Madhya Pradesh High Court
Decd.Moolchand Through ... vs Chief Executive Officer Indore ... on 5 July, 2018
1
HIGH COURT OF MADHYA PRADESH
BENCH AT INDORE
(SB: HON. SHRI JUSTICE PRAKASH SHRIVASTAVA)
FA No.384/1998
Indore Development Authority, Indore
Vs.
Ramesh
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Shri S.I. Ansari on behalf of Ms. Sudha Shrivastava, learned for the
appellant.
Shri U.K. Choukse, learned counsel for the respondent.
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FA No.323/1999
Ramchandra Through Smt. Gyarsibai
Vs.
State of M.P. & Another
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Shri O.P. Arya, learned for the appellant.
Shri Y.K. Mittal, learned counsel for the respondent No.2.
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FA No.868/2000
Indore Development Authority, Indore
Vs.
Rajesh
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Shri Harish Joshi, learned for the appellant.
Shri O.P. Arya, learned counsel for the respondent.
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FA No.879/2000
Indore Development Authority, Indore
Vs.
Banshilal
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Shri Harish Joshi, learned for the appellant.
Shri O.P. Arya, learned counsel for the respondent.
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FA No.54/2001
Bansilal
Vs.
State of M.P. and Another
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Shri O.P. Arya, learned for the appellant.
Shri Y.K. Mittal, learned counsel for the respondent No.2.
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2
FA No.253/2001
Rajesh
Vs.
State of M.P. and Another
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Shri O.P. Arya, learned for the appellant.
Shri Y.K. Mittal, learned counsel for the respondent No.2.
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FA No.300/2001
Indore Development Authority, Indore
Vs.
Jamnalal and others
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Shri Yogesh Mittal, learned for the appellant.
Ms. Anita Gaur, learned counsel for the respondents.
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FA No.354/2001
Indore Development Authority, Indore
Vs.
Gani
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Shri Yogesh Mittal, learned for the appellant.
Shri Atul Kumar Gupta, learned counsel for the respondent.
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FA No.259/2002
Indore Development Authority, Indore
Vs.
Smt. Padma Chaturvedi
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Shri Yogesh Mittal, learned for the appellant.
Shri Ghanshyam Agrawal, learned counsel for the respondent.
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FA No.12/2003
Indore Development Authority, Indore
Vs.
Laxminarayan and Anr.
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Shri S.I. Ansari on behalf of Ms. Sudha Shrivastava, learned for the
appellant.
Shri O.P. Arya, learned counsel for the respondent.
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FA No.634/2003
Laxminarayan
Vs.
State of M.P. and Another
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3
Shri O.P. Arya, learned for the appellant.
Shri Y.K. Mittal, learned counsel for the respondent No.2.
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FA No.588/2004
Chief Executive Officer, Indore Development Authority, Indore
Vs.
M/s Kalpkamdhenu Colony
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Shri Yogesh Mittal, learned for the appellant.
Shri A.S. Garg, learned senior counsel with Shri O.P. Arya, learned
counsel for the respondent.
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FA No.46/2005
M/s Kalpkamdhenu Colony
Vs.
State of M.P. & Another
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Shri A.S. Garg, learned senior counsel with Shri O.P. Arya, learned
counsel for the appellant.
Shri Yogesh Mittal, learned for the respondent.
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FA No.618/2011
Indore Development Authority, Indore
Vs.
Late Moolchand through Smt. Lilabai and Anr.
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None present for the appellant.
Shri O.P. Arya, learned counsel for the respondent.
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FA No.694/2011
Late Moolchand through Smt. Lilabai and Anr.
Vs.
Indore Development Authority and Anr.
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Shri O.P. Arya, learned for the appellants.
None present for the respondents.
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Whether approved for reporting :
JUDGMENT
(Delivered on 05/07/2018 ) 1/ This judgment will govern the disposal of FA Nos. 384/1998, 323/1999, 868/2000, 879/2000, 54/2001, 253/2001, 300/2001, 354/2001, 259/2002, 12/2003, 634/2003, 588/2004, 4 46/2005, 618/2011 & 694/2011.
2/ FA Nos.384/1998, 868/2000, 879/200, 300/2001, 354/2001, 259/2002, 12/2003, 588/2004 & 618/2011 are at the instance of the IDA, whereas FA Nos.323/1999, 54/2001, 253/2001, 634/2003, 46/2005 & 694/2011 are the cross appeals by the claimants. Cross objections have been filed in FA No. 354/01 & FA No. 300/01.
3/ In FA No.588/2004, Shri A.S. Garg, learned counsel for the respondent/claimant has raised a preliminary objection that the appeal has been filed by the CEO of the IDA and not by the IDA and CEO is not a juristic person, hence in view of the judgment of the Supreme Court in the matter of Chief Conservator of Forests, Govt of A.P. Vs. Collector and others reported in 2003 (3) SCC 472 (Para 16), the appeal is not maintainable.
4/ Having heard on this preliminary objection, it is noticed that the appeal in fact has been filed by the IDA through CEO who is the OIC and an officer of the IDA. This objection about maintainability has been raised undisputedly for the first time at the stage of final argument. The judgment of the Supreme Court in the matter of Chief Conservator of Forests (supra) relied upon by learned counsel for the landlord is in different fact situation where the proceedings were initiated by the individual officer of the government in the name of the post he was holding hence, he was held to be a non juristic person and the writ petition was held to be not maintainable since the State Government was found to be a necessary party. The present appeal stands on altogether different footing. That apart, there are number of connected appeals and there is no such objection in the connected appeals. In view of this, objection is held to be unsustainable and is hereby rejected.
55/ With consent of learned counsel for the parties FA No. 259/02 and FA No. 588/04 are treated as lead appeals and the facts are noted from FA No. 259/02.
6/ Short facts are that these appeals relate to acquisition of land for scheme No.94 for the purpose of construction of ring road. The notification under Section 4(1) of the Land Acquisition Act, 1894 was issued on 5/6/1987. The declaration under Section 6 of the Act was published in the Gazette on 5/8/1988 and the possession of the land was taken. The common award dated 20/3/1991 was passed by the Land Acquisition Officer awarding compensation @ Rs.75,000/- per hectare for barren land, Rs.90,000/- per hectare for un-irrigated land and Rs.1,25,000/- per hectare for irrigated land. 7/ In FA No.259/2002, reference court has enhanced the compensation amount to Rs. 9,03,009/- per acre whereas in FA No.588/2004 (cross appeal No.46/2005) the reference Court has enhanced the compensation amount to Rs.11,53,846/- per acre. In difference appeals, reference court has awarded different amount of compensation though the land acquired is situated in the same village and broadly the nature of land and surrounding circumstances are also same. The compensation awarded by the reference court for the same area ranges from Rs.1,70,000/- per hectare (Rs.68,826/- per acre) (FA No. 253/01) to Rs. 11,53,846/- per acre (FA No. 588/04). 8/ Learned counsel for appellant/Indore Development Authority submits that the reference court has committed an error in awarding compensation amount at such a high rate in FA No. 259/02. He submits that since the landlady has not been examined, therefore it is a case of no evidence and that the reference court has committed an error in relying upon the sale deeds Ex.P-9 & P-10, whereas they are in respect of diverted 6 land ignoring that land acquired is agricultural land. He has further submitted that Division Bench of this Court in FA No. 414/98 in the case of Indore Development Authority Vs. Siddhanath relating to acquisition for village Pipliyahana has awarded compensation @ Rs 5 lakhs per hectare and for village Musakhedi in the case of Jairam Vs. State of MP in FA No. 127/99 @ Rs. 2.3 lakhs per acre and that the deductions have not been properly made.
9/ In FA No. 588/2004, learned counsel for the IDA has adopted the same arguments which are advanced in FA No. 259/2002 by raising the additional argument that the acquired land is not a diverted land by submitting that there is no diversion order on record and Ex.P-9 is only a letter sent by the Joint Director, Town and Country Planning to the land owner in respect of the land use and in Ex.P/10 the land is shown to be situated in illegal colony.
10/ As against this learned counsel for respondent submits that the amount which has been awarded by the reference court is on lower side and that averaging of sale deed is not permissible and the highest exemplar should have been taken into account and the land which is acquired has better location than the land contained in sale deeds Ex. P-9 & P-10. He has further submitted that sale of land in Ex.P-9 & P-10 was on the basis of sale agreement which was prior to their diversion therefore, the price contained therein is in respect of undiverted land.
11/ So far as the objection in FA No. 259/02 of the appellant that Smt. Padma Chaturvedi the owner whose land has been acquired, has not been examined is concerned, the record reflects that reference was filed through power of attorney and Heeralal was appointed as attorney holder and in his statement 7 before the Reference court he has proved power of attorney and the reference court after duly examining his statement has rightly found that there is no effective cross-examination in respect of power of attorney.
12/ That apart, a number of connected references have been decided by the reference court wherein the owners of land themselves were present, hence the claim of the land owners cannot be defeated on such a technical objection which is accordingly rejected.
13/ Having heard the learned counsel for parties and on perusal of the record it is noticed that the reference court by the award dated 27/2/2002 which is under challenge in FA No. 259/02 has enhanced the compensation amount from Rs. 75,000/- per hectare to Rs. 9,0300,9/- per acre and on the basis of some evidence in FA No. 588/04 it has enhanced the amount to Rs. 11,53,846/- per acre and has awarded the solatium interest etc. on the said amount as per statutory provisions. 14/ In FA No. 259/02, the reference court has found that the acquired land is situated in Kanadia Road and colonies exist on both its side. It has rejected the sale deeds Ex. P-6 to P-8 on the ground that these sale deeds relate to the plots in the developed colonies sold at the rate of per square feet of land. The reference court has relied upon the sale deeds Ex. P-9 & P-10 (these sale deeds are Ex.P-19 and Ex. P-20 in FA No. 588/04) and by averaging the sale price mentioned therein it has arrived at the compensation amount and has accordingly enhanced the amount.
15/ It is settled position in law that while arriving at just and fair compensation, the market value of the acquired land is to be determined considering the existing geographical situation of land, existing use of land, already available advantages like 8 proximity to national or state highway or road and/or developed area and market value of other land situated in the same locality. It is also settled that market value is to be determined with reference to open market sale of the comparable land in neighborhood by a willing seller to a willing buyer on or before date of preliminary notification. The factors which merit consideration as comparable sale are that the exemplar sale should be within reasonable time of date of issuance of notification under section 4(i), it should be bonafide transaction, it should be of land acquired or of land adjacent to land acquired and it should possess similar advantages. 16/ When there are several exemplars with reference to the similar land, then as a general rule, highest of the exemplar has to be considered and accepted if it represents bona-fide transaction. Where sale deeds pertaining to different transaction are relied upon, the transaction representing the highest value is required to be preferred as against others unless there are strong circumstances for taking a different course. In a series of judgments, now it has been settled that the averaging of various sale deeds for fixing the fair compensation is not the proper course of action. (See Meharwal Khewaji Trust (Registered), Faridkot and others Vs. State of Punjab and others (2012) 5 SCC 432, Anjani Molu Desai Vs. State of Goa and others (2010)13 SCC 710, Bakhtavarsingh Vs. Union of India (1995)2 SCC 495, Sitabai and Others Vs. State of MP and others 2010(1) MANISHA 33(MP), judgment of this Court dated 30/1/2009 in FA No, 542/2002 Kailash Chandra Vs. Executive Engineer and another and the judgment of this court dated 12/1/2015 in FA No.901/2008 Hiralal (dead) through L.Rs Vs. State of MP and connected appeals.
917/ It is also settled that for determining the market value of larger area, the sale deed of smaller area can also be considered if there is no other cogent material available, but while relying on the sale deed for a smaller area, a suitable percentage is to be deducted for determining the market value of the larger area. See Ahsanul Hoda Vs. State of Bihar AIR 2013 SC 3463, Ravinder Narain and another Vs. Union of India (2003)4 SCC 481 and Aatmasingh (Dead) through L.Rs Vs. State of Haryana AIR 2008 SC 709, the judgment of this Court dated 9/11/2001 passed in FA No.360/2000 in the matter of Laxminarayan deceased through L.Rs and others Vs. Union of India as also the judgment dated 19th December, 2014 in FA No.497/2012 in the matter of Subhash Vs. State of MP and another and connected bunch of appeals. 18/ The deduction at a certain percentage rate is also required to be made towards the development cost. The deduction towards development depends upon the nature and location of acquired land and deduction includes components of of land required to be set apart under the building rules for roads, sewage, electricity, parks and other common facilities and also deduction towards development charges like laying of roads, construction of sewerage etc. Generally deduction of 1/3 of market value towards development cost is approved.(See: (2015) 2 SCC 262 in the matter of Major General Kapil Mehra and others Vs. Union of India and another). 19/ Having examined the present case in the aforesaid preposition of law, it is noticed that all appeals in the present case relate to village Khajarana and the land acquired is almost adjacent in all the appeals because the land has been acquired for the purpose of construction of Ring road. 20/ It is also worth noting that Village Khajarana is within the 10 City limits of Indore.
21/ The land owner in lead appeal FA No. 259/02 had produced 5 sale deeds. Sale deed Ex. P-6 dated 18/2/1988 is for Mahavir Nagar at Indore by which plot admeasuring 50 x 34 =1700 sq.feet was sold for Rs. 48,000/- on 18/2/1988. Ex.P-7 is the sale deed for Gulmohar Colony at Khajarana dated 21/5/1986 whereby plot admeasuring 90x60 feet = 5400 sq.ft was sold for Rs. 3,13,200/-. Ex.P-8 is the sale deed dated 15 th October 1987 whereby plot at Telephone Nagar Extension Colony Indore admeasuring 32x50 = 1500 sq.ft. was sold for Rs. 1,32,000/-. These sale deeds have rightly been rejected by the reference court because they relate to developed land and the sale was on the per square feet basis whereas the acquired land is an agricultural land.
22/ The relevant sale deeds produced by the land owner in the case are Ex. P-9 dated 12/3/1984 whereby 0.23 Acres of agricultural land in village Khajarana has been sold for Rs. 1,50,000/- (@ Rs. 6,47,511/- per acre). Ex. P-10 is the sale deed dated 9/5/1985 whereby 0.26 acres of agricultural land in village Khajarana has been sold for consideration of Rs. 3,00,000/- ( @ Rs. 11,53,846 per acre). In FA No. 259/02 reference court by averaging these two sale deeds has awarded the compensation @ Rs. 9,03,009/-, whereas in FA No. 588/04, the reference court has awarded compensation @ Rs. 11,53,846/- on the basis of sale deed dated 9/5/1985, Ex.P-10. But no proper deductions under different heads have been made by the reference court while calculating the compensation amount. Both the sale deeds Ex. P-9 & P-10 are in respect of same village and in respect of similarly situated land and they also relate to the period prior to issuance of Section 4 notification.
1123/ In view of the settled position in law as noted earlier, the compensation is required to be determined on the basis of best exemplar i.e. transaction representing the highest value as against the others unless strong circumstances exist for rejecting it. As compared to sale deed Ex.P-9, the sale deed Ex. P-10 which is later in point of time and for a slightly bigger area sold at a higher price, is the sale deed of highest value which is required to form the basis and for determining the circumstances if no strong reason for rejecting it exist. 24/ Learned counsel for IDA has objected that sale deed Ex. P-10 is in respect of diverted land so thus the sale deed Ex. P-
9. But a perusal of the sale deed Ex. P-10 reveals that land sold is the agricultural land and sale was on the basis of sale agreement dated 8/10/1984 which was executed prior to diversion and diversion was done by proposed purchaser subsequently and sale price has been paid on the basis of agreement which was for undiverted agricultural land. Hence objection of the IDA in this regard cannot be sustained. 25/ That apart land owner Heeralal PW-1 has stated that acquired land is nearer to road whereas the land sold vide Ex.P-10 is half of kilometer away from the road. 26/ In the aforesaid circumstances, I am of the opinion that the the compensation is required to be determined on the basis of price reflected in the sale deed Ex. P-10.
27/ Ex. P-10 was executed on 9/5/1985 whereas Section 4 notification has been issued on 5/6/1987 therefore, the next issue is adding the price increase of land from the date of sale deed Ex. P-10 till the date of Section 4 notification. 28/ The reference court has recorded contradictory finding in respect of price-rise in the area concerned, during the relevant period. At one place the reference court has found that in 12 Indore city during the relevant time price of land had not increased whereas at the other place, the reference court has found that it was normal to increase the price. Since the sale and acquisition was in the year 1985-87, therefore, the price- rise at that time was not much.
29/ Having regard to the circumstances of the case, I am of the opinion that only marginal increase to be made in the price of land reflected in the sale deed Ex. P-10 for adjusting the increase in price and arriving at the approximate market value of the land on the date of section 4 notification. 30/ The land acquired is a large piece of land. It is pointed out by learned counsel for IDA that total 240.042 hectare of private land was acquired from 6 villages out of which 78.854 hectare was acquired from Khajarana village itself for construction of Ring Road, whereas the land which was subject matter of sale in Ex. P-10 was only 0.26 hectare, therefore, in view of the judgments noted above, suitable deduction is required to be made to arrive at a fair market value.
31/ As per the judgments of the Supreme court noted above, the deduction is required to be made towards the development charges. But deduction under this head is to be made having regard to the fact that in the present case the acquisition of land is not for any residential or industrial purpose but it is for construction of road.
32/ Having regard to the aforesaid factors and taking into account the sale deed Ex. P-10, I am of the opinion that just and fair compensation on the basis of value of land on the date of Section 4(i) notification is Rs. 7 lacs per acre and land owners are entitled for compensation at this rate. 33/ Only in FA No.46/2005 additional question has been raised that the acquired land is the developed land. No 13 development permission has been placed on record. The reference Court has found the acquired land to be similar to the land in the sale deed dated 9/5/1985 Ex.P/20 but the reference Court has not examined any material to come to conclusion that the land acquired is developed land. No building permission is on record. The documents Ex.P/9 is a communication dated 11/6/2001 sent by the Joint Director, Town and Country Planning to the land owner mentioning that as per development plan Indore 1991, the land use is commercial-general. This communication is subsequent to Section 4 notification and does not mention that the acquired land was developed or undeveloped. The position of the land in Ex.P/20 was the same. Similarly, Ex.P.8 is the certificate relating to the Ceiling Act dated 21/8/2000 which is also subsequent to the Section 4 notification. So far as the oral evidence is concerned, nothing material has been pointed out by the counsel for the parties to show that the land was a developed land. Hence acquired land in question is held to be undeveloped land.
34/ In some of appeals filed by IDA challenging the amount awarded by the reference court, no cross objection or cross appeal has been filed by respondent/land owners yet placing reliance upon the provision of Order 41 Rule 22 CPC as also the judgment of the Supreme court in the matter of Ravinder Kumar Sharma Vs. State of Assam and others reported in AIR 1999 SC 3571 and of this Court in the matter of Tej Kumar Jain Vs. Purshottam and another reported in AIR 1981 MP 55 it has been contended that even without filing the cross-objection or appeal before this court adverse finding can be challenged. Such a preposition is not in dispute. But these judgments make it clear that adverse finding can be questioned without filing cross-objection for the purpose of sustaining the 14 decree.
35/ In FA No. 384/1998 the respondent land owner without filing the appeal or cross-objection, on the basis of provision contained in Order 41 Rule 33 CPC and Section 25 of Land Acquisition Act as also judgments of the Supreme court in the matter of Union of India Vs. Bal Ram and another reported in (2010) 5 SCC 747 and in the matter of Mahant Dhangir and another Vs. Shri Madan Mohan and others reported in AIR 1988 SC 54 has sought enhancement of compensation amount. Since the said land owner has not preferred any appeal or cross objection before this court and at the stage of final hearing without there being any appeal or cross-objection he has claimed enhancing the compensation amount therefore such a prayer cannot be allowed and hereby rejected. 36/ In view of above analysis the appeals as also the cross- objections and cross-appeals are disposed off. The compensation be accordingly computed on the basis of the sale price @ Rs. 7 lacs per acre as arrived at by this court and adding the statutory benefits as per the order of the reference court.
37/ Signed copy of this judgment is kept in the file of FA No.259/2002 and a copy whereof is placed in the record of connected First Appeals.
No costs.
C.C. As per rules.
(Prakash Shrivastava) JUDGE BDJ Bhuneshwar Datt 2018.07.09 19:07:46 -07'00'