Allahabad High Court
Smt. Tasneem And Others vs State Of U.P. And Others on 18 October, 2019
Equivalent citations: AIRONLINE 2019 ALL 1951, (2020) 139 ALL LR 115 (2019) 11 ADJ 406 (ALL), (2019) 11 ADJ 406 (ALL)
Author: Vivek Kumar Birla
Bench: Vivek Kumar Birla
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 30 Case :- FIRST APPEAL No. - 692 of 2001 Appellant :- Smt. Tasneem And Others Respondent :- State Of U.P. And Others Counsel for Appellant :- Ashutosh Srivastava,Iqbal Ahmed Counsel for Respondent :- K R Singh,S C Connected with Case :- FIRST APPEAL No. - 691 of 2001 Appellant :- Razi Shaheerul Hassan Others Respondent :- State Of U.P. And Others Counsel for Appellant :- Ashutosh Srivastava Counsel for Respondent :- K.R. Singh,S C Hon'ble Vivek Kumar Birla,J.
1. Heard Sri Ashutosh Srivastava, learned counsel for the appellant and Sri K.R. Singh, learned Standing Counsel appearing for the respondent no. 3.
2. Both the appeals are admittedly arising out of the same acquisition proceedings and learned counsel appearing for both the parties agree that the appeals may be decided together by taking the First Appeal No. 692 of 2001 as a leading case.
3. First Appeal No. 692 of 2001 has been filed challenging the judgment and order dated 19.2.2001 passed by Additional District Judge, Court No. 4, Gorakhpur in Land Acquisition Reference No. 150 of 1987 (Smt. Tasneem and others vs. State of U.P. and others) arising out of LA Case No. 32/8 of 1986 in respect of acquisition of land in Village Daudpur Tappa, Pargana Haveli, Tehsil Sadar, District Gorakhpur.
4. Plot Nos. 169/2 and 167/2 total area 3.78 acres were acquired by the Gorakhpur Development Authority for the purpose of development of IInd Phase Ramgarh Tal Pariyojana of Gorakhpur Development Authority. Notification under Section 4(1) of the Land Acquisition Act, 1894 (hereinafter referred to as the Act) was issued on 14.5.1983. Notification under Section 6(1) of the Act was issued on 5.5.1986. Possession was taken on 28.10.1986. The Special Land Acquisition Officer (hereinafter referred to as SLAO) vide award dated 7.10.1986 awarded compensation @ Rs. 1,24,193.53. Not being satisfied with the compensation awarded by the SLAO the claimants herein filed LAR No. 150 of 1987. Several other references were also filed against the impugned award. LAR No. 150 of 1987 was taken as a leading case. The reference was dismissed in toto by the reference court mainly on the ground that the exempler sale deed dated 1.7.1982 relied on by the SLAO for determination of market value was correctly relied on. Certified copies of the sale deed dated 9.12.1982 Ex. 4 (wrongly mentioned as 22.11.1982) in respect of Plot No. 225 filed by the claimants was discarded on the ground that the vendor and vendee were not examined. Another sale deed dated 9.2.1981 Ex. 5 (wrongly mentioned as 10.10.1980) in respect of Plot No. 125/1 area 1890 sq. ft. filed by the claimants was discarded on the ground that it was for a very small piece of area.
5. Submission of learned counsel for the appellant is that extremely low award @ Rs. 2.84 per sq. ft. has been awarded by the SLAO as against Rs. 60/- per sq. ft. claimed by the claimants. He further submits that even assuming that the land acquired was agricultural in nature, it has great potentiality because of its location as the same is located in the heart of city of Gorakhpur. He further submits that it is not in dispute that the land was acquired for the purpose of construction of open area theatre, hotel, restaurant, cafeteria, aquarium, bird santuary, children park, petrol pump, skating rink stadium, deer park, camping ground etc., which itself goes to prove that the acquisition was for the purpose of further developing developed area and as such the claimants were entitled to higher rate of compensation than what was determined by the SLAO. The court below has miserably failed to take note of these aspects of the matter which has vitiated the entire judgment and order. He further submits that oral evidence of DW-1 itself is sufficient to prove that the land was in close proximity to the heart of the city. Apart from the facts that have been asserted regarding potentiality of the land and its proximity with the city it has further been submitted that the exempler sale deed dated 1.7.1982, relied on by the SLAO for determination of market value and as affirmed by the reference court, is not even on record and therefore, merely because the same was included in the list of documents it could not have been relied on by the SLAO for determination of market value. He further submits that his certified copies of sale deed dated 9.12.1982 Ex. 4 were discarded on the ground that the vendor and vendee were not examined. He submits that the law in this regard is well settled and Section 51-A of the Land Acquisition Act, 1894 (hereinafter referred to as the Act) clearly provides that such exempler sale deed could have been relied on or at least was liable to be considered even without examining the vendor and vendee.
6. Broadly speaking, the submission of learned counsel for the appellant is two fold: (1) the SLAO has relied on the exempler sale deed dated 1.7.1982, which is not even on record and therefore, it was no evidence in the eye of law, which could have been relied on by the SLAO for determining the market value of the acquired land and; (2) the exempler given by the claimants has incorrectly been discarded on the ground that vendor and vendee were not examined, which is contrary to the law settled by the Hon'ble Apex Court. He also sought to make submission for the purpose of determination of market value as per Section 23 of the Act.
7. Learned counsel for the appellant has placed reliance on judgments on Hon'ble Apex Court in the cases of Union of India vs. Dyagala Devamma and others 2018 (11) SCC 485, Vinod Bansal vs. State of Haryana and another 2013 (5) SCC 622, Mehrawal Khewaji Trust (registered) Faridkot and others vs. State of Punjab and others 2012 (5) SCC 432, Mahesh Dattatray Thirthkar vs. State of Maharashtra 2009 (11) SCC 141, Lal Chand vs. Union of India 2009 (15) SCC 760, Chimanlal Hargovinddas vs. Special Land Acquisition Officer Poona of Punjab and others 1988 (3) SCC 751, Vijay Kumar Moti Lal vs. State Maharashtra 1981 (2) SCC 719 and State of Haryana vs. Ram Singh 2001 (6) SCC 254.
8. Per contra, Sri K.R. Singh, learned counsel appearing for the acquiring body Gorakhpur Development Authority, insofar as first argument is concerned, fairly admitted that the exempler sale deed dated 1.7.1982 is not on record of the court below. He, however, submits that since the details of such sale deed were available and therefore, no illegality was committed by the SLAO in placing reliance on the same for the purpose of determination of market value and reference court has rightly rejected the reference in toto. Insofar as rejection of certified copies of the exempler sale deeds dated 9.12.1982 Ex. 4 submitted by the claimants is concerned, he submits that the sale deeds were rightly discarded as the contents of the sale deed were not produced by producing the vendor and vendee. He submits that it is the discretion of the authority / court to place reliance on the same or not. He submits that in the present case the SLAO as well as the reference court did not find safe to place reliance on the same in absence of examination of vendor and vendee and therefore, no interference is required in the impugned judgment.
9. I have considered the rival submissions and have perused the record.
10. In this appeal two questions arise for consideration. One, whether the exempler sale deed that has been relied on by the SLAO for determination of the market value, is part of the part of the record or not, if not, can it said to be a piece of evidence; two, whether certified copy of the exempler sale deed dated 9.12.1982 relied on by the claimants was acceptable in evidence even without examining the vendor and vendee in view of Section 51-A of the Act?
11. Apart from the rulings that have been relied on by learned counsel for the appellant I have also gone through the judgments rendered in the cases of Krishan Kumar vs. Union of India and others 2015 (1) SCC 220, Himmat Singh and others vs. State of M.P. and others 2013 (16) SCC 392, A.P. Housing Board vs. K. Manohar Reddy and others 2010 (12) SCC 707, Lal Chand vs. Union of India and others 2009 (15) SCC 769, Deputy Collector, Land Acquisition, Gujarat and others vs. Madhubai Gobarbhai and others 2009 (15) SCC 125, Cement Corporation of India Limited vs. Purya and others 2004 (8) SCC 270 (5 Judges Constitutional Bench), Land Acquisition Officer and Mandal Revenue Officer 2001 (3) SCC 530, Ram Phal and others vs. State of U.P. and others 2019 (5) ADJ 649, Vimal Kumar Misra and others vs. Collector Mainpuri and others 2019 (4) ADJ 463, Bajaj Hindustan Limited vs. Rajendra Singh and others 2019 (1) ADJ 271, Jasvir Singh vs. Land Acquisition Officer, Rampur and another 2014 SCC Online All 15658 and Indian Oil Corporation Limited vs. Risal Singh and others Manu/Ph/0073/2019.
12. Before considering the arguments regarding potentiality of the land and proximity of exempler sale deed in time and situation, it would be appropriate to deal with the question as to whether the exempler sale deed that has been relied on by the SLAO for determination of the market value, is part of the part of the record or not, if not, can it said to be a piece of evidence? Suffice to note that exempler relied on by the SLAO for determination of market value compensation of Rs. 1,16,666.67 per acre in respect of Plot No. 261/1 area 0.03 acres, as admitted to Sri K.R. Singh, learned counsel appearing for the Development Authority that this exempler is not part of the record, therefore, could not have been considered by the reference court. Once the document is not part of the record, mere availability of the details of the documents could not have been treated to be part of the evidence for the purpose of determining market value as it is not a piece of evidence in the eye of law. In other words, on the part of the respondent Development Authority, there was no primary or secondary evidence available on record and hence reliance placed on the same was absolutely misplaced.
13. A reference may be made in this regard to various provisions of the Indian Evidence Act, 1872. Section 3 of the Evidence Act provides as to what is "evidence". Chapter V contains provision regarding documentary evidence. Section 61 provides that the contents of documents may be proved either by primary or by secondary evidence. Section 62 provides what is primary evidence. Section 63 provides what is secondary evidence. Section 64 clearly provides that documents must be proved by primary evidence except in the cases hereinafter mentioned and Section 65 contains in which cases secondary evidence can be given. For ready reference, these provisions are quoted as under:-
"3. Interpretation clause.- ...........
"Evidence" - "Evidence" means and includes-
(1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry;
such statements are called oral evidence;
(2) [all document including electronic records produced for the inspection of the Court], such statements are called documentary evidence;
61. Proof of contents of documents.- The contents of documents may be proved either by primary or secondary evidence.
62. Primary evidence.- Primary evidence means the documents itself produced for the inspection of the Court.
Explanation 1- Where a document is executed in several parts, each part is primary evidence of the document :
Where a document is executed in counterpart, each counterpart being executed by one or some of the parties only, each counterpart is primary evidence as against the parties executing it.
Explanation 2- Where a number of documents are all made by one uniform process, as in the case of printing, lithography, or photography, each is primary evidence of the contents of the rest ; but, where they are all copies of a common original, they are not primary evidence of the contents of the original.
63. Secondary evidence.- Secondary evidence means and includes--
(1) certified copies given under the provisions hereinafter contained;
(2) Copies made from the original by mechanical processes which in themselves ensure the accuracy of the copy, and copies compared with such copies.
(3) copies made from or compared with the original ;
(4) counterparts of documents as against the parties who did not execute them;
(5) oral accounts of the contents of a documents given by some person who has himself seen it.
64. Proof of documents by primary evidence.- Documents must be proved by primary evidence except in the cases hereinafter mentioned.
65. Cases in which secondary evidence relating to documents may be given.- Secondary evidence may be given of the existence, condition, or contents of a documents in the following cases:-
(a) When the original is shown or appears to be in the possession or power--
of the person against whom the document is sought to be proved , or of any person out of reach of, or not subject to, the process of the Court or of any person legally bound to produce it, and when, after the notice mentioned in section 66, such person does not produce it;
(b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;
(c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;
(d) when the original is of such a nature as not to be easily movable;
(e) when the original is public document within the meaning of section 74;
(f) when the original is a document of which a certified copy is permitted by this Act, or by any other law in force in 40[India] to be given in evidence ;
(g) when the originals consist of numerous accounts or other documents which cannot conveniently be examined in court and the fact to be proved it the general result of the whole collection.
In cases (a), (c) and (d), any secondary evidence of the contents of the document is admissible.
In case (b), the written admission is admissible.
In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, admissible.
In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents."
14. Clearly, if the Development Authority was placing reliance on a sale deed, either original should have been produced or its certified copy could have been filed, which, as per Section 51-A of the Act was acceptable in evidence without examination of vendor and vendee (as discussed in later part of this judgment). Clearly, the contents of the exempler sale deed, i.e. the document, were not proved in accordance with the aforesaid provisions of the Evidence Act. In fact, admittedly, the document itself was not on record. Therefore, the conclusion drawn in the preceding paragraphs is inescapable.
15. Learned counsel for the respondent had submitted that the court below rightly rejected the exempler sale deed (Ex. 4) submitted by the claimants and there was cogent evidence on record to reject the reference in toto.
16. Insofar as the second question and rejection of exempler sale deed dated 9.12.1982 submitted by the claimants in respect of Plot No. 225 is concerned, as held by Hon'ble Apex Court in the case of Cement Corporation of India Limited (supra) in view of Section 51-A of the Act such documents are acceptable in evidence even without examination of vendor and vendee. Section 51-A of the Act is quoted as under:-
"51 A. Acceptance of certified copy as evidence- In any proceeding under this Act, a certified copy of a document registered under the Registration Act, 1908 (16 of 1908), including a copy given under section 57 of that Act be accepted as evidence of the transaction recorded in such-document."
17. Paragraphs 2, 18, 20.21, 24, 25, 26, 27, 28, 29, 31, 32, 35, 36, 37 and 39 of the Cement Corporation of India Limited (supra) are quoted as under:-
"2. In Kurra Sambasiva Rao's case (supra), this Court held that by introducing Section 51A in the Land Acquisition Act, 1894 (hereinafter LA Act) the Legislature only facilitated the parties concerned to produce a certified copy of a sale transaction in evidence and nothing more. This is what the Court observed in the said case:
"Section 51-A only dispenses with the production of the original sale deed and directs to receive certified copy for the reason that parties to the sale transaction would be reluctant to part with the original sale deed since acquisition proceedings would take long time before award of the compensation attains finality and in the meanwhile the owner of the sale deed is precluded from using the same for other purposes vis-a-vis this land. The marking of the certified copy per se is not admissible in evidence unless it is duly proved and the witnesses, viz., the vendor or the vendee, are examined."
18. From the above, it is seen that till the judgment of the three Judge Bench in V. Narasaiah's case (supra), the consensus of judicial opinion was that Section 51A was enacted for the limited purpose of enabling a party to produce certified copy of a registered sale transaction in evidence only and for proving the contents of the said document the parties had to lead oral evidence as contemplated in the Evidence Act.
20. The above view of the Court in Kurra Sambasiva Rao's case, in our opinion, is not the correct position in law. Even prior to the insertion of Section 51A of the Act the provisions of the Evidence Act and the Registration Act did permit the production of a certified copy in evidence. This has been clearly noticed in the judgment in Narsaiah's case wherein the court relying on Sections 64 and 65(f) of the Evidence Act read with Section 57(5) of the Registration Act held that production of a certified copy of a registered sale document in evidence was permissible in law even prior to insertion of Section 51A in the LA Act. We are in agreement with the said view expressed by this Court in Narasaiah's case.
21. In the above background the question for our consideration would be, what then is the real object of inserting 51A in LA Act?
24. The terms 'primary and secondary evidence' apply to the kinds of proof that may be given to the contents of a document, irrespective of the purpose for which such contents, when proved, may be received. Primary evidence is an evidence which the law requires to be given first; secondary evidence is evidence which may be given in the absence of that better evidence when a proper explanation of its absence has been given. However, there are exceptions to the aforementioned rule.
25. Section 51A of the Land Acquisition Act seeks to make an exception to the aforementioned rule.
26. In the acquisition proceedings, sale deeds are required to be brought on records for the purpose of determining market value payable to the owner of the land when it is sought to be acquired.
27. Although by reason of the aforementioned provision the parties are free to produce original documents and prove the same in accordance with the terms of the rules of evidence as envisaged under the Indian Evidence Act the LA Act provides for an alternative thereto by inserting the said provision in terms whereof the certified copies which are otherwise secondary evidence may be brought on record evidencing a transaction. Such transactions in terms of the aforementioned provision may be accepted in evidence. Acceptance of an evidence is not a term of art. It has an etymological meaning. It envisages exercise of judicial mind to the materials on record. Acceptance of evidence by a court would be dependent upon the facts of the case and other relevant factors. A piece of evidence in a given situation may be accepted by a court of law but in another it may not be.
28. Section 51A of the L.A. Act may be read literally and having regard to the ordinary meaning which can be attributed to the term 'acceptance of evidence' relating to transaction evidenced by a sale deed, its admissibility in evidence would be beyond any question. We are not oblivious of the fact that only by bringing a documentary evidence in the record it is not automatically brought on the record. For bringing a documentary evidence on the record, the same must not only be admissible but the contents thereof must be proved in accordance with law. But when the statute enables a court to accept a sale deed on the records evidencing a transaction, nothing further is required to be done. The admissibility of a certified copy of sale deed by itself could not be held to be inadmissible as thereby a secondary evidence has been brought on record without proving the absence of primary evidence. Even the vendor or vendee thereof is not required to examine themselves for proving the contents thereof. This, however, would not mean that contents of the transaction as evidenced by the registered sale deed would automatically be accepted. The legislature advisedly has used the word 'may'. A discretion, therefore, has been conferred upon a court to be exercised judicially, i.e., upon taking into consideration the relevant factors.
29. In V.Narasaiah's case, this Court correctly understood the said scope and object of insertion of Section 51A in the LA Act when it held thus :
"It was in the wake of the aforesaid practical difficulties that the new Section 51A was introduced in the LA Act. When the section says that certified copy of a registered document "may be accepted as evidence of the transaction recorded in such document" it enables the court to treat what is recorded in the document, in respect of the transactions referred to therein, as evidence."
31. Thus, the reasoning of this Court in Narasaiah's case that Section 51A enables the party producing the certified copy of a sale transaction to rely on the contents of the document without having to examine the vendee or the vendor of that document is the correct position in law. This finding in Narasaiah's case is also supported by the decision of this Court in the case of Mangaldas Raghavji Ruparel (supra).
32. Therefore, we have no hesitation in accepting this view of the court in the Narasaiah's case as the correct view.
35. A registered document in terms of Section 51A of the Act may carry therewith a presumption of genuineness. Such a presumption, therefore, is rebuttable. Raising a presumption, therefore, does not amount to proof; it only shifts the burden of proof against whom the presumption operates for disproving it. Only if the presumption is not rebutted by discharging the burden, the court may act on the basis of such presumption. Even when in terms of the Evidence Act a provision has been made that the court shall presume a fact, the same by itself would not be irrebuttable or conclusive. The genuineness of a transaction can always fall for adjudication, if any question is raised in this behalf.
36. Similar is the view taken by this Court in V. Narasaiah's case wherein this Court held thus :-
"the words "may be accepted as evidence" in the Section indicate that there is no compulsion on the court to accept such transaction as evidence, but it is open to the court to treat them as evidence. Merely accepting them as evidence does not mean that the court is bound to treat them as reliable evidence. What is sought to be achieved is that the transactions recorded in the documents may be treated as evidence, just like any other evidence, and it is for the court to weigh all the pros and cons to decide whether such transaction can be relied on for understanding the real price of the land concerned".
37. Having noticed the scope of Section 51A of the LA Act as understood by this Court in V. Narasaiah's case to be the correct interpretation, we will now consider whether such evidence is mandatorly binding on the authority or the court concerned or it is only an enabling provision.
39. While it is clear that under Section 51A of the LA Act a presumption as to the genuineness of the contents of the document is permitted to be raised, the same can be relied upon only if the said presumption is not rebutted by other evidence. In the said view of the matter we are of the opinion the decision of this Court in the case of Land Acquisition Officer & Mandal Revenue Officer vs. V. Narasaiah (supra) lays down the correct law."
(emphasis supplied)
18. In view of the aforesaid Five Judges constitutional Bench I do not wish to burden my judgment by referring to other judgments. Suffice to note that subsequent to the aforesaid judgment the stand taken by Hon'ble Apex Court as well as by Hon'ble Division and Hon'ble Single Judge of this Court on interpretation of Section 51-A of the Act is consistent in nature and is in the line of the aforesaid judgment.
19. I have also noticed the fact that the impugned judgment was passed by the reference court on 19.2.2001 and till that date the judgment rendered by Hon'ble Apex Court in the case of Special Deputy Collector vs. Kurra Sambasiva Rao 1997 (6) SCC 41 was holding field as the judgment in the case of Land Acquisition Officer and Mandal Revenue Officer vs. V. Narasaiah 2001 (3) SCC 530 was rendered subsequently on 27.2.2001. In such view of the matter, it cannot be said that at that point of time the reference court has taken illegal view in the matter in rejecting the exempler sale deed dated 9.12.1982 (Ex. 4) submitted by the claimants. However, in Cement Corporation of India Limited (supra) after taking into account the contrary view taken in the case of Kurra Sambasiva Rao (supra) and V. Narasaiah (supra) it has been held that such document is admissible in evidence. A presumption as to the genuineness of the contents of1-16 the document is permitted to be raised and the same can be relied upon only if the said presumption is not rebutted by any other evidence.
20. There is a presumption of genuineness regarding such registered document in view of Section 51-A of the Act, however, in Cement Corporation of India Limited (supra) Hon'ble Apex Court has also considered as to whether such evidence is mandatorily binding on the authority or court or it is only an enabling provision. It was held that it is clear that under Section 51-A of the Act a presumption as to the genuineness of the contents of the document is permitted to be raised, the same can be relied upon only if the said presumption is not rebutted by other evidence. The view taken in V. Narasaiah (supra) held to be the correct evidence.
21. In the present case, from perusal of record, I find that there was no evidence in rebuttal regarding such presumption. The evidence that was considered by the reference court is, admittedly, not on record of the reference court.
22. In such view of the matter, it is clear that on one hand, now the law is settled that the certified copy of the registered sale deed (Ex. 4) dated 9.12.1982 could not have been rejected merely because vendor and vendee were not examined, and on the other hand, the court below has relied on the contents of a document, which is not on record and therefore, there is no evidence in rebuttal in the eye of law to form opinion or basis for the compensation awarded.
23. In Vinod Bansal (supra) Hon'ble Apex Court after dealing with the provision of Section 51-A of the Act remanded back the matter to the reference court for fresh disposal. Paragraphs 7, 8 and 9 of the aforesaid judgment are quoted as under:-
"7. Since there was conflict of decisions as regards receiving of certified copies of sale deeds in evidence in view of Sections 51-A of the Act and the position of law not being clear, the learned Single Judge of the High Court took the view that Section 51-A of the Act nowhere provides that certified copy of a registered document not properly proved can be admitted in evidence; Section 51-A of the Act only makes a certified copy of the document obtained from the registering officer admissible in evidence without production of their originals; 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 the market value of the acquired lands. The learned Single Judge also held that the learned Additional District Judge had not committed any illegality in saying that the sale deeds were not admissible in evidence.
8. Having heard the learned counsel for the parties and after perusing the orders of the Reference Court, the learned Single Judge and the impugned orders, particularly, keeping in view the legal position as to the admissibility of certified copies of sale deeds in evidence in the light of the legal position stated by the Constitution Bench in Cement Corpn. of India Ltd. v. Purya aforementioned, we are satisfied that the matters are required to be remitted to the Reference Court for fresh disposal.
9. The Reference Court has to reappreciate the evidence which it had considered earlier, uninfluenced by observations made in the judgments of the learned Single Judge and the Division Bench of the High Court, including the certified copies of the sale deeds in the light of the Constitution Bench decision in Cement Corpn. of India Ltd. v. Purya5 explaining the position of law in relation to Section 51-A of the Act. The parties shall not be permitted either to produce any additional documents or lead any further evidence except rebuttal evidence in regard to certified copies of the sale deeds already produced to the extent indicated in the Constitution Bench judgment Court."
(emphasis supplied)
24. In the case of Dyagala Devamma (supra) Hon'ble Apex Court while considering the landmark judgment Hon'ble Apex Court in Chimanlal Hargovinddas vs. Special Land Acquisition Officer, Poona and another 1988 (3) SCC 751 reiterated what broad principles of law relating to acquisition of land under the Act should be kept in consideration to determine the proper market value. The factor which must be taken into consideration to assess the valuation of land under the Act were laid down in paragraph 4 of Chimanlal Hargovinddas (supra), which is quoted as under:-
"4. The following factors must be etched on the mental screen:
(1) A reference under section 18 of the Land Acquisition Act is not an appeal against the award and the Court cannot take into account the material relied upon by the Land Acquisition officer in his Award unless the same material is produced and proved before the Court.
(2) So also the Award of the Land Acquisition officer is not to be treated as a judgment of the trial Court open or exposed to challenge before the Court hearing the Reference. It is merely an offer made by the Land Acquisition officer and the material utilised by him for making his valuation cannot be utilised by the Court unless produced and proved before it. It is not the function of the Court to suit in appeal against the Award, approve or disapprove its reasoning, or correct its error or affirm, modify or reverse the conclusion reached by the Land Acquisition officer, as if it were an appellate court.
(3) The Court has to treat the reference as an original proceeding before it and determine the market value afresh on the basis of the material produced before it.
(4) The claimant is in the position of a plaintiff who has to show that the price offered for his land in the award is inadequate on the basis of the materials produced in the Court. Of course the materials placed and proved by the other side can also be taken into account for this purpose. (5) The market value of land under acquisition has to be determined as on the crucial date of publication of the notification under sec. 4 of the Land Acquisition Act (dates of Notifications under secs. 6 and 9 are irrelevant).
(6) The determination has to be made standing on the date line of valuation (date of publication of notification under sec. 4) as if the valuer is a hypothetical purchaser willing to purchase land from the open market and is prepared to pay a reasonable price as on that day. It has also to be assumed that the vendor is willing to sell the land at a reasonable price.
(7) In doing so by the instances method, the Court has to correlate the market value reflected in the most comparable instance which provides the index of market value.
(8) only genuine instances have to be taken into account. (Some times instances are rigged up in anticipation of Acquisition of land). (9) Even post notification instances can be taken into account (1) if they are very proximate,(2) genuine and (3) the acquisition itself has not motivated the purchaser to pay a higher price on account of the resultant improvement in development prospects.
(l0) The most comparable instances out of the genuine instances have to be identified on the following considerations:
(i) proximity from time angle,
(ii) proximity from situation angle.
(11) Having identified the instances which provide the index of market value the price reflected therein may be taken as the norm and the market value of the land under acquisition may be deduced by making suitable adjustments for the plus and minus factors vis-a-vis land under acquisition by placing the two in juxtaposition.
(12) A balance-sheet of plus and minus factors may be drawn for this purpose and the relevant factors may be evaluated in terms of price variation as a prudent purchaser would do.
(13) The market value of the land under acquisition has there after to be deduced by loading the price reflected in the instance taken as norm for plus factors and unloading it for minus factors (14) The exercise indicated in clauses (11) to (13) has to be undertaken in a common sense manner as a prudent man of the world of business would do. We may illustrate some such illustrative (not exhaustive) factors:
Plus factors Minus factors 1. smallness of size 1. largeness of area 2. proximity to a road. 2. situation in the interior at a distances from the Road. 3. frontage on a road. 3. narrow strip of land with very small frontage compared to death. 4. nearness to developed area. 4. lower level requiring the depressed portion to be filled up. 5. regular shape 5. remoteness from developed locality 6. level vis-a-vis land under acquisition 6. some special disadvantageous factor which would deter a purchaser 7. special value for an owner of an adjoining property to whom it may have some very special advantage.
(15) The evaluation of these factors of course depends on the facts of each case. There cannot be any hard and fast or rigid rule. Common sense is the best and most reliable guide. For instance, take the factor regarding the size. A building plot of land say 500 to 1000 sq. yds cannot be compared with a large tract or block of land of say l000 sq. yds or more. Firstly while a smaller plot is within the reach of many, a large block of land will have to be developed by preparing a lay out, carving out roads, leaving open space, plotting out smaller plots, waiting for purchasers (meanwhile the invested money will be blocked up) and the hazards of an entrepreneur. The factor can be discounted by making a deduction by way of an allowance at an appropriate rate ranging approx. between 20% to 50% to account for land required to be set apart for carving out lands and plotting out small plots. The discounting will to some extent also depend on whether it is a rural area or urban area, whether building activity is picking up, and whether waiting period during which the capital of the entrepreneur would be looked up, will be longer or shorter and the attendant hazards.
(16) Every case must be dealt with on its own facts pattern bearing in mind all these factors as a prudent purchaser of land in which position the Judge must place himself.
(17) These are general guidelines to be applied with understanding informed with common sense."
25. Under such circumstances, this Court is not inclined to go into the determination of market value in this appeal and is of the opinion that it would be appropriate to remand back the matter to the reference court for decision afresh.
26. As held in paragraph 9 of Vinod Bansal (supra) the parties shall not be permitted either to produce any additional evidence or lead any further evidence except rebuttal evidence in regard to certified copies of the sale deeds already produced to the extent indicated in the Constitution Bench judgment in Cement Corporation of India Limited (supra).
27. The impugned judgment dated 19.2.2001 passed by the reference court is hereby set aside. Matter is accordingly remanded back to the reference court for decision afresh on its own merits as per the law discussed above.
28. In view of the above both the appeals stand allowed.
Order Date :- 18.10.2019 Lalit Shukla