Karnataka High Court
Saibanna vs The Assistant Commissioner And Land ... on 16 March, 2000
Equivalent citations: ILR2000KAR1717, 2000(3)KARLJ643
Author: K.R. Prasada Rao
Bench: K.R. Prasada Rao
JUDGMENT
1. This appeal is filed by the claimant against the judgment and award passed by the learned Civil Judge, Gulbarga, in LAC No. 1 of 1989, seeking for enhancement of the compensation awarded.
2. A total extent of 4 acres 27 guntas of land belonging to the appellant in Sy. Nos. 129/1, 129/3, 129/4 and 129/74 situated in Taj Sulthanpur Taluk, Gulbarga, has been acquired by the respondent-L.A.O., Gulbarga, under a preliminary notification issued under Section 4(1) of the Land Acquisition Act (for short, the 'Act') which was published in Karnataka Gazette on 13-8-1981 for construction of KSRP Quarters, Gulbarga. The respondent passed the award on 30-6-1986 awarding compensation at the rate of Rs. 2,500/- per acre. Not being satisfied with the said compensation awarded, the claimant made an application before the respondent-L.A.O. seeking for a reference being made to the Trial Court for determining the market value of the acquired land and determining the just compensation payable to him. Accordingly, a reference was made to the Trial Court, which was registered as L.A.C. No. 1 of 1989. The Trial Court after recording the evidence adduced by both parties, passed the impugned award, determining the market value of the acquired land at the rate of Rs. 18,500/- per annum. Not being satisfied with the said enhanced compensation awarded by (sic) Reference Court, the claimant has filed the present appeal seeking for further enhancement of the compensation at the rate of Rs. 40,000/- per acre in the present appeal.
3. I have heard the arguments of Sri Ashok B. Patil, learned Counsel appearing for the appellant and Sri H.G. Sunder Kumar, learned High Court Government Pleader, appearing for the State.
4. It is submitted by the learned Counsel for the appellant that the Reference Court having found that under the sale transaction covered by the certified copy of the sale deed Ex. P-14 pertaining to the same locality, Taj Sulthanpur where the acquired lands are situated, of the year 1981 which is the same year of the publication of the preliminary notification pertaining to this case, the market value works out at 98 paise per sq. ft. and Rs. 41,400/- per acre, erroneously deducted 53% of the same amounting to Rs. 21,950/- towards developmental charges and erroneously estimated the market value at a lower value of Rs. 19,500/-per acre. He submitted that the said deduction towards developmental charges cannot be more than 33.33 per cent as held by the Full Bench decision of this Court in The Assistant Commissioner and Land Acquisition Officer, Karwar v Smt. Kamalabai Kom Laxman Metri.
He further contended that the Reference Court has erroneously not taken into consideration the report of the approved valuer Ex. P-13 and the evidence given by him as P.W. 2 that the market value of the acquired land works out to Rs. 87,000/- per acre. He also submitted that in respect of the lands situated in Kapnoor Village acquired under a preliminary notification of the year 1976 compensation was awarded at tbe rate of Rs. 47,000/- per acre by the Reference Court as per the judgment and award passed in L.A.C. No. 42 of 1979, certified copy of which is produced and marked as Ex. P-11, and the same compensation should have been awarded in respect of the acquired land since Kapnoor and Taj Sulthanpur Villages are situated at the same distance from the Gulbarga City as is evident from the report of the approved valuer Ex. P-13 and the evidence given by him and that the Reference Court has erroneously not taken into consideration the said judgment and award Ex. P-11 produced in the case. By way of additional evidence, he sought to produce the certified copy of the judgments rendered by this Court in M.F.A. No. 3738 of 1995 connected with M.F.A. No. 136 of 1995, DD: 20-1-1998 to show that in respect of 1 acre of land acquired under the preliminary notification dated 9-7-1981 in Kapnoor Village of Gulbarga, compensation was awarded Rs. 87,000/- per acre and he also sought to produce the judgment rendered by a Division Bench of this Court in M.F.A. No. 2557 of 1997, DD: 27-1-1998 to show that in respect of the land acquired in Vokkaligera Village under the preliminary notification dated 10-2-1982 compensation was awarded at the rate of Rs. 1,75,000/-per acre by confirming the judgment and award passed in L.A.C. No. 1 of 1985. He filed an application under Order 41, Rule 27, Civil Procedure Code.
He also produced a copy of the Gazette notification dated 30-10-1965 to show that Taj Sulthanpur Village is declared to be within the municipal limits of the Gulbarga City. He sought for permission to receive the said document by way of additional evidence by filing an application under Order 41, Rule 27, Civil Procedure Code. Placing reliance on the above referred oral and documentary evidence, he contended that the claimant is entitled for enhancement of compensation sought by him at the present rate of Rs. 40,000/- per acre. In reply to the above submissions, the learned High Court Government Pleader, submitted that the Trial Court has held that except the sale transaction pertaining to sale deed Ex. P-4, all other sale transactions relied upon by the claimant are not relevant for the purpose of deciding the market value of the acquired land since the other sale transactions pertain to different villages and they are of subsequent years to 1981. It is further pointed out by him that the Trial Court was justified in deducting 53% towards the developmental charges out of the market value fetched in respect of the lands sold under Ex. P-14 which is a small plot of land and in arriving at the market value of the acquired land as Rs. 19,500/- per acre. He relied upon the later decisions of the Supreme Court in Hassanali Khanbkai v State of Gujarat , Smt. Basavva and Others v Special Land Acquisition Officer and Others and Ratan Lal Gupta v Union of India , in support of his contention that 53% is to be deducted towards developmental charges from out of the market value fetched in respect of small plot of land for the purpose of determining the market value of the agricultural lands of larger extent. He also contended that the awards passed by this Court in M.F.A. No. 3738 of 1995 connected with M.F.A. No. 136 of 1995 are not relevant for determining the market value of the acquired land since they pertain to the lands of different villages. He further submitted the Trial Court has rightly held that the judgment in L.A.C. No. 42 of 1979 Ex. P. 11 pertains to a land acquired in Kapnoor Village, which is situated at a distance of 21/2 k.ms. from the acquired lands and so the compensation awarded in that case cannot be taken as the basis for fixing the market value of the acquired lands.
5. I have carefully gone through the impugned judgment and award passed by the Reference Court and the evidence adduced by both parties in the present case before the Reference Court.
6. The Reference Court has thoroughly discussed the documentary evidence produced by the claimant and has given sufficient reasons as to why the Court has not chosen to place reliance on the sale transaction pertaining to the lands in other villages. Apart from this fact, the claimant has not examined either the vendor or the vendee pertaining to the sale transactions of the lands acquired in other villages though he has produced the certified copies of the sale deeds. So, in my view, the Reference Court has rightly not chosen to place reliance on the said sale transactions. The claimant has produced the certified copy of the sale deeds Exs. P-15 to P-17 pertaining to the sale of plots of Taj Sulthanpur, sold under the registered sale deed dated 20-1-1983, 20-3-1985 and 20-1- 1983. Since those sale transactions pertain to the subsequent years, the Trial Court has rightly declined to rely upon those sale transactions for the purpose of determining the market value of these lands which were acquired in the year 1981. One other valid reason given by the Trial Court for not choosing to place reliance on the said sale transactions is non-examination of the vendor or the vendee pertaining to those sale transactions. The claimant produced the certified copy of the judgment in L.A.C. No. 42 of 1979 pertaining to the land acquired in L.A.C. No. 42 of 1979 in Sy. No. 127/1 of Kapnoor Village for T.V. Relay Centre in Gulbarga covered by the preliminary notification dated 9-9-1976. On the basis of the evidence given by the claimant, the Reference Court found that the said land is situated just adjoining gunj locality, whereas, the acquired land pertaining to this case is situated at a distance of 21/2 k.ms. away from the gunj area. These facts are found in the evidence of the claimant himself, who is examined as P.W. 1. So, in my view, the Reference Court was justified in not placing reliance on the said sale transactions for the purpose of determining the market value of the acquired land, which is situated in Taj Sulthanpur area. The claimant has also produced the judgment rendered in L.A.C. Nos. 57 and 58 of 1992 pertaining to the lands of Badepur, Gulbarga, acquired by G.D.A. during 1990 under Section 4(1) notification. Since those lands were acquired in the year 1996, the Reference Court rightly found that they are not relevant for the purpose of determining the market value of the lands acquired pertaining to this case in the year 1981. The claimant has also produced the judgment in L.A.C. No. 1 of 1985, dated 8-2-1985 pertaining to a land acquired in Vokkaiagere in Gulbarga under the preliminary notification of the year 1982.
But the Reference Court has not chosen to place reliance on the said judgment since it was set aside by this Court and the case was remanded for fresh disposal after impleading the beneficiary which is the Housing Board as a party to the said proceeding. The learned Counsel for the appellant has produced the certified copy of the award in the said case after remand to show that in respect of the said acquired land, compensation was awarded at Rs. 1,75,800/- per acre. However, since the said land is situated in a different village and it was acquired in the year 1982 i.e., one year after the land pertaining to this case was acquired, the compensation awarded in the said case cannot be taken as the basis for determining the market value of the lands acquired pertaining to this case. The claimant has also relied upon the judgment in L.A.C. No. 54 of 1988, dated 28-2-1994 in respect of a land acquired of Badepur in Gulbarga, under a preliminary notification dated 30-8-1984. He produced the certified copy of the judgment pertaining to that case, which is marked as Ex. P-4 and the certified copy of the judgment in M.F.A. No. 2107 of 1994, dated 10-7-1995 marked as Ex. P-5 to show that in respect of the lands acquired pertaining to that case, the market value was fixed at Rs. 1,03,000/-.
But the Reference Court has not chosen to place reliance on the said judgment since those lands are situated in a different village of chosen to place reliance on the said judgment since those lands are situated in a different village of Badepur which is towards Sedam Road; whereas the acquired lands pertaining to this case are situated in Taj Sulthanpur, which is towards exact opposite direction. Further, those lands were acquired in the year 1984 under the preliminary notification dated 30-8- 1984 about 3 years subsequent to the date of preliminary notification pertaining to the lands acquired in this case. The claimant has also produced the judgment in L.A.C. No. 42 of 1979 pertaining to Sy. No. 127/1 which is marked as Ex. P-11 to show that in respect of the lands acquired under the preliminary notification dated 9-9-1976 compensation is awarded at the rate of Rs. 40,000/- per acre. Since the claimant admitted that those lands are situated near gunj locality in Gulbarga and the acquired lands pertaining to this case are situated at a distance of 21/2 k.ms. from gunj locality, the Reference Court found that the market value determined in respect of those lands cannot be taken as a basis for fixing the market value of the acquired land pertaining to this case. The Reference Court has also not chosen to place any reliance on the report of the approved valuer marked as Ex. P-13, since the said report disclosed that he ascertained the market value of the acquired land on the basis of the sale transactions of the years 1983, 1984 and 1985 though the lands were acquired in the year 1981. However, the Reference Court has taken into consideration one sale transaction dated 30-1-1981 pertaining to an open plot of House No. 1-55 of Taj Sulthanpur Village measuring 42 ft. 3 inches x 17 ft. 6 inches which was sold for a consideration of Rs. 700/- which is one of the documents referred to in the said report Ex. P-13. Since the said sale transaction pertains to the year 1981 and of the same Taj Sulthanpur Village where the acquired lands are situated and since the vendor of the said sale transaction has also been examined as P.W. 3 by the claimant. On the basis of the said sale transaction, the market value fetched has been ascertained as 95 paise per sq. ft. which works out to Rs. 41,000/- per acre. The Reference Court has given deduction of 53% towards developmental charges and estimated the market value of the acquired land which is an agricultural land at the rate of Rs. 19,500/- per acre.
In my view, the Reference Court was justified in taking into consideration the said sale transaction since it pertains to the same village and of the same year of the preliminary notification pertaining to the lands acquired in the present case. However, it is argued by the learned Counsel for the appellant that in view of the Full Bench decision of this Court in Smt. Kamalabai Kom Laxman Metri's case, supra, only 33.33 per cent is to be deducted towards developmental charges and not at 53 per cent from out of the market value arrived at in respect of the sale of the plot of land pertaining to the above said sale transaction. It is no doubt held in the above decision of the Full Bench of this Court that "deduction towards developmental charges for arriving at the market value of the larger extent of land on hypothetical layout basis can only be up to 33 per cent". But, it is further pointed out by the learned High Court Government Pleader that the principle laid down in the above decision of this Court is based on the earlier decisions of the Supreme Court up to the year 1993 which were taken into consideration. It is also pointed out by him that in the subsequent decisions of the Supreme Court, it is reiterated that the developmental charges are to be deducted at the rate of 53% or even more. In support of this contention, he relied upon the decision of the Supreme Court in Hassanali Khanbhai's case, supra, wherein it was held that.-
"When the lands are sought to be used for building purposes, admittedly the entire land cannot be used for building purposes without providing roads, drainage, electricity and other civic amenities for which necessary deduction of 1/3rd should also be made".
At page 425, it is observed that.-
"...... This Court in Administrator General of West Bengal v Collector, Varanasi, has settled the law that when sales of small lands are found to be germane sales in developed area between willing purchaser and willing vendor but not too anxious buyer the value of small developed plots cannot directly be adopted in fixing the price for large extent and is not a safe guide in valuing large extent of lands. However, if it is found that large extent to be valued admits of and is ripe for use of building purposes, that building lots could be laid out on the land could be a good selling proposition and that valuation on the basis of method of hypothetical layout could with justification be adopted. Then in valuing such small layout any such valuation as included in the sales comparably small sites in some area at the time of notification would be relevant in such cases. Necessary deduction for the extent of the land required for the formation of the roads and other civic amenities requires to be made. In that case 50% was deducted".
In this decision, the Supreme Court held that the High Court was well-justified in deducting 60% of the market value towards developmental charges. He also relied upon another decision of the Supreme Court in Basavva's case, supra, wherein it was held that.-
"Deduction for development charges up to 53% is valid. Land acquired, capable of development but considering the fact that development of land would have taken years, High Court deducting 12% more i.e., 65%. Order of High Court is rational and justified".
He also placed reliance on another decision in Ratan Lal Gupta's case, supra, wherein it was held that.-
"When the market value is to be determined on the basis of small plots of land, the same price cannot be expected to be realised when a large track of land is offered to a willing purchaser by a willing vendor".
In para 6, it is observed that:
". . . . .In Administrator General of West Bengal case, supra, in paragraph 6, this Court had laid the principle of deduction of 53%, when small plots of land were found to be genuine sale and situated in a potentially developed area as a wholesale price. In Hassanali Khanbhai's case, supra, this Court also considered all the earlier cases and held that the small extents of land sold in plots, would not furnish the sole basis to fix same price offered by them. Therefore, the deduction of 60% of the value per square yard by the High Court was upheld by this Court".
7. The learned High Court Government Pleader has also placed reliance on a decision of the Supreme Court in Administrator General of West Bengal case, supra, wherein was held that:--
"It is trite proposition that prices fetched for small plots cannot form safe bases for valuation of large tracts of land as the two are not comparable properties. The principal that evidence of market value of sales of small, developed plots is not a safe guide in valuing large extents of land with potentialities for urban use has to be understood in its proper perspective. The principle requires that prices fetched for small developed plots cannot directly be adopted in valuing large extents. However, if it is shown that the large extent to be valued does admit of and is ripe for use for building purposes, that building lots that could be laid out on the land would be good selling propositions and that valuation on the basis of the method of a hypothetical layout could with justification be adopted, then in valuing such small, laid out sites the valuation indicated by sale of comparable small sites in the area at or about the time of the notification would be relevant. In such a case, necessary deductions for the extent of land required for the formation of roads and other civic amenities; expenses of development of the sites by laying out roads, drains, sewers, water and electricity lines, and the interest on the outlays for the period of deferment of the realisation of the price; the profits on the venture etc., are to be made. Deductions for land required for roads and other developmental expenses can, together, come up to as much as 53%. Accordingly, the prices fetched for small plots cannot directly be applied in the case of large areas, for the reason that the former reflects the 'retail' price of land and the latter the 'wholesale' price".
Thus, it is clear from the above recent decisions of the Supreme Court of the years 1995 and 1996 which were rendered after the decision of the Full Bench of this Court Smt. Kamalabai Kom Laxman Metri's case, supra, 53% of the value fetched in respect of smaller plot is to be deducted towards developmental charges for formation of roads, drains and for providing civic amenities for determining the market value of the larger extent of land acquired. In the instant case, admittedly the acquired lands are agricultural lands wherein the roads, drains etc., are to be formed besides providing civic amenities for making use of the said land for building the quarters for K.S.R.T.C. So, in my view, the Reference Court was justified in deducting 53% of the market value fetched in respect of a smaller plot of land in Taj Sulthanpur village towards developmental charges and in estimating the market value of the acquired land at the rate of Rs. 19,500/- per acre. At this stage, it is pointed out by the learned Counsel for the appellant that though the lands were acquired in the year 1981 possession of the same has been taken 3 years earlier i.e., 1978 itself and the said fact is also be taken into consideration for the purpose of estimating the percentage of deduction to be given towards developmental charges. But, in my view, the fact that possession was taken 3 years earlier, does not become relevant when some land is to be set apart for formation of roads and drains and expenses are to be incurred for providing civic amenities, the cost of which is to be reasonably estimated as 53% towards the said developmental charges. So far as the additional documentary evidence produced by the appellant in this Court which are the awards passed in M.F.A. No. 3738 of 1995 connected with M.F.A. 136 of 1995 and M.F.A. No. 2557 of 1997, are concerned admittedly they pertain to the lands acquired in different villages of Kapnoor and Vokkalagere. So, the compensation awarded in those cases cannot be taken as the basis for the purpose of determining the market value of the acquired lands of Taj Sulthanpur Village. Since the award passed by the Reference Court is based on the sale transaction pertaining to the year 1981 of Taj Sulthanpur Village, I find that the market value of the land determined by the Reference Court on the basis of the sale transaction after giving deduction of 53% towards developmental charges is the correct estimate of the value of the acquired land and I do not find any justifiable grounds to interfere with the judgment and award passed by the Reference Court.
8. This appeal is, therefore, dismissed. In the circumstances, I direct the parties to bear their respective costs.