Madhya Pradesh High Court
Rajesh Kumar & Anr. vs State Of M.P.& Ors. on 25 October, 2017
Author: S.K.Awasthi
Bench: S.K.Awasthi
-( 1 )- FA No. 65/2002
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
SINGLE BENCH
BEFORE JUSTICE S.K.AWASTHI
First Appeal No 65/2002
Rajesh Kumar and another
Versus
State of MP & others
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Shri Sunil Jain, Advocate for the appellants.
Shri Vivek Khedkar, Assistant Solicitor General for
respondent No.3 and 4/Union of India.
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JUDGMENT
(25.10.2017 ) This appeal under Section 96 of the Code of Civil Procedure, 1908 (for short, the 'CPC'), read with Section 54 of Land Acquisition Act, 1894 (in short, 'Act') is directed against award dated 01.05.2000 passed by II Additional District Judge, Shivpuri, in Civil Misc. Case No. 15/1998, for seeking enhancement in the awarded amount.
2. The facts necessary for decision on the instant appeal are that the present appellants were owner of land bearing Survey No. 960 admeasuring 3.53 Hectares in Village Kalothara, District Shivpuri, which was compulsorily acquired by issuing notification under Section 4 of the Act for the purpose of construction of Ordinance Storage by Indo Tibetan Border Police (ITBP). Consequent to the acquisition, the award was pronounced by the Competent Authority whereby the land in question was taken as unirrigated agriculture land due to which the amount of compensation was fixed at a lower side. Therefore, a reference to the Court was made under Section 18 of the Act which was decided on 01.05.2000 and the award was pronounced in favour of -( 2 )- FA No. 65/2002 the present appellants.
3. Learned counsel for the appellants submitted that, the appellants had placed on record overwhelming evidence reflecting the actual value of the land and therefore, they are entitled to receive at least Rs. 8 per Sq. Ft. as compensation. He further invited attention of this Court to the documents marked as Ex. P-1 to P-9 which are the sale deeds executed just prior to the date of notification. Learned counsel for the appellant brought into notice of this Court the statements of Rajesh Kumar (PW-1), Balkrishnan (PW-2) and Gokul Prasad Sahu (PW-3) to show that the location of the land in question was commercially viable and if the land was not acquired, then the appellant could have fetched much more premium from such land. He submitted that the deductions made by the learned court below were unreasonable and the analogy drawn by the Court that higher tract of land fetches lesser value than the smaller tracts of land is also without any basis rather the court below ought to have considered that there was a tourist hotel nearby and that, the appellant would have sold the land by dissecting the land into a number of plots. Thus, he seeks enhancement in the award pronounced by the court below.
4. On the other hand, learned counsel for the respondents submitted that the computation of compensation by the court below is just and proper as all relevant features of land have been taken into consideration and thereafter, the amount of compensation has been manifolded than the one fixed by the Competent Authority.
5. The challenge before this Court is confined to the methodology adopted by the Court below while -( 3 )- FA No. 65/2002 computing the amount of compensation. In this regard, it is argued that the deduction of 50% for the reason that the land in question is significantly away from the National Highway and thus, has no proximity has been called in question. There is no denial of the fact that proximity with National Highway is one of the important criteria for computation of compensation; however, the exemplar land which has been made basis for calculation is on the side of the National Highway and the land in question is adjoining to the same. Therefore, the deduction of 50% is unreasonable. However, the contention that the appellants had placed on record several sale deeds yet the Court below has not judiciously fixed the retail price is misconceived because the Court below had opted for the highest bona fide exemplar price of a land within the same vicinity which is an acceptable method of calculation and has been duly given a stamp of approval by the Hon'ble Apex Court in the case of Himmat Singh and others vs. State of Madhya Pradesh and another, (2013) 16 SCC 392, wherein while discussing the law laid down in earlier judicial pronouncement held that:
"29. In Mehrawal Khewaji Trust v. State of Punjab [(2012) 5 SCC 432: (2012) 3 SCC (Civ) 177] , another two-Judge Bench restated the law in the following words: (SCC pp. 436-37, para 17) "17. It is clear that when there are several exemplars with reference to similar lands, it is the general rule that the highest of the exemplars, if it is satisfied that it is a bona fide transaction, has to be considered and accepted. When the land is being compulsorily taken away from a person, he is entitled to the highest value which similar land in the locality is shown to have fetched in a bona fide transaction -( 4 )- FA No. 65/2002 entered into between a willing purchaser and a willing seller near about the time of the acquisition. In our view, it seems to be only fair that where sale deeds pertaining to different transactions are relied on behalf of the Government, the transaction representing the highest value should be preferred to the rest unless there are strong circumstances justifying a different course. It is not desirable to take an average of various sale deeds placed before the authority/court for fixing fair compensation."
38. However, keeping in view the proposition laid down in M. Vijayalakshmamma Rao Bahadur v. Collector of Madras [(1969) 1 MLJ 45 (SC)] , State of Punjab v. Hans Raj [(1994) 5 SCC 734] , Anjani Molu Dessai v. State of Goa [(2010) 13 SCC 710 : (2011) 1 SCC (Civ) 788] and Mehrawal Khewaji Trust v. State of Punjab [(2012) 5 SCC 432 : (2012) 3 SCC (Civ) 177] , we would adopt the first mode and hold that the appellants are entitled to compensation at the rate of Rs 8.93 per square foot."
6. The next contention of the learned counsel for the appellant is that the analogy drawn by the learned court below that small plots fetch lesser value vis a vis large plots is erroneous. In this regard, reliance is placed upon the judgment of Kerala High Court in Saina Beewi v. State of Kerala, passed in L.App. No.107 of 2007 (B), decided on 17.9.2009, in which it is submitted that the Court in Para 9 held that the deduction of 10% in retail price for arriving at a wholesale price is an acceptable method.
7. I have carefully examined the judgment placed on record and in my opinion, the judgments have no basis for arriving at a rate of 10%, more particularly because the judgments referred in Para 9 of Saina Beewi (supra) have no relation with the subject matter of the present case.
-( 5 )- FA No. 65/20028. Apart from it, the size of the plot has been accepted as a ground for arriving at a fair compensation. In this regard, the judgment of Hon'ble Apex Court in the case of Kapil Mehra v. Union of India, (2015) 2 SCC 262, is relevant and the relevant portion is reproduced herein below:-
"14. While taking comparable sales method of valuation of land for fixing the market value of the acquired land, there are certain factors which are required to be satisfied and only on fulfilment of those factors, the compensation can be awarded according to the value of the land stated in the sale deeds. In Karnataka Urban Water Supply and Drainage Board v. K.S. Gangadharappa [(2009) 11 SCC 164 : (2009) 4 SCC (Civ) 483] , factors which merit consideration as comparable sales are, inter alia, laid down as under: (SCC p. 168, para 8) "8. '16. "9. It can be broadly stated that the element of speculation is reduced to minimum if the underlying principles of fixation of market value with reference to comparable sales are made:
(i) when sale is within a reasonable time of the date of issuance of notification under Section 4(1);
(ii) it should be a bona fide transaction;
(iii) it should be of the land acquired or of the land adjacent to the land acquired; and
(iv) it should possess similar advantages.
10. It is only when these factors are present, it can merit a consideration as a comparable case (see Land Acquisition Officer v. T. Adinarayan Setty [AIR 1959 SC 429] .)"
These aspects have been highlighted in Ravinder Narain v. Union of India [(2003) 4 SCC 481] , SCC p. 484, paras 9-10. [Ed.: As observed in LDA v. Krishna Gopal Lahoti, (2008) 1 SCC 554, pp. 557-58, para 16 :
(2008) 1 SCC (Civ) 352.] -( 6 )- FA No. 65/2002
16. Exts. A-7 to A-10 are lease deeds of small plots executed by DDA. Plots in the above lease deeds are in the same vicinity of the acquired land and the High Court had taken the same as comparable sales. The size of the plots covered in the exemplars are smaller. If there is a dissimilarity in regard to the area, it is open to the court to make proper deduction towards smallness of area. We find no error in the approach of the High Court taking Exts. A-7 to A-10 as comparable sales for fixation of market value."
9. Lastly, it has been vehemently argued that the deduction of 20% under the head of development charges is also on a higher side and the appellant is entitled to a higher compensation. The Hon'ble Apex Court in the case of Prahlad Dubey and others vs. State of Bihar, (2016) 13 SCC 394, has observed in the following manner:-
"6. It is an admitted fact that the sale instances which had been relied upon by the Reference Court were pertaining to sale of large area and therefore, deduction up to 30% was quite reasonable. We are, therefore, of the view that the deduction of 60% is not justifiable."
10. Similarly in the case of Om Prakash v. State of Haryana, (2016) 13 SCC 760, the following has been observed:-
"11. As far as the other two villages are concerned, namely, Harsaru and Garauli Khurd, looking into the facts and circumstances of the case, we are of the opinion that the cut of 40% imposed by the High Court is slightly on the higher side and therefore we reduce it to 30%. It is ordered accordingly."
11. The perusal of the above leaves no iota of doubt that the deduction of 20% towards development charges -( 7 )- FA No. 65/2002 is reasonable because according to the above judicial pronouncements, deduction of 30% has been held to be just and proper.
12. Taking into consideration the discussion made herein above, this Court is unable to persuade itself to accede to the contentions relating to the development charges and that the large tract of land will fetch similar value as that of smaller plots, more particularly when the factual findings recorded with respect to situation of land in question has not been challenged on the ground of factual inaccuracy. However, with respect to the deduction of 50% in the price fixed by the Court, due to the fact that, the land in question is not adjoining to the national highway rather the same is away from the National Highway, there is scope of interference in the facts and circumstances of the instant case. The Court below has fixed the price of the land to be Rs.4,00,000/- and thereafter, the price has been subjected to the deductions in the following manner:
- Rs.4,00,000/- per hectare.
- 50% deduction because the land is away
from the National Highway.
- Therefore, the cost remains Rs. 2,00,000/-
- 20% deduction towards development
charges.
- Therefore, the cost remains Rs. 1,60,000/-
- 50% deduction in cost as the illustrative
price fixed by Court is based on small plot whereas; the land in question is higher in size.
- Therefore, the final price of land arrived is Rs. 80,000/- per hectare.
13. The perusal of the above indicates that, the manner in which the Court has arrived to the final price, the same has resulted in double whammy to the appellant, because the final price has been arrived at after twice subjecting the original price to 50% deduction. In the -( 8 )- FA No. 65/2002 considered opinion of this Court, the deduction of 50% because of the reason that, the national highway is away from land in question is on a higher side. This Court is of the view that, in the fact of this case the land may not be adjoining the national highway but it is certainly close to the National Highway as there is only one stretch of land which is bisecting the national highway and the land in question but certainly the land is clearly visible from the national highway and in the event of any future expansion of national highway, the land would have became adjacent to the National Highway. Thus, taking into consideration these features of the land in question, the deduction of 50% by the Court below in this regard is reduced to 20%. and in view whereof, this Court determines the compensation as under:-
- Price of the land Rs.4,00,000/- per hectare.
- 20% deduction because the land is away from the National Highway. Therefore, the cost remains Rs.3,20,000/-.
- 20% deduction towards development charges.
Therefore, the cost remains Rs. 2,56,000/-.
- 50% deduction in cost as the illustrative price fixed by Court is based on small plot whereas the land in question is higher in size. Therefore, the final price of land arrived is Rs. 1,28,000/- per hectare.
14. Thus, the total amount of compensation for which the appellant was entitled comes to Rs.4,51,840/-. The amount of solatium at the rate of 30% is Rs. 1,35,552/- and if the same is added to the above amount, it comes to Rs.5,87,392/-. The appellants have already received Rs.1,27,126/- as compensation. By deducting this amount, the appellant is entitled for Rs.4,60,266/.
15. In the result, the appeal is partly allowed and the -( 9 )- FA No. 65/2002 award passed in favour of the appellants is modified in the following terms:
- The respondents are jointly and severally liable to pay a sum of Rs.4,60,266/- to the appellant.
- The respondents/defendants shall pay simple interest on the aforesaid amount at the rate of 9% per annum from the date of notification, i.e., 01.03.1995 till 29.02.1996 and, thereafter at the rate of 15% per annum till the date of realisation.
- The amount shall be paid by the respondents within a period of three months.
- It is made clear that if any amount has been deposited by the respondents in compliance of the award dated 1.5.2000 passed by the trial Court then it shall be adjusted in the aforesaid compensation amount so awarded by this Court.
- Both the parties shall bear their own costs of litigation throughout.
(S.K.Awasthi)
(Yog) Judge