Gujarat High Court
Santubhai Ranchodbhai Patel, Himself ... vs Spl. Laq Officer on 8 November, 2001
Equivalent citations: (2002)4GLR692
JUDGMENT B.C. Patel, J.
1. These appeals are preferred under Sec. 54 of the Land Acquisition Act, 1894 (hereinafter referred to as the Act) read with Sec. 96 of the Civil Procedure Code, 1908 against the common award made by the Reference Court (Second Extra Assistant Judge, Kheda at Nadiad) in Reference Case Nos. 134/86 to 141/86 dated 6.5.98 whereby the claimants were held entitled to get market price @ Rs.90/- per sq.mtr. for the lands acquired for which notification was published under Sec. 4 of the Act in 1984.
2. The claimants have preferred the appeals being First Appeal No. 4125/98, 4128/98, 4263/98 to 4267/98. The beneficiary, D.D.Institute of Technology preferred appeals being First Appeal No. 6281/98 to 6288/98. The State also preferred appeals being First Appeal Nos. 2078/99 to 2085/99, however, the registration has been refused and therefore the appeals preferred by the claimants as well as the beneficiary are required to be heard. These appeals are heard and disposed of by this common judgment as a common award was made by the Special Land Acquisition Officer, and the Reference Court also disposed of the same by a common award.
3. Notification under Sec. 4 of the Act was published on 13.9.84 for acquisition of lands situated within the municipal limits of Nadiad Municipality for D.D.Institute of Technology. After considering the documents, material evidence and hearing the claimants, ultimately award was made on 31.3.86 under Sec. 11 of the Act whereby the claimants were held entitled to Rs.20/- to 22/- per sq.mtr. The claimants submitted Reference Applications under Sec. 18 of the Act, claiming market price @ Rs.300/- per sq.mtr. and hence the Reference Court was required to determine the market price. On appreciation of evidence, the Reference Court awarded Rs.90/- per sq.mtr. by judgment and order dated 6.5.98. Being aggrieved by the said order made by the Reference Court, now the claimants and beneficiary are agitating before us for determination of the correct market price by stating that the Reference Court has committed error in appreciating the evidence, has wrongly applied the principles of law and has not considered the instances in accordance with law to determine the market price. Witnesses have been examined by the claimants as well as the State and the beneficiary. An expert is also examined by the claimants who has placed on record his opinion.
4. The Special Land Acquisition officer's award makes it clear that the D.D.Institute of Technology, Nadiad requested the State Government for acquisition of lands for establishment of an institute for the purpose of imparting education. The lands are situated at place known as Chaklasi pati of Nadiad town. In para 5 of the award, the Special Land Acquisition officer has observed that the lands are jirayat and kyari lands. Nadiad is a taluka headquarter of Kheda district. The claimants were the owners of small parcels of land and the smallest parcel was of 607 sq.mtr. Of course, the owner has other lands also. Single individual claimant was possessing a small parcel of 1922 sq.mtr. while the only one owner was possessing 4 parcels of lands admeasuring 12545 sq.mtr. The provisions contained in Urban Land (Ceiling and Regulation) Act were not made applicable to the town of Nadiad. The lands are situated in one block only at a distance of 1.25km. from Gamtal of Nadiad. As further pointed out by the Special Land Acquisition Officer, the lands are situated slightly interior but nearer to the national highway passing through the city. We will revert to this part at a later point of time as the claimants are stating that the lands have benefits of national highway and the road touching the national highway. It is further pointed out by the Special Land Acquisition Officer that to the west of the lands, there are buildings owned by the D.D.Institute, the beneficiary herein. On the southern side, there is Mahi canal. On the eastern side, there are open agricultural lands. He has further pointed out that on the western side, after leaving the national highway, there are educational institutes viz. J&J College and Ayurvedic college. He has also pointed out that there is a hospital on the western side. To the north of the acquired lands, there is survey no. 1044 where there is Satyam society; in survey no. 1041 there are other societies known as Kamlesh Park Society, Sardar Vallabhnagar, Laxmikunj society etc. He has specifically pointed out that to the north, east and west there is development while on the south i.e. after leaving Mahi Canal, there is no development. These are the findings recorded by Special Land Acquisition Officer. We will have to consider the evidence of the witnesses with regard to the development.
5. Witness Yogeshbhai Govindbhai Desai has stated before the Court that the lands in question are situated on the college road area just adjoining to DDIT college. Some houses have been constructed for residence in this area and the area is known as residential locality. He has further stated that luxurious houses are in existence in this area. He has further stated that nearby the lands, residential societies have been constructed. With regard to the facilities, he has pointed out that the lands acquired and the lands nearby have facilities of water, drainage and electricity. Just touching the lands in question, there are asphalt roads and the area is surrounded by colleges; there is a bus-stand, residential hotel, shopping centre and a market nearby. He has stated that nearby there is a Kidney hospital and civil hospital. He has also pointed out that there are private hospital and Ayurvedic hospital. In the cross-examination, he has stated that he is residing near the college campus in survey no. 1105 since his birth. At the relevant time, he was serving in Vidyanagar Science college and was residing at Nadiad. He has stated that the lands bearing survey no. 1094 to 1986 were not utilized. There was a well in survey no. 1094. He has admitted that the canal is just touching the lands in question where normally the water is available for all 12 months. Some times in summer, water may not be available. He has shown his ignorance about the cultivation in survey no. 1094 as also about the well and the engine. When he was put a question about the situation of the college, he has specifically stated that on the back side of the college, the lands are situated. He has admitted that just touching the lands, there is no asphalt road. He has denied the suggestion that before about 10 years there were no societies and people were not residing there. He has given exact location of Satyam society i.e. just behind Ayurvedic college. He has admitted that Satyam society is at a distance of 100 mtrs. from the lands acquired. He has admitted that civil hospital and kidney hospital are on Petlad road. When he was questioned, he further stated that on foot it will take 15 minutes time to reach. He has admitted that in the year 1986, nearabout the place, the lands were not available for commercial purposes. He has admitted that survey no. 1094 is slightly on the side. He had shown his ignorance about the transactions. Dr.Rohit Desai witness no. 3 has stated that the lands which were acquired were little interior. He has stated fairly that plot no. 16 or survey no. 1047 were not touching the asphalt road but he has pointed out that the national highway is just touching survey no. 1094. He has denied the suggestion in the cross-examination that there is no provision of the road on account of the hotels and office of the P.W.D. Witness Gordhanbhai Lallubhai has not thrown any light in his evidence with regard to the location and therefore in this behalf, we are not discussing his evidence.
6. On behalf of the beneficiary, Harshadbhai Motibhai Desai, Director of the Institute has stated that he has seen the lands in question. He has stated that survey no. 1129 is touching Nadiad-Anand state highway. The lands which are acquired have no independent road. According to this witness, there is passage for water flowing (in monsoon). He has stated that after leaving this water passage, the lands survey no. 1094 and other lands are situated. He has stated that survey no. 1102 & 1103 are situated at 700 mtr. from Nadiad-Anand road. On the north of the commerce college compound, there is P.W.D. office with compound. On the eastern side of this P.W.D. office, there is Ujala hotel. There is no passage to go to the lands acquired through Nalandanagar as a wall was erected in 1990. After the buildings of Nalandanagar, there is a canal touching survey no. 1103. There is no passage to come on the state highway from survey no. 1094 but one can go through the passage made near the canal. He has emphasized that in the year 1984, when the lands were acquired, there was no passage. The witness has stated that the lands which were acquired had no facility of well. He has given the distance of Vallabh park by stating that it is at one km. distance. He has specifically stated that to the west of the land, town planning scheme no. 3 was in force and in the year 1989, the town planner determined the market price Rs.46/-. After the year 1984, there was development on Petlad road. He has stated that he is working in college since about 25 years. He has stated that it is situated at 1 1/2 km from Mahagujarat hospital. The buildings in Uttam park society were erected in 1970. After Uttam park, there is Divya park society and Hill park society. He is aware about the transfer of property in Hill Park society. He has also admitted that even thereafter there is residential area. He has stated that Vallabh park society is at a distance of 500 mtr. There was sale of plot no. 38 in Nalanda society but he has pointed out that the transaction took place in 1990. He has denied that plot no. 12 & 16 of survey no. 1094 had the benefit of frontage. He has stated that on the main road abutting the acquired lands there was not much development. However, he has admitted that within the area of 500 mtr. most of the colleges are situated. He has stated that just touching Nalanda, there is a property of Dandiwala. Thereafter, there is Satyam society. He has stated that survey no. 1047 is little away from Jagdamba society. He has stated that he has a house just near the canal. About the colleges, in further cross-examination, he has stated that the science college started operating in 1948, commerce & law college started operating in 1962. D.D.I.T. college started imparting education in 1968. The lands in question are just on the eastern side of D.D.I.T. college. He has admitted that in the year 1968, all types of facilities were made available. There is a hostel just behind the civil hospital. He has shown his ignorance about Satyam society which was constructed in 1970. He has denied about the fact that in Nalanda society persons were occupying since 1994. He has stated that there was no construction carried out in Nalanda society in 1994. He has stated that in the year 1984 within the area of 300 mtr. of the acquired lands there was no residential house and all the agricultural fields were without cultivation. He has admitted that the lands are within the municipal limits. He had to admit that in 1984, the municipality provided to the residential complexes, water and drainage facilities. He has admitted that just near the lands in question there is Ayurvedic hospital which was constructed in 1959. He has also admitted that in the year 1984, nearabout the lands permission was granted to use the lands for non-agricultural purpose. He has admitted that in the commerce college compound in the year 1970 residential quarters were constructed. He has stated that immediately after the premises of the institute there is a building of commerce college. He has also admitted that in the year 1958 in the science college compound, there was a quarter for the Principal. He has admitted that for acquisition of lands for commerce college, one tenant namely Bhala Shiva was paid 75% of the amount by way of compensation. There is also evidence coming from this witness that the tenant filed a suit and ultimately the sum of Rs.56,000/was paid by a cheque for which settlement was arrived at in the High Court, the copy of which was produced at exh. 79. He has denied the suggestion that in the year 1981, the price was Rs.48/per sq.mtr. He has denied the suggestion that because of the fact that the educational institutions were situated in the area the tenant took less than the market price.
7. There is evidence of Chandrakant Amin examined by the beneficiary. His evidence is not useful for location of the acquired lands.
8. One Mepabhai Khemabhai was examined to prove the document. He has stated that just at a distance of 1 1/2km. from D.D.I.T. college, they were residing in kachcha houses. Reading the evidence, it transpires that he was not answering correctly and was changing his answers. The trial court has made a note to the effect that the witness is changing his answers very frequently. Therefore, we would not like to place reliance on the evidence of this witness.
9. Yogendrabhai Desai has been examined on behalf of the beneficiary. From his evidence, it transpires that at the relevant time, he was residing at Baroda and his other brother was residing at U.S. He has stated that survey no. 1038/4 is just near the Ayurvedic college and just opposite Satyam society. The lands in question was purchased in 1981 by Janardhanbhai, however, there was an agreement to sale in the year 1979. The deal took place at Rs.48,000/- in all @ Rs.2,000/- per guntha. He has stated that the lands covered by the document was at a distance of 300 ft. from D.D.I.T. college and about 300 ft. on the back side of Ayurvedic college. He has stated that in the year 1984, the lands were plotted and the sale took place @ Rs.9,500/- per guntha (1 guntha = 101.7 sq.mtr. to be taken approximately 1 guntha = 100 sq.mtr.). He has denied the suggestion that with a view to save the stamp duty the correct price was not indicated. He has denied the suggestion that in the year 1979, the price of the lands for which the document was executed was about Rs.10,000/- per guntha. He has denied the suggestion that in the year 1984, the lands were plotted after purchasing at Rs.45,000/- per guntha. He has admitted that someone else was looking after plotting of the lands and selling of the lands. He has admitted that the documents are yet not executed for the agreement which took place in the year 1983. He admitted that in the year 1983, registered agreement was executed Rs.9,500/- per guntha.
10. Witness Jyotindra Desai is examined by the beneficiary. It appears that his evidence is for the purpose of proving the document. He has stated that at Chaklasi pati, there was survey no. 1093/3 of one Bhalabhai Shivabhai Talpada. The witness and his brother jointly purchased in the year 1981 the said land from the owner by registered Sale Deed on 17.11.81. The witness stated that the lands admeasuring 22.26 guntha was transferred on consideration of Rs.48,972/-. He stated that approximately Rs.2,400/- to Rs.2,500/- was paid per guntha. He has stated that part of the land is on the college road. Witness has stated that he had family relations with Chairman Narendrabhai of D.D.I.T. He has stated that he and witness Harshadbhai were residing in Desai Vagha i.e. in one street known as Desai Street. He has stated that in the year 1972-75, the construction of Uttam Park Society was completed at a distance of 1 km. from the lands in question. There was a bunglow of Kanubhai Desai which was constructed in the same year at a distance of about 500 mtr. The witness has stated that when he went to purchase the lands, he has not seen anything nearby the lands. Stating this, he has shown his ignorance about the existence of other societies, bunglows etc. He has pleaded his ignorance about the present market price by stating that he is not going to the site. He has admitted that before he purchased the lands, there was Vallabhnagar society in existence at a distance of about 1/2 km. He has admitted that just near the Vallabhnagar society, there is Satyam society after leaving 2 bunglows of C.J.Patel & Company. Thereafter, the acquired lands are situated. He has admitted that the acquired lands are situated within 300 ft. distance from Nairobi and Vate society. He has denied the suggestion that the document was executed at lesser price than purchased. He has admitted that Balabhai was not educated and was cultivating the lands, however, he also admitted that when he went to the site, there was no cultivation i.e. the lands were fallow lands. He has admitted that Bhalabhai was required to pay some debt. He has stated that Uttarsanda is at a distance of 5 km. and 3km. from D.D.I.T.college. In the cross-examination, he has further stated that the acquired lands are at a distance of about 200 mtr. from the lands which he purchased. He has seen the area of D.D.I.T. college. He has stated that the frontage of the society is on the road. The acquired lands have a road nearby the college. Just behind D.D.I.T. college, there is water way. On the other side, there is a canal just opposite to Nalanda society. However, he stated that when he went to purchase the land, there was agricultural operation in Nalanda society. He has denied the suggestion that on the college road, the price of the lands have increased after year 1980-81. He has admitted that since 1960 in the area, there is facility of electricity. The lands purchased were in the municipal limits. He has stated that there are colleges, Ayurvedic hospital, ladies hostel. This development is prior to 1965.
11. On behalf of the claimants, one Harshad R Shah B.E.Civil U.S.A. Government Registered Valuer since 1971 and a panel valuer of L.I.C. and G.S.F.C. was examined. He is also approved valuer by the State Government. He has prepared the report for the lands bearing survey no. 1094/16 situated at Chaklasi Pati, Nadiad vide exh. 41. According to his evidence, he made valuation in the year 1997 after considering various aspects such as location, size of the land, area, measurement, frontage, development and residential development. He has further stated that he has taken into consideration the increase in price and the instances of the sale of nearby lands, use of the land, sales, stamp duty, nature of the land etc. He has pointed out in his evidence that he examined the revenue record and on the basis of that he stated that in the year 1984, there was a cart-road to go to the lands in question on south-east direction. He himself is residing in Nadiad since 30 years. He has stated that since about 1984, nearabout the area was used for the purpose of residence and in fact people were occupying the buildings. Nearabout the lands, there was existence of D.D.I.T. college, science & Arts College, Ayurvedic and Law college. He has also stated that in the year 1984, within the area of 500 mtr. of the acquired lands, facilities with regard to water and electricity were made available. Nearabout the lands, there is Mahi canal. In the year 1984, the lands acquired were in the middle of the residential localities. He has stated that while arriving at a conclusion of market price, he has examined the instances when notices were issued as documents were executed at a lesser price for avoiding the stamp duty and the imposition of penalty upon such persons. He has pointed out one instance by stating that after ascertaining the real stamp duty for survey no. 1094/2, the price comes to Rs.182/- per sq.mtr. We are not giving any importance to the valuation made with regard to the well as that is not the subject matter. In his report exh. 41, he has pointed out with regard to the area, location and situation that an area of 3339 sq.mtr. was within the municipal limits of Nadiad. Location is on the south-west part of the city and the area falls in Development Plan. He has pointed out that there are new residential colonies. There are colleges including arts, commerce, science and technical and the lands are situated little interior on the east of Nadiad-Ahmedabad state highway, opposite Ayurvedic college. Access to the properties through cart-track on east, it brings on Nadiad-Ahmedabad road. In the proposed plan, the cart track is proposed as a road of 18 mtr. wide. About the facilities he has pointed out that facilities of electricity and drainage are available. About the buildings, he has pointed out that the area is developed as there are societies viz. Nalanda society, Satyam society etc. In view of this, it seems that he has opined for the development of residential or commercial use. According to his opinion, the site visited by him is the most suitable for development. He has specifically considered for the purpose of valuation that the lands are within the municipal limits and fall in development plan. The nearby area has been developed as residential colonies. He has also reiterated that the facilities like educational, hospital, shopping etc. are within the reach and the plot has long frontage on 2 road side. He has opined that land prices are rising since last 15 years. The rate of rise is more than 10 times in the last 15 years. The rate of return from the land is much more than any other investment like bank and business. It may be noted that restrictions as imposed under the Urban Land (Ceiling and Regulation ) Act were not made applicable to the Nadiad city as in case of other cities and therefore people, with a view to get higher return, would like to invest in lands. The expert even considered some instances and opined that the sale instances are not as per prevailing market rate and are tailored as per the requirement. Considering the various aspects such as area that was already developed and the area that is developing very fast, arrived at a conclusion that the market price would be Rs.225/- per sq.mtr. He specifically observed in the report that the method of sale instances does not seem to be proper as the real market price is not indicated in the document and his finding was supported by issuance of notices by the Government for imposing penalty and levying additional stamp duty with penalty. He also opined that the sale value do not reflect prevailing market value but at the same time he has indicated that there is a trend of rising price in the market and considering the location, situation, frontage, shopping centre, size, development in the area and the potentiality of the land as building site, he valued the lands @ Rs.225/per sq.mtr. Before the Reference court, there was marshalling of facts which we have indicated hereinabove and on appreciation of the evidence placed before the court, the Reference court enhanced the market price as indicated above.
12. Mr.Nanavati, learned counsel appearing for the beneficiary submitted that annexure `A' to the opinion, if scrutinized properly, it would be difficult to envisage that the price would be Rs.225/- per sq.mtr. or even as demanded by the claimants at Rs.150/- per sq.mtr. Mr. Nanavati attacked the instances appearing at sr.no.10 in annexure `B' on the ground that the correct market value has not been indicated. For the said purpose, evidence of Dr.Rohit Desai was read and re-read. He has come out with the case that out of survey no.1047, plot no. 16 admeasuring 154.70 sq.mtr. was transferred on 8.5.84 by a registered Sale Deed. There is a document in this behalf at exh. 55 but it was submitted by Mr.Nanavati, learned counsel for the beneficiary that if the registered sale deed is perused, it is clear that over and above plot no. 16, common plot was also transferred. Plot no. 16 was admeasuring 154.70 sq.mtr. and common plot was admeasuring 344.38 sq.mtr. The amount of consideration is indicated in the document itself i.e. Rs.11,000/- for plot no. 16 and Rs.21,000/for common plot. Thus, there is transfer of property admeasuring about 499.08 sq.mtr. and not 154.79 sq.mtr. as referred in the annexure. The learned counsel attacked the evidence of expert that though the documents were there on the record, the attention of the expert was not drawn and therefore it would have been proper if the explanation would have been called for from the witness. It is also required to be noted that the transaction took place on 8.5.88 with regard to the plot admeasuring 154.79 (on 10.9.88 by registered sale deed). The similar plot was transferred on consideration of Rs.10,000/- in favour of one Chandrikaben by Vinubhai while the slightly bigger plot on the same date was transferred in favour of Parshottambhai on consideration of Rs.32,000/- by Vinubhai. This itself raises a doubt about the transaction being genuine. It is difficult to believe that for a difference of 45 sq.mtr. one would be prompted to pay Rs.22,000/-. That apart, even as per say of the beneficiary for 154.79 sq.mtr. the amount of consideration was Rs.11,000/- only as reflected in document at exh. 55. If that is taken into consideration, then there is no major difference. According to Mr.Nanavati if this sale deed is taken into consideration the amount would be Rs.60/- per sq.mtr. He submitted that there is another sale instance at sr.no. 3 for the plot of land admeasuring 153.20 sq.mtr. which was transferred @ 110.96 per sq.mtr. He submitted that this area is not nearby the lands in question and therefore it should not be taken into consideration. In sum and substance his contention was that if annexure `B' is taken into consideration, the price varies from Rs.62.11/- to Rs.98.15/- per sq.mtr. The notification was issued on 13.9.84. Therefore, the court will have to take into consideration these documents. Annexure `C' to the document has been also perused by us. There are several instances out of which only one instance is of May, 1984. One instance is of 25.1.85 and the other is of 29.8.85. There are other instances of 1986,1987 and 1988. Mr.Nanavati, learned counsel contended that in both the annexures, distance is also indicated from the lands acquired and according to his submission, there are only 3 plots appearing at annexure `C' at sr.no.5,6 & 8 which can be said to be nearer to the plot while others are at a distance of about 400 mtrs.to 550 mtrs. The transaction which took place can be said to be in the proximity of the time i.e. 1986.
13. The learned counsel Mr.Nanavati submitted that the transaction referred by the expert in his opinion for 2 plots of revenue survey no. 1046/3 one admeasuring 116.02 sq.mtr. of block no. A-9, and, another admeasuring 116 sq.mtr. of plot no. 1/10 has been wrongly taken into consideration by the expert. The evidence of expert was also attacked on the ground that irrelevant material has been taken into consideration by him and therefore in his submission the court will have to arrive at a conclusion on the basis of the material placed on the record independently without being influenced by the assessment made by the expert. In the aforesaid 2 plots, the expert himself has made comments. One transaction took place on 29.8.85 for area admeasuring 116.02 sq.mtr. for Rs.20,000/- for plot no. 1/10, the other transaction took place on 8.10.86. For both the plots there was a common seller and there is vast difference in the value as pointed out by the valuer himself. One plot in the year 1986 was transferred Rs.172/- per sq.mtr. while the other plot was transferred in 1985 on consideration @ Rs.215.48/- per sq.mtr. The valuer has pointed out that the above 2 sales are of the properties which are located side by side. The seller is the same, area is almost the same but the second sale after one year shows less value. He has pointed out that "this supports the conclusion that the value as per sale instance are not as per prevailing market and tailored as per requirement." Thus, the expert has just indicated these instances with a view to point out that the people while transferring the property are not indicating the correct market price.
14. With a view to point out this aspect on behalf of the claimant Mr.Patel learned counsel submitted that if the document exh. 85 is perused, it would be clear that there is undervaluation. Exh. 85 is the copy of exh. 55. In exh. 55, there is no endorsement about the penalty imposed as the same must have been taken before the penalty was imposed, while in exh. 85 at the end we find the order made by the Collector, Stamps Nadiad on 22.7.91. Reading the order, it appears that the person concerned was called upon to pay deficit stamp duty of Rs.2,880/- and the penalty of Rs.250/(which was already paid by cheque). Keeping this in mind, evidence of Mr.Jyotindra Desai witness no. 5 examined by the beneficiary who entered the box to prove the said document is to be considered. His evidence reveals that he has stated that when he went to purchase the land, he has not seen anything nearby the lands. He was specifically questioned about the document and value of the lands of the transaction in question. On behalf of the claimant, it was submitted that in view of the order made by the Collector, Stamps, it is very clear that the grievance made by the claimants that the document was undervalued is getting support from an order made by the appropriate authority levying the stamps duty under the provisions contained in the Stamps Act.
15. The expert also observed in his opinion that normally sale instances do not reflect prevailing market price. He has pointed out that during 82-85, the market rate varies from Rs.62.11 to Rs.206.71. We may not take into consideration, the price as indicated at Rs. 206.71 but it is clear that there are variations at the same time. It is also required to be noted that the variations are bound to be there. Properties are not of the same nature, measurements are different, requirement is different, purpose may be different, need of a person may be different and therefore it is difficult to blindly accept in toto the market value as indicated in the sale deed. It only provides a guideline to find out as to what could be the market price. He has further pointed out that in second set the price varies from Rs.81.97 to Rs.215.48. He has also stated that the sale instances are affected by individual transaction, circumstances, size of the land and the circumstances of the buyer and the seller. He has expressed an opinion that the registered record is nowhere indicating or reflecting the prevailing market rate. With a view to assess, he has taken shelter of the records of the government departments. However, he has pointed out that the sale instances for the government are not found but the of Collector of stamps who is required to look after the Stamp duty, is reassessing the land value. He has indicated that there were hundreds of cases where the additional stamp duty has been recovered from the Nadiad city. Reading the evidence of expert, it appears that it is unsafe to rely for determining the market price on sale instances where it is noticed that the transactions are undervalued. Not only that but in the instant case, we find that the witness Chandrakant Amin who was examined by the beneficiary to prove the registered sale deed had to admit in the cross-examination that when he executed the documents, the land was undervalued. He stated that when he executed the document, the price of the land was Rs.10,000/- per guntha. He has denied the suggestion that it is not true to say that the market price was Rs.50,000/- per guntha. This witness has stated that the document was executed on 28.7.93. He has stated that the land admeasuring 96 gunthas was purchased @ Rs.30/- per sq.mtr. It seems that the beneficiary has examined this witness to show that even in 1993, the price was Rs.30/and therefore at the time of notification, price must be much less. It is required to be noted that the Collector of stamps issued notice. He has also admitted that they were not willing to execute one document. If there was one document, they were required to pay higher duty. He has also admitted that the seller was badly in need of money and therefore he demanded money at that time. From his evidence, it is clear that the seller Narsibhai was required to spend money for marriage purpose and in fact, after about 2 or 3 months from the execution of document, Narsibhai was required to spend money for marriage. He has also admitted that the broker conveyed that the land owner is in financial crisis and is willing to dispose of the land. He has also admitted that after discussing with him at a lesser rate than the prevailing rate in the market, the document was executed. He has also admitted that Harshadbhai being his relative has come to give evidence and he denied the suggestion that with a view to avoid income tax, the property was undervalued. There are number of questions put with regard to the transaction in question. It is also clear from the cross-examination that the statement of Narsibhai was recorded by the income-department and inquiry was also made about the transaction. This witness was also interrogated and the instructions were given to one Vitthalbhai Desai. He has stated that in the Income Tax Office, sum of Rs.52,000/- were paid by way of tax. He has denied the suggestion that the transaction took place @ Rs. 23,250/- per guntha and sum of Rs. 22,34,790/were paid to Narsibhai, however, he has admitted that sum of Rs.52,000/- were paid by Vitthalbhai Desai (for the purpose of income tax). He has further stated that Narsibhai was a debtor and was not able to pay Rs.52,000/-. He has admitted that even the advocate was engaged for Narsibhai by him. Narsibhai has not paid fees to any lawyer. He has also admitted that the litigation was pending with regard to the land in question. He has stated that the documents were executed on the same date and sum of Rs.52,000/- were paid by way of income tax, considering the value of the land at Rs.5,00,000/-. Evidence of this witness was attacked on behalf of the claimants on the ground that he happens to be the relative of Harshadbhai, the star witness on behalf of the beneficiary who was at the relevant time Director of D.D.I.T. It was submitted that there was no earthly reason to examine this witness for a transaction which took place on 28.7.93. This witness has given different stories at different times. He has referred the sum of Rs.2,81,000/- paid towards the sale deeds while at a later point of time, at one stage, he has stated that the amount was considered as Rs.5,00,000/for the transaction in question and sum of Rs.52,000/were paid to the income tax department. (on behalf of Narsibhai).
16. Thus, it is clear that the evidence of Chandrakantbhai Amin witness no. 2 for the beneficiary Mepabhai Khemabhai witness no. 3 for the beneficiary could not be relied upon. Evidence of Jyotindra Jagdish Desai witness no. 5 for the beneficiary who has admitted that Balabhai was a debtor and he has not examined anything on the question of value at the time when he purchased the land makes it difficult to accept his evidence as it is not a case of willing purchaser and a willing seller. The document exh.70 for which witness Jyotindra Desai has deposed, if read becomes clear that there was no income from land. He had suffered loss in agricultural operations and there was damage by stray animals and it appears that this compelled him to transfer the land. Therefore, also, it would not be possible to say that this is the transaction between a willing buyer and a willing seller. The witness Yogendrabhai Desai for the beneficiary has stated in the cross-examination that in the year 1984, after plotting the lands plots were transferred @ 9,500/- per guntha (equal to 101.70 per sq.mtr.) We have also indicated earlier about the agreement to sale which was registered and executed in 1983 wherein the rate fixed was Rs.9,500/- per guntha and thus price was Rs.95/- per sq.mtr. in 1983.
17. Mr.Patel, learned counsel appearing for the claimants submitted that in the instant case there is no question of determining the market price on the yield basis. He submitted that the lands are situated within the municipal limits and it is also clear from the evidence that the provisions contained in Bombay Town Planning and Urban Development Act would apply (we say so because we find reference in the evidence that there is development plan). He further submitted that considering the fact that the area is cornered by canal, colleges, hospital and residential colonies, the lands must be assessed in view of the development. In his words, as one witness has pointed out that rich people are occupying the houses in this area itself indicates what price must be prevailing at the relevant time. He further submitted that there is evidence that the documents were undervalued. No absolute reliance can be placed to assess at the rate it is being suggested in the different documents. But on account of undervaluation, the price must be assessed at a higher rate. He further submitted that as no reliable instances are there and the yield method being out of question, expert's opinion is required to be taken into consideration for which he placed reliance on the decision of the Apex Court in case of THE SPECIAL LAND ACQUISITION OFFICER, DAVANGERE v. P. VEERABHADARAPPA ETC. ETC. reported in AIR 1984 SC 774. The Apex Court pointed out in para 7, 8 and 10 as under:
"The function of the Court in awarding compensation under the Act is to ascertain the market value of the land at the date of the notification under s. 4(1) and the methods of valuation may be :(1) Opinion of experts. (2) The prices paid within a reasonable time in bona fide transactions of purchase or sale of the lands acquired or of the lands adjacent to those acquired and possessing similar advantages. And (3) A number of years purchase of the actual or immediately prospective profits of the lands acquired. Normally, the methods of capitalizing the actual or immediately prospective profits or the rent of a number of years' purchase should not be resorted to if there is evidence of comparable sales or other evidence for computation of the market value. It can be resorted to only when no other method is available. In valuing land or an interest in land for purposes of land acquisition proceedings, the rule as to number of years' purchase is not a theoretical or legal rule but depends upon economic factors such as the prevailing rate of interest in money investments. The return which an investor will expect from an investment will depend upon the characteristic of income as compared to that of idle security. The main features are: (I) Security of the income; (2) fluctuation; (3) chances of increase; (4) cost of collection etc. The most difficult and yet the most important and crucial part of the whole exercise is the determination of the reasonable rate of return in respect of investment in various types of properties. Once this rate of return and accordingly the rate of capitalization are determined, there is no problem in valuation of the property. The principle is that the basic factor in applying the method of capitalization of income for ascertaining the market value of property is the rate of return that an ordinary investor would reasonably get on his investment, having due regard to all the relevant circumstances. It would be unrealistic to adhere to the traditional view of capitalized value being linked with gilt-edged securities when investment in fixed deposits with nationalized banks. National Savings Certificates, Unit Trusts and other forms of Government securities and even in the share market in the shape of blue chips command a much greater return. More secure the capital and regular the return lesser the rate of interest. Most secured kind of investment is Government securities or deposits with scheduled banks or Unit Trusts or National Savings Certificates."
The learned counsel Mr.Patel submitted that considering the development which has been highlighted in the evidence of various witnesses and the expert, there is suitability for the building purpose. In fact nearby the lands several different types of constructions have been erected much earlier and therefore according to him, the land in question had a great potential value as building site. The Apex Court in the case of The Collector, Raigarh V/s Dr.Harisingh Thakur and another reported in 1979(1) SCC 236 in para 5 pointed out as under :
"The question whether a land has a potential value as a building site or not is primarily one of facts depending upon several factors as its condition and situation, the use to which it is put or is reasonably capable of being put, its suitability for building purposes, its proximity to residential, commercial and industrial areas and educational, cultural or medical institutions, existing amenities like water, electricity and drainage and the possibility of their future extension, whether the nearby town is a developing town with prospects of development schemes and the presence or absence of pressure of building activity towards the land acquired or in the neighbourhood thereof. In the instant case, the fact that the lands have a great potential value as building sites is clear from the observations of the Special Land Acquisition officer to the effect that the lands have assumed semi-abadi character as well as from the observations of the Addl. District Judge. This is further proved by the fact that Raigarh is a growing town, that buildings are coming up in the neighbourhood and also that instead of utilising the land for doubling the railway track the railway had built staff quarters."
Mr.Patel, learned counsel submitted that in the instant case from the evidence itself it is clear that lands are within the Municipal limits having Development Plan and several people have constructed their residential houses. Nearby the lands, there are various colleges imparting education in different fields. Nearby the lands in question hospital, shopping complex, and other facilities are available at a throw-away distance. He submitted that the Special Land Acquisition Officer himself has clearly pointed out certain aspects in para 5 of his award and therefore the land had a higher value as a building site cannot be forgotten while determining the market price. He submitted that the Judgement of the Privy Counsel in case of Vyricharla Narayana Gajapatjiraju v. Revenue Divisional Officer Vizagapatnam reported in AIR 1939 PC 98 was considered in para 17 of the judgment in case of Collector Raigarh (Supra), the Privy Council observed:
"For the land is not to be valued merely by reference to the use to which it is being put at the time at which the value has to be determined.... but also by reference to the uses to which it is reasonably capable of being put in the future. It is possibilities of the land and not its realized possibilities that must be taken into consideration."
Mr.Patel drew our attention to para 23 & 24 of the judgment in the case of Collector, Raigarh (supra) which reads as under:
"In Raghubans Narain Singh v. The Uttar Pradesh Government AIR 1967 SC 465 this Court quoted with approval the following passage from one of its earlier decision in N. B. Jeajabhoy v. The District Collector, Thana, where it was said: "the question therefore turns upon the facts of each case. In the context of building potentiality many questions will have to be asked and answered: whether there is pressure on the land for building activity, whether the acquired land is suitable for building purpose, whether the extension of the said activity is towards the land acquired, what is the pace of the progress and how far the said activity has extended and within what time, whether buildings have been put up on the lands purchased for building purposes, what is the distance between the built in land and the land acquired and similar other questions will have to be answered. It is the overall picture drawn on the said relevant circumstances that affords the solution. In Raghubans Narain Singh's case (supra) there was evidence to the effect that there was a school building near the acquired land, that the land abutted on the road and that some houses had been built on the opposite side of the road. It was nevertheless held by this Court that all this did not constitute evidence of building potentiality. It was pointed out that there should be evidence, on the record, 'of building activity of a substantial nature, being carried on in the neighbourhood of the acquired land, at about the time when the notification was issued'.
Thus, Mr.Patel learned counsel submitted that in view of the evidence it is clear that on the record, there is evidence of building activity of substantial nature being carried on in the neighbourhood of the acquired land and therefore the market price is required to be determined accordingly.
18. Mr.Nanavati, learned counsel submitted that in view of the Apex Court judgments reported in 1994(4) SCC 595, 1995(2) SCC 305, 1996(3) SCC 124 & AIR 1996 SC 1170. The value determined by the Collector of Stamps is not required to be taken into consideration. It may be noted that in the instant case, the court is not required to determine the market value on the basis of Valuation Register maintained for the purpose of Collector, Stamps Duty. It is also required to be noted that the penalty imposed or the price determined by the Collector of stamps is not a foundation to determine the market value mentioned in the document which was produced for registration. It must be mentioned that the court has not determined the market price on the basis of the order made by the Collector of Stamp but the court has to take into consideration the provisions laid down in Sec. 23 of the Act for determining the market price.
19. Mr.Nanavati submitted that the expert has considered this aspect for arriving at a conclusion and therefore his opinion is not an independent opinion but he has placed reliance on these instances for arriving at a conclusion. The argument is very attractive but if we scan the opinion and his evidence carefully we find that he has pointed out that in some of the cases, the documents were undervalued and he has pointed out for that purpose the orders made by the Collector of stamps. This was only with a view to indicate undervalue and not for the purpose of arriving at a conclusion as to what should be the market price. In the instant case, there is oral evidence of witnesses which we have referred hereinabove indicating that the documents were undervalued. It may not be with regard to all the documents which were placed before the competent authority and we are not required to state anything in that behalf but suffice it to say that the documents which were placed before the court and the witnesses who were examined for the purpose compels us to believe that there was undervaluation and the sale deeds are not reflecting the correct existing market price. The Division Bench of this Court in case of Dy.Collector Land Acquisition & Rehabilitation Amreli & Anr. V/s Lalubhai Keshavbhai reported in 1999(3) GLR 2625 had an occasion to consider similar situation. In para `k' of of 13.19 at page 2660 the court pointed out as under :
" Secondly, it is a matter of common knowledge that the agreement to sale is generally arrived at much earlier as compared to the actual date of the execution and it has come on record in this case that there was an agreement to sell and as per that agreement the price fixed was Rs.300/per sq.mtr. but in order to save the stamp duty, the less amount was mentioned and for that purpose the notice under sec. 32C had also been issued by the Collector, Stamp Duty. Such practices in the sale transactions of immovable property are not uncommon, but even if it is assumed that in a given case the price agreed in the agreement to sale was higher and in fact at the time of execution of the sale deed a lower rate was mentioned, it would reflect the practice to avoid the payment of stamp duty, but the same cannot impinge upon the actual market value. On the contrary, notices issued by the Collector, Stamp Duty shows that the price at which the sale deed was sought to be executed was not the real price and the actual price was much higher than the one mentioned in the sale deed. Thus, the two reasons, as given out hereinabove, would make it clear that for a land admeasuring 1000 sq.mtr. in the case of exh.72, Rs.18,500/could not be real prevailing market rate."
Mr.Patel, learned counsel submitted that he is placing reliance on this decision only with a view to indicate that sale deed at a lower rate if executed, others should not suffer. As indicated by the Apex Court in several cases, some of which have been cited by Mr.Nanavati, learned counsel for the beneficiary it will be the duty of the court to determine the market price irrespective of the facts what price have been indicated in the sale deeds. Mr.Nanavati, learned counsel strongly relied on the Apex Court judgment in case of P.RAM REDDY AND OTHERS V/S LAND ACQUISITION OFFICER, HYDERABAD URBAN DEVELOPMENT AUTHORITY, HYDERABAD AND OTHERS REPORTED IN 1995(2) SCC 305 in para 7, the court indicated as to what is to be answered by the court. In para 9 of the said judgment, the court pointed out as under :
"The material so placed on record or made available must necessarily relate to the matters such as :
(i) the situation of the acquired land vis-a-vis, the city or the town or village which had been growing in size because of its commercial, industrial, educational, religious or any other kind of importance or because of its explosive population;
(ii) the suitability of the acquired land for putting up the buildings, be they residential, commercial or industrial, as the case may be;
(iii) possibility of obtaining water and electric supply for occupants of buildings to be put up on that land;
(iv) absence of statutory impediments or the like for using the acquired land for building purposes;
(v) existence of highways, public roads, layouts of building plots or developed residential extensions in the vicinity or close proximity of the acquired land;
(vi) benefits or advantages of educational institutions, health care centres, or the like in the surrounding areas of the acquired land which may become available to the occupiers of buildings, if built on the acquired land; and
(vii) lands around the acquired land or the acquired land itself being in demand for building purposes, to specify a few.
Therefore, the court will have to consider various aspects. It is admitted position that the lands acquired are situated within the municipal limits. The evidence reveals that societies were there nearby the lands and even according to the witnesses for beneficiary Nalanda society came in existence. There were educational institutions such as Arts, Commerce, Science and Ayurvedic colleges. There is evidence of shopping centre and thus area is residential. It is matter of common knowledge that cities are expanding day by day. In absence of the expansion, even the beneficiary would not request the State Government to acquire the lands. In view of the expanding society in nearby land, it cannot be said that the lands were not suitable for putting up the buildings for residential or commercial purposes. With regard to water and electric supply for the occupiers of buildings put up on the land, there is sufficient evidence that facilities of electricity, water and drainage were available. With regard to the statutory impediment it must be noted that this area being situated within the municipal limits, there would be no legal impediment. Apart from the fact that the evidence reveals that the permissions were frequently granted from converting the agricultural to non-agricultural lands, Mr.Patel submitted that in view of the decision reported in case of KARIMBHAI KALUBHAI BELIM AND OTHERS V/S STATE OF GUJARAT AND ANOTHER REPORTED IN 1996(1) G.L.H.200 once the Gujarat Town Planning and Urban Development Act is made applicable, there is no need to take permission from the authorities for obtaining permission by converting the lands into non-agricultural lands from agricultural lands. The learned single judge, after considering the provisions contained in the aforesaid Act as well as Bombay Land Revenue Code held as under :
"In view of the aforesaid ruling of this court, even permission under Section 65 of the Code would not be necessary with respect to a land if the development permission under Section 29 of the Act is obtained. In that view of the matter, no condition could have been imposed in the development permission for obtaining permission under Section 65 of the Code. To insist on such permission by means of such condition would tantamount to rendering nugatory or set at naught the effect of Section 117 of the Code. This cannot be permitted to be done. Such condition in the development permission at Annexure B to this petition will have to be ignored."
Mr.Patel, learned counsel submitted that at the time of acquisition in question, considering the provisions of law as applicable it was not necessary to obtain the permission to convert the land from agricultural lands to non-agricultural lands under the Bombay Land Revenue Code and therefore there was no statutory impediment.
20. With regard to existence of highways, public roads, letouts, building plots etc. Mr.Patel submits that the lands are just touching the highway. It is in the heart of the city at a distance of 1.5km. from Gamtal area of Nadiad town. There is evidence that nearabout there is state highway and other roads (which is clear from the map). Considering the fact that there were buildings for residential as well as educational activities it is no doubt that in the vicinity or close proximity of the acquired land there was development. So far as the benefits or additions of educational institutions, health care centers or like in the surroundings are concerned, Mr.Patel submits that evidence clearly reveals that all such facilities are made available to the occupiers of the buildings and if buildings have been constructed on the lands acquired, they will get such facilities. In view of plotting the lands and transfer to other persons it is clear that it could be done only in view of the demand made by the people and therefore all the requirements are metwith, to state that the lands have building potentiality and must be considered accordingly. Mr.Nanavati, learned counsel submitted that as 47 and odd Acres of land was acquired, it cannot be compared with transaction of small plots admeasuring 100 sq.mtr. or 200 sq.mtr. According to his submission, if the lands are put to use for building purpose, some deduction must be given for the purpose of providing roads. He has stated that for this purpose no authorities are required. It is equally true that if these land holders would have plotted and would have disposed off their own lands without the provisions of roads etc. it would hot have been possible for them to dispose of the lands. Mr.Patel, learned counsel submitted that the Apex Court judgment in case of BHAGWATHULA SAMANNA AND OTHERS V/S SPECIAL TAHSILDAR AND LAND ACQUISITION OFFICER, VISAKHAPATNAM MUNICIPALITY REPORTED IN AIR 1992 SC 2298 was a case with regard to acquisition of land of 8 acres 33 cents and 1 acre 68 cents of land. In both the cases, notifications were of different dates. Notification under sec. 4(1) of the Act were published on 7.7.66 and 1.8.68. The High Court of A.P. following decision of the Apex Court in case of Tribeni Devi V/s Collector, Ranchi reported in AIR 1972 SC 1417 held that the deduction of 1/3rd of the value is to be made when the extent of land is acquired under housing scheme, determined the market value of the appellants' land at the rate Rs.6.50 per sq.mtr. and accordingly reduced the total compensation allowed by the subordinate judge. In para 8 of the judgment, the Apex Court considered the case of Kaushalya Devi V/s Land Acquisition Officer AIR 1984 SC 892. In para 9, the Apex Court considered the observation of the court made in case of Administrator General of West Bengal V/s Collector, Varanasi reported in AIR 1988 SC 943. In para 10 the Apex Court considered the decision of Special Tahsildar Land Acquisition, Vishakhapatnam V/s Smt. A Mangala Gowri reported in 1992 AIR SCW 319. In para 11 the Apex Court pointed out as under:
"The principle of deduction in the land value covered by the comparable sale is thus adopted in order to arrive at the market value of the acquired land. In applying the principle it is necessary to consider all relevant facts. It is not the extent of the area covered under the acquisition, the only relevant factor. Even in the vast area there may be land which is fully developed having all amenities and situated in an advantageous position. If smaller area within the large tract is already developed and suitable for building purposes and have in its vicinity roads, drainage, electricity, communications etc. then the principle of deduction simply for the reason that it is part of the large tract acquired, may not be justified."
Relying on this Mr.Patel submits that the evidence clearly reveals that all facilities such as educational institutions, residential complexes, ladies hostel, Ayurvedic college, hospital, asphalt road, facilities of approach to the national highway etc. were available over and above drainage and electricity. Therefore, he submitted that deduction may not be justified when such facilities are provided. He submitted that for a small plot holders it remains small plot and it is not necessary to deduct anything. In case of BASANT KUMAR AND OTHERS V/S UNION OF INDIA AND OTHERS REPORTED IN 1996(11) SCC 542 the Apex Court pointed out as under :
" It is common knowledge that even in the same village, no two lands command same market value. The lands abutting the main road or national highway command higher market value and as the location goes backward, market value of interior land would be less even for the same kind of land. It is a settled legal position that the lands possessed of only similar potentiality or the value with similar advantages offer comparable parity of the value. It is common knowledge that the lands in the village spread over the vast extent. So, all lands cannot and should not be classified as possessed of same market value. Burden is always on the claimant to prove the market value and the court should adopt realistic standards and pragmatic approach in evaluation of the evidence. The doctrine of equality in determination and payment of same compensation for all claimants involved in the same notification is not a good principle."
In that case, the extent of land involved was 37 bighas 10 bishwas in case of one Chhajju and 66 bighas 10 bishwas in case of Balbir Singh. In that case, the Apex Court pointed out in para 7 as under :
"If it is to be developed, it is a settled legal position that atleast 1/3rd of the compensation has to be deducted towards providing amenities, like roads, parks, electricity, sewage, water facilities etc. This court has upheld deduction of even 60% towards development charges. The High Court, therefore, was also not right in adopting ad hoc principle."
Relying on this, Mr.Nanavati submitted that in the instant case also 1/3rd of compensation should be deducted. In that case, we have indicated earlier what was the size of land belonging to 2 persons. If the two persons referred to in the judgment were required to develop their lands, looking to the size of the lands they were obviously required to provide these facilities as indicated in para 7 of the judgment, while in the instant case it is not a case of very big parcels of land. We have indicated that the plot holders are holding plots ranging from 1922 sq.mtr. to 8,397 sq.mtr. except one gentleman holding 12,445 sq.mtr. on 4 sub-plots. Thus, for these small plot holders the area is well developed with all facilities provided. Mr.Patel submitted that in view of the Apex Court judgment in case of Bhagwathula Samanna (supra) there is no question of any deduction whatsoever.
21. Mr.Nanavati, learned counsel submitted that the Apex Court in case of SHAJI KURIAKOSE AND ANOTHER V/S INDIAN OIL CORPORATION LTD. AND OTHERS reported in (2001) 7 SCC 650 has indicated the method of valuation. In that case, the land covered by the sales was situated at main road whereas the acquired land was situated at a distance of 3 furlongs from the main road. There was no access to the acquired lands and only an internal mud road was in existence, which belonged to one of the claimants whose land has also been acquired. It was also found that the land covered by the sale was a dry land whereas the acquired land was a wet land. The court pointed out that after the acquisition, the acquired land has to be reclaimed and a lot of amount would be spent for filling the land. Moreover, the lands covered by the sale deeds relate to small piece of lands which do not reflect the true market value of the acquired land. The court pointed out that it is often seen that the sale of smaller plot of land fetches more consideration than a larger or bigger piece of the land. Mr.Nanavati submitted that therefore, in the instant case also the price must be slashed down. We have indicated the facts hereinabove and we find no similarity in the facts. We find, in view of the evidence on record and the principle laid down by the Apex Court judgments, that the land had high building potentiality. Mr.Nanavati, learned counsel in view of the decision of the Apex Court in case of Karan Singh and others V/s Union of India reported in 1997(8) SCC 186, post notification sale transactions cannot be taken into consideration. There the court pointed out as under:
"Often evidence on transaction of sale of land on or a few days before the notification under sec. 4 is not available. In the absence of such evidence contemporaneous transactions in respect of lands which had similar advantages and disadvantages would be a good piece of evidence for determining the market value of the acquired lands."
In the instant case, the expert has pointed out that the value has not been correctly stated in the registered sale deeds and the court has to determine the market price considering the evidence on record. Of course when earlier transactions were available, it goes without saying that specific sale deeds are not required to be taken into consideration. On behalf of Mr.Nanavati, it was submitted that in view of the decision of the Apex Court in case of P.Ram Reddy (supra) the value must be determined. It is required to be noted that that was the case of the claimant who was owner in possession of a dry land of as much as an extent of 10 acres 17 gunthas in survey nos. 48/24 & 48/26 of Katedhan village lying in the outskirts of Hyderabad. Out of the total land 14 acre and 35 gunthas of the land were proposed to be acquired by HUDA for formation of inner ring road required to connect Old Kurnool Road with Hyderabad-Bangalore National Highway no. 7.
22. It was submitted by Mr.Nanavati that the price must be determined in the manner which is indicated in para 11 of the judgment of the Apex Court. What is required to be noted that in para 24 it is observed that the High Court in determining the market value of the acquired lands doubled the amount of the market value disclosed in the sale deeds referred to in that award and on that basis fixed the market value after giving deduction of 20% out of it towards allowance of lay out and then fixed the market price of the acquired land at Rs.32/- per sq.yard. There is a reference to a transaction in para 25 of the judgment indicating that how the price was determined by the land acquisition officer. The Apex Court pointed out in para 26 as under:
"Therefore, when the LAO himself has stated as above of the fast development of the area where the acquired lands and adjoining building plots sold at Rs. 20 per square yard were situated and the rush of people for purchase of residential building plots in that area, the High Court cannot be said to have gone wrong in stating that the building plots sold under Exhibits B-2, B-3 and B-4 if had been sold at the time of acquisition concerned, could have fetched double the rate of Rs.20/per square yard. Even so, the High Court, in our view, could not have fixed the wholesale price of acquired lands of the claimant at Rs.32/- per square yard by deducting only 20% of Rs.40/- per square yard fixed as the retail value of building plots in the undeveloped layout of building plots formed in the land adjacent to the acquired lands as on the date when they were notified for acquisition under Section 4(1) of the Act. As we have pointed out earlier whenever the wholesale price of the acquired land with building potentiality is required to be determined on the basis of prices of retail sales of building plots in an undeveloped layout of building plots in the vicinity of the acquired lands, at least one-third of the retail price to be got by sale of plots in an undeveloped layout of building plots had to be deducted to arrive at the wholesale price of the acquired lands with building potentiality since the entire acquired land cannot be sold as building plots, and some expense will have been incurred by the owners of lands in laying it into building plots and selling them even though they might not have spent any amount on development of the layout.
For the acquisition of land under Sec. 4(1) of the Act no doubt, in the instant case, there are instances pointing out the market price, but whether the genuine market price has been disclosed in the documents or not will have to be considered by the court to determine the market price.
23. Considering the aforesaid aspects, the court will have to determine the market price. As indicated earlier that it is difficult to find 2 plots of similar nature, size frontage, additions etc.. The price would vary though it may be of the same size. We have got instances for the year 1984 for the sale of several parcels of lands varying from Rs.62.11 to Rs.98.15 and there is one sale instance of Rs.110.96 and another of Rs.206.73. Even if we discard the later instances, the court will have to determine the market price. With a view to find out that increase in price, one will have to consider the several sale instances as pointed which have noted for the year 1982-84, 85,86, 87 & 88. From annexures B&C it is clear that there was trend of increase in price of the lands in question. We again make it clear that we are not considering the instances which were objected by Mr.Nanavati with regard to sale as referred in annexure `B' at sr.no. 3 @ Rs.110.96 and sr.no.10 @ Rs.206.73. His submission was that the sales which have been affected after notification cannot be taken into consideration for determining the market price. No doubt that cannot be the sole basis for determining the market price and more particularly when instances of 1984 itself are available but the future transactions are to be borne in mind with a view to see that the prices were increasing. Considering the principles laid down by the Apex Court in aforesaid cases and the fact that the lands in question were within the municipal limits, the lands were surrounded by housing colonies, educational institutions, hospitals, and having facilities of national highway, electricity, drainage etc. the price is required to be determined. It is also clear that no doubt the people were transferring the properties for the purpose of construction of houses.
Date : 25.1.02
24. In view of the fact that we have considered the evidence of witnesses before the Court who were examined on behalf of the claimants and beneficiary, we have to arrive at a conclusion as to what would be the market price on the date on which the notification was issued. The court will also have to consider building potentiality. There is sufficient evidence not only in the form of oral evidence but even the Land Acquisition Officer himself has placed on the record that the area is developed which we have discussed in detail. Therefore, it is certain that the area was well developed and as we have referred hereinabove, in the Apex Court decision, the price must be determined considering the building potentiality. Considering the maxmimum price in some instances it was suggested on behalf of the claimants, that the court must have awarded the price equal to the price which has been referred in the documents exh. 55 or 78. There were other 2 examples of non-agricultural lands indicating the price of Rs.115/to Rs.172/-. Considering the material, the expert arrived at the conclusion that the market price would be Rs.225/-. Considering the evidence on record, we are of the view that if the mean is taken out and from that if the development charges are deducted, we can get the correct idea as to what would be the market price. On behalf of the beneficiary, it was submitted that the plots which have been referred by the experts were small plots while the lands acquired is a big plot of the land and therefore it would not be proper to award the same price. It is required to be noted that the witnesses who have been examined by the beneficiary have deposed before the court about the price which has been reflected in the document but in view of the cross-examination of the witnesses, we have indicated that it is difficult to believe that the same can be taken into consideration. In view of what we have stated hereinabove, even if the mean is taken out and 40% is deducted, the amount would be in the vicinity of Rs.122/- per sq.mtr. Considering the fact that the lands were within the municipal limits and nearby the lands there were educational institutes, drainage, electricity, water facilities etc. were provided, the location of the plot was such which would provide easy access to the highway and other roads of the city the area is well developed. Hence building potentiality must be kept in mind while awarding the compensation.
25. We are of the view that Rs.115/- per sq.mtr. would be the most appropriate price and the order of the Reference Court shall stand modified so far as the market price is concerned. The First Appeals No. F.A.No. 4125/98, 4128/98, 4263/98 to 4267/98 stand allowed accordingly. It goes without saying that all statutory benefits will be flowing from the order passed by this court.
So far as the appeals preferred by the beneficiary via. F.A.No. 6281/98 to 6288/98 are concerned, they are required to be dismissed.
So far as the cost in all the appeals is concerned, Mr.Nanavati learned counsel submitted that the beneficiary being educational institute, cost need not be imposed. While dismissing the appeals of the beneficiary and allowing the appeals of the claimants, we say that cost will be paid by the respondent-State.