. 231 to 232. These lands are situate in S.Nos. 15, 17 to 20, 22 to 30, 37 to 40, 1, 2, 70 and 336 of Deshaipet and Enumamila villages abutting Warangal town. The Gazette Notification Under Section 4 (1) of the Land Acquisition Act was published on 16-3-1979 and the possession of land was taken on 25-6-1980. The Land Acquistion Officer passed Awards in two spells. The first award was passed on 27-8-1982 in Award No. 1/82-83. and the second award was passed on 5-2-1983.in Award No. 2/82-83. The Land Acquisition Officer fixed the compensation @ Rs. 3,377/- and Rs. 5,050/- per acre in respect of the wet lands and Rs. 3,077/- in respect of the dry lands. He also fixed the compensation in respect of wells which are existing in the acquired land belonging to the claimants. Aggrieved by the fixation of the compensation, the claimants sought a reference to the Civil Court Under Section 18. On reference, the Civil Court adjudicated the matter in O.P.No. 118/84. Ten witnesses were examined for the claimants arid Exs. A-1 to 10 were marked. Two witnesses were examined for the Respondents and Exs.B-1 to B-15 were marked. The Civil Court passed judgment and decree on 24-4-1987 enhancing the compensation from Rs. 5,050/- per acre in respect of the wet lands to Rs. 18/- per sq. yard and from Rs. 3,077/- per acre to Rs. 15/- per sq. yard in respect of the dry lands. Similarly, the court below enhanced the compensation in respect of the wells belonging to the claimants. Aggrieved by the said enhancement, the present Appeal has been preferred by the Land Acquisition Officer.
3. The learned Government Pleader for the Appellant submits that the court below erred in enchancing the compensation basing on the sale deeds filed by the claimants which are neither admissible in evidence nor the parties concerned in the transaction were examined in support of the documents. He also submits that the lower court erred in rejecting the Award of the Land Acquisition Officer without proper consideration. He also submits that the sale deeds filed by the Claimants for the purpose of claiming the enhanced compensation cannot be relied on inasmuch as the lands covered by the said sale deeds are situated far away from the acquired lands and that the said lands are in Warangal Municipality. Hence, he submits that the proper evaluation of the documents has not been done by the court below. Lastly, he submits that enhancement in respect of wells is also unwarranted and mere is no evidence adduced by the claimants in support of their claim for enhancement.
4. The learned counsel for the Claimants Sri. V. Rajendra Babu and Sri B. Narayana Reddy submit that the reasons assigned by the court below are quite legal and valid. The lands are situate abutting the peripheral area of Warangal Municipality and some of the lands are partially situate in Municipality and some of them are outside Municipality area. But however all the lands are within the urban agglomeration and they have a potential value for the construction of houses and therefore the enhancement ordered by the court below is quite reasonable and justified. Hence, they submit that there are no irregularities or illegalities in the judgment under appeal and the same has to be confirmed in appeal.
5. It is not in dispute that various aspects have to be considered while dealing with the fixation of the compensation under Land Acquisition Act. The topography of the land, the nature of the land, the crop raised on the land, the agriculture and irrigational facility, the proximity to the residential areas, facilities available abutting the land, transport, communication etc, are relevant factors. The above considerations are only illustrative and not exhaustive. Having regard to the location and potentiality of the land, the Land Acquisition Officer was not justified in valuing the acquired lands as agricultural lands discarding the sale deeds relating to the house sites situate in nearby survey numbers sold at square yard basis. The learned Subordinate Judge was, therefore, justified in finding fault with the method of assessment made by the Land Acquisition officer and estimating the market value with reference to sale deeds of house sites in the village.
6. Ex. A-1 is the Xerox copy of the sketch issued by the Town Planning Office, Warangal Municipality dated 24-9-1985. Ex. A-2 is the Xerox copy of the map showing the situation of the acquired lands in the village of Enumamila. It is not in dispute that the lands are situated in Deshaipet and Enumamila Villages an it has to be seen as to the rate at which the lands either in the same village or in the abutting places are disposed of and if so their relevancy in fixing or enhancing the compensation. Ex.A-3 is the xerox copy of the Registered sale deed executed by Smt. O. Mallikamba in favour of T. Durgaiah on 6-1-1979 in S.No. 194 of Deshaipet. To prove this document, none of the witnesses were examined.
7. The contention of the learned Govt. Pleader is that the court below wrongly relied on Ex. A-4 and Ex. A-10 for the purpose of enhancing the compensation. He submits that Ex. A-4 is the sale deed dated 6-1-1978 executed by T. Durgaiah in favour of G. Padma in S.No. 194 of Deshaipet in respect of residential plot of land of 320 sq. yards for a sum of Rs. 5,500/. The rate per sq. yard works out to Rs. 17.80 per sq. yard. But he submits that neither the Vendee nor Vendor were examined in support of the document and therefore the Court below ought not to have admitted the said documents and relied on the same. He seeks reliance on the decision of the Supreme Court in Kummari Veeraiah and Ors. v. State of A.P., (D.N.). and submits that the xerox copy of the Registered sale deed cannot be taken into account and also since neither the Vendee nor the Vendor were examined, the same cannot be looked into for the purpose of fixing the market value. The Supreme Court while dealing with the admissibility of the certified copies of sale deeds held, thus:
" It is true that the certified copies of the sale deeds are admissible in evidence as secondary evidence Under Section 51-A of the Act since owners would be reluctant to part with their original sale deeds. But unless either the vendor or the vendee has been examined as witness to testify not only the consideration paid but also their specific knowledge and the circumstances in which the sale deed came to be executed, nearness to the lands etc, the sale deeds cannot be relied on to determine market value of the acquired lands. The true nature and situation of the respective lands are relevant and germane as comparable sales for determination of the compensation and are required to be brought on record through admissible evidence and tested on the anvil of common experience"
Thus, it is clear that even though the certified copy of the sale deed is admissible as secondary evidence, yet unless the Vendee or Vendor or some-one connected with the document is examined as a witness, the sale deed cannot be relied on to determine the market value of the acquired lands. Admittedly in the instant case, neither the Vendee nor the Vendor were examined in support of the sale deed and therefore Ex. A-4 has to be discarded. The next document that is relied on by the Lower Court is Ex. A-10. It is a certified copy of the order in O.P. No. 151 /83 on the file of the Additional Subordinate Judge, Warangal. The said O.P. relates to the claim made by the claimants for enhancement of compensation in respect of S.Nos.42, 378384, 379 and 383 situated at Hanamkonda and Matwada villages in the Warangal town for the purpose of laying kakatiya canal. As per the evidence available on record in the said case to the East of the land, mere is a residential locality (S.B.H. Colony), on the western side there is 80 ft. road and also M.G.M. Hospital and Central Prison on the northern side of the acquired lands there is a residential colony i.e. Gautam Nagar Colony consisting of residential houses, 50 yards away from the acquired land. On the south there are houses and house plots. Thus the said lands were in the Municipal limits of Warangal town and they are almost in the centre of the City and the area was well developed by the date of acquisition itself.
It is also brought to our notice that against the judgment in OP.No. 151 /83, an appeal has been preferred by the claimants and this court enhanced the compensation to Rs. 23/ - per sq. yard and that became final. Thus the question that arises for consideration is whether Ex. A-10 can be relied on. The Supreme Court in Paul Singh and Ors. v. Union Territory of Chandigarh, held thus:
"No doubt a judgment of a court in a Land Acquisition Case determining the market value of the land in vicinity of the acquired land, even though not interpartes could be admitted in evidence. Either as the instance or one from which the market value of the acquired land should be deduced or inferred..........But what cannot be over looked is mat for a judgment relating to value of land could be admitted in evidence either as a instance or as one from which the market value of the acquired land could be inferred or deduced, must have been a previous judgment of court and as an instance, it must have been proved by the person relying upon such judgment by adducing evidence aliunde that due regard being given to all attendant facts and circumstances, it could furnish the basis for determining the market value of the acquired land"
Thus what is required is that a proper evidence should be adduced by the person claiming enhancement so as to establish mat the said judgment could furnish the basis for determining the market value. As already stated supra, there is no evidence to establish that the lands acquired in that case are on comparable degree with the lands situated in Deshaipet and Enumamila villages. More over the lands are situated almost in the centre of the town as observed by the Court in that O.P. and therefore, it cannot be taken as basis for fixing the market value of the land in the instant case.
8. The Supreme Court in K. Posayya and Ors. v. Special Tahsildar, fixed various guidelines as to how the market value has to be assessed. Paras 6 and 7 of the said judgment are extracted below:
"It is settled law that market value is to be determined either on the basis of the prevailing prices of sale and purchase between willing vendor and willing vendee or value of the crops realised applying suitable 10 years multiplier or in case of land valued by expert valuer like urban properties could be considered for determination of the compensation. Market value cannot be fixed with mathematical precision but must be based on sound discretion exercised by the reference Court in arriving at a just and reasonable price. It should not be based on feats of imagination or flight of fancy. Determination of compensation for compulsory acquisition involves consideration of the price which a hypothetical willing purchaser can be expected to pay for the lands in the existing use as well as relatable potentialities. The acid test is the arm chair of the willing vendor would offer and a prudent willing buyer, taking all relevant prevailing conditions of the normal market, fertility of the land, location, suitability of the purpose for which it was purchased, its existing potentialities and likely use to which the land is capable of being put in the same condition would, offer to pay the price, as on the date of the notification. In case of acquisition of large tracts of lands for projects situated in several villages, stray sale deed of small extent here and there would not form the basis to determine the compensation. The reference court should be circumspect pragmatic and careful in analysing the evidence and arriving at just and fair market value of the lands under acquisition which could be fetched on me date of me notification. The nature of the land, the crops raised and the nature of the income likely to be derived from the lands, the expenditure to be incurred for raising the crops and the net profits etc. would be the relevant factors in arriving at the net market value and if evidence is produced in mat behalf on its basis applying the suitable 10 years multiplier, the market value need to be determined. The owner or claimant should not be put to loss by under valuation. But, at the same time public exchequer should not be put to undue burden by excess valuation. It is the statutory duty of the court to maintain the balance between diverse interests.
Claimant stands in the position of plaintiff and the onus is on him to adduce necessary and relevant evidence in" proof of the objection for higher compensation. The court is also enjoined to carefully scrutinise and analyse the evidence and applying the add test of a prudent purchaser and a willing vend or or the realised income on the crops, the true, correct and fair market value should be arrived at"
9. The only other documents that have to be considered are Exs.A-5, A-6, A-7 and A-8. Ex. A-6 is a sale deed dated : 19-1-1979 executed by Mr. Noor Mohammed in favour of Rajmallu in respect of a plot of land situated in S.No. 41, the rate was fixed at Rs. 20/- per sq. yard. However, this document cannot be relied on as neither of the parties were examined in support of the document. As held by the Supreme Court in the case cited supra (3), this document cannot be relied on.
10. Coming to Ex. A-8 it is a sale deed dated: 20-12-1978 executed by Donepudi Venkateshwar Rao in favour of Mamidala Venkatnarayana, the rate was fixed @ Rs. 41-30ps. per sq.yard. However in the said document, the details of survey number and the situation of the land have not been given. Only ward No. 11 is mentioned in the sale deed. It is in the evidence of P.W.10 that the land under Ex. A-10 is at a distance of two furlongs from Deshaipet Abadi, and it is at a distance of one furlong from Telephone Bhavan towards Deshaipet. This document also cannot be of any assistance to the claimants in as much as the Survey Number has not been mentioned and it seems to have more advantageous location.
11. There remains only Exs. A-5 and A-7 which can be considered for the purpose of fixation of the market value. Ex. A-5 is a sale deed dated; 19-1-1979 executed by Noor Mohammad in favour of Shaik Bhangi in respect of plot of land of 425 sq. yards. The rate comes to Rs. 20/- per sq. yard. Similarly Ex. A-7 is sale deed dated: 4-1-80 executed by Abdul Hakeem in favour of Shaik Bhangi Saheb in respect of 190 sq. yards. The land was sold @ Rs. 26.30 ps. per sq. yard. The said land is situated in S.No. 247 of Warangal. The evidence was adduced in respect of these two documents The Vendee Shaik Bhangi Saheb was examined in support of the documents. It is stated that the site purchased under Ex. A-5 was for construction of house and a house was constructed and he is residing in the said house. The site is at a distance of two furlongs from the Telephone Bhavan situated at Warangal. The C.K.M. College is at a distance of three furlongs. Deshaipet village is abutting C.K.M. College. The witness stated that he also purchased lands under Ex. A-7. In the cross-examination he also stated that by the time he purchased the said two sites, there were already houses around the area. Thus, it is seen that only two documents could be relied on for the purpose of assessing the market value. The genuineness of the documents also cannot be doubted inasmuch as when the witness purchased in 1979, the rate was Rs. 20/- while in 1980 the rate was at Rs. 26.30ps. Thus, mere is an increase in the rate which signifies the development of the area. It is also noticed from the judgment that though the learned Judge has stated that the value per sq.yard has been fixed after deducting 1/3rd of the area from the lands acquired, there is no basis for such a conclusion. It is seen from the evidence and the plan (Ex. A-1), part of the area is in Municipal limits and part of it outside the Municipality. It is seen from the order that no deduction at all has been made. The lower court has fixed Rs. 18/- per sq. yard in respect of wet land and Rs. 15/- per sq. yard in respect of the dry land. From Ex. A-1 it is seen mat the lands covered by Ex. A-5 and A-7 are at a distance of three or four furlongs to the acquired lands. Moreover they are in a more developed area as compared to the acquired lands and they are small plots of land. The fact that the acquired lands are in proximity to the lands covered by Ex. A-5, that they are situated in periphral area of Warangal Municipality and the fact that the learned Judge did not make any deduction towards development such as Roads, Parks etc. and keeping in view the guidelines laid down by the Supreme Court in the case cited supra (3), we feel that it is just and reasonable to fix the market value of the land both wet and dry at the rate of Rs. 12/- per sq. yard. We find no justification for fixing the rate of wet lands at more than dry lands, when the land acquired valued as house-sites.
12. Coming to the issue relating to the enhancement of the compensation in respect of wells situated in the acquired lands, the learned Govt. Pleader submits that there is no evidence to enhance the compensation. No evidence much less the evidence of Technical Expert was adduced. Therefore, in the absence of any evidence, the lower court ought not to have enhanced the compensation. He further submits that the very award of compensation is illegal and unwarranted. He draws the support from the judgment of the Supreme Court in O. Janardhan Reddy and Ors. v. Spl. Dy Collector (Land Acquisition), (D.N.). In the said case the lands were acquired for submergence under the waters of Manerudam. On a reference by the Land Acquisition Officer, the Civil Court enhanced the compensation in respect of the agricultural lands and also the wells situated in the acquired lands. On an appeal the High Court confirmed the enhancement of the market value ordered by the civil court, but however refused to uphold the enhanced market value given for the irrigation wells, but however on its own, the High Court enhanced the market value of the irrigation wells at 95% of their market value determined by the Land Acquisition Officer finding justification for such an enhancement on the basis of another Award of the civil court wherein such enhancement for the market value of the irrigation wells had been given. Against the said enhancement made by the High Court, the claimants again approached the High Court for further enhancement. However, the Supreme Court was concerned in that appeal with the enhanced compensation sought for irrigation wells, since at the time of grant of Leave, the Appeal was restricted to the consideration of the grant of enhanced compensation to the Appellants to their irrigation wells. While dealing with the compensation for the irrigation wells, the Supreme Court observed thus:
"When agricultural lands are acquired under the Act, the owners of such lands or persons who have interest in them become entitled to payment of compensation available for such lands under the Act. The main component of such compensation would be the market value of the acquired agricultural land. Market value of agricultural land has to be determined under the Act with reference to me date on which preliminary notification was published in the State Gazette proposing its acquisition and according to the price which a buyer interested in agriculture would have paid for it to the owner having regard to its soil, the irrigation and other facilities, it commanded for its maximum utilisation, for agricultural purposes. The highest factor that contributes to the market value of agricultural land, is the irrigation facility it commands, admits of no controversy. Irrigation facility commanded by the agricultural land is that water supply which it can command for crops to be grown on it Sources of such water supply, apart from rain water, may be river water, tank water, well water etc. Where river water or tank water is unavailable or is insufficient for cultivation of agricultural lands open irrigation wells are sunk. If the soil of the land in which they are sunk is likely to cave in, the same will be prevented by raising stone or brick or cement walls or by use of cement rings. The yield of water in wells vary from well to well. Intensive cultivation of agricultural land is done where the water yield of its irrigation well/wells is high. Such irrigation wells, even if had been dug up and walled effectively, may stop yielding water because of bore wells bored in the neighbouring lands or some other natural causes such as drought. In such events, the irrigation wells will become worthless. Hence, the advantage which an agricultural land may have because of the irrigation facility it had from the irrigation well, could only enhance the value of agricultural land depending upon the water yield from the well. Again when the agricultural land, the irrigation of which was possible from the water of the irrigation well, is acquired, the value of the land so acquired will have to be determined taking into consideration the irrigation facility it had from the well. In this situation the irrigation well in an acquired agricultural land, cannot have a value apart from the value of the agricultural land itself. The LAO, the Civil Court and the High Court, when have determined the market value of the irrigation wells and awarded compensation to the owners of those wells, having determined the market value of the acquired agricultural lands on the basis of nature of crops grown on them obviously taking into consideration, the water facility they had from the irrigation wells situated, in them, they have proceeed on a misonception that the market value of the irrigation wells had to be determined according to their construction costs and compensation was payable for them under the Act independently of the compensation payable for the agricultural lands. As the award of compensation for the irrigation wells of the appellants by the LAO, the Civil Court and the High Court was, in itself wholly unwarranted, question of granting by us further enhanced compensation for irrigation wells of the appellants situtated in their acquired agricultural lands cannot arise. Hence, this appeal of the appellants, the owners of the acquired agricultural lands, must necessarily fail"
Applying the said principle to the instant case, it has to be seen whether the fixation of separate value for the wells by the Land Acquisition Officer and enhancement made by the Civil Court is justified. It is not in dispute mat all the wells which are existing in the acquired lands are having sheds.
Therefore, apart from the wells, the other structures are to be compensated. More over the Land Acquisition Officer is aggrieved only to the extent of enhancement Thus, considering the facts and circumstances of the case and keeping in view the judgment of the Supreme Court, we feel that the enhancement of compensation in respect of the wells is not warranted. We are of the considered opinion mat the compensation as fixed by the Land Acquisition Officer in respect of the wells with sheds in acquired land is just and reasonable.
13. It is also to be noted that the land covered by S.No. 70 of Enumamila village are far away from the cluster of the lands acquired. In fact it cannot be compared with other lands acquired under the Notification. Therefore, necessarily a separate rate has to be fixed to the lands under S.No. 70 keeping the situation of the lands and the fixation made to the other acquired lands, we feel that it is just and proper to fix the rate at Rs. 10/- per sq.yard.
14. Accordingly, the decree and judgment of the Principal Subordinate Judge, Warangal in O.P.No. 118/84 dated 24-4-1987 is set aside. We direct that the compensation shall be paid @ Rs. 12/- per sq. yard in respect of the acquired lands both wet and dry lands. The claimants are entitled for other benefits under the Land Acquisition Act namely solatium, interest etc. as ordered by the lower court The enhanced compensation in respect of the wells is set aside and the claimants are entitled to the compensation as fixed by the Land Acquisition Officer together with other benefits as ordered by the Court below. The lands situated in S.No. 70 the compensation shall be paid @ Rs. 10/- per sq. yard. The Appeal is allowed to mat extent The Cross-objections are dismissed, as indicated above. There shall be no order as to costs.