Punjab-Haryana High Court
Ashok Kumar Son Of Sh. Charan Dass vs The State Of Haryana Through Land ... on 5 November, 2012
Author: K. Kannan
Bench: K. Kannan
RFA No.2695 of 2002 -1-
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT
CHANDIGARH
RFA No.2695 of 2002
Date of decision:05.11.2012
Ashok Kumar son of Sh. Charan Dass, resident of village Fatehpur, Tehsil
and District, Panchkula .......Appellant
versus
The State of Haryana through Land Acquisition Collector, SCO 61, Sector
8, Panchkula .....Respondent
2. RFA Nos. 2695, 2696, 3551, 3552 and 3582 of 2002
3. RFA Nos.2237 to 2241, 2315 to 2317, 2319 to 2342, 2344 to 2348, 2925, 2926, 3064, 3128 to 3135, 3137, 3139 to 3142, 3278, X. Obj. No.23-CI of 2008 in RFA No.3279 of 2005, 3280 3166, 3170 to 3177, 3179, 3180, 3146, 3148, 3149, 3153, 3154, 3156 to 3164 of 2005, 2439 of 2005
4. RFA Nos.146 to 149, 4119 of 2006
5. RFA Nos.2698 to 2701, 2857 to 2861, 3365, 3497, 3931 to 3938, 5233 to 5246, 1642 to 1663, 1848, 1849, 1944, 1955, 1956, 2227, 2228, 2856, 2867, 3000, 3887 to 3890, 3892 to 3895, 3897 to 3900, 3902 to 3926, 3928 to 3930, 3992, 4686 to 4688, 4690, 4691 4693 to 4698, 4700, 4701, 4704, 4705, 4708 to 4711, 4713, 4715 to 4717, 4719, 4721, 4722 and 5089 of 2009
6. RFA Nos.827 and 828 of 2010 Present: Mr. M.L. Sharma, Advocate for the appellants-landowners in RFA Nos. 5233 to 5246, 2315 to 2317, 2319 to 2342, 2344 to 2348, 2925, 2926, 3064, 3128 to 3135, 3137, 3139 to 3142 and 1642 to 1663, 1848, 1849, 1944 of 2009, 3000 of 2009.
Mr. Shailendra Jain, Advocate for the appellants in RFA Nos.2695, 2696, 3582 of 2002, 2698 to 2701, 2857 to 2861, 3365, 3497 of 2009, 2227, 2228, 2856 and 2867 of 2009 and 5089 of 2009.
Mr. Hawa Singh Hooda, Advocate General with Mr. Ashish Gupta, AAG, Haryana in RFA Nos. 3551 and 3552 of 2002, 3128 to 3135, 3137, 3139 to 3142, 3146, 3148, 3149, 3153, 3154, 3156 to 3164, 3166, 3170 to 3177, 3180 and 3278 to 3280 of 2005, 4686 to 4691, 4693 to 4698, 4700, 4701, 4704, 4705, 4708 to 4711, 4713, 4715 to 4717, 4719, 4721, 4722 and 5233 to 5246 of 2009.
Mr. M.K. Chouhan, Advocate for the appellants in RFA Nos.827 and 828 of 2010. Mr. Dharam Vir Sharma, Senior Advocate with RFA No.2695 of 2002 -2- Mr. Harit Sharma, Advocate and Ms. Shivani Sharma, Advocate for HUDA in RFA Nos.3931 to 3938, 3887 to 3890, 3892 to 3895, 3897 to 3900, 3902 to 3926, 3928 to 3930, 3992 of 2009. Mr. Deepak Balyan, Advocate for respondent-HUDA in RFA Nos.2315 to 2317, 2319 to 2342 of 2005.
Mr. Pradip Bhandari, Advocate and Mr. Jatinder Kumar Kamboj, Advocate for the appellants in RFA Nos.1955 and 1956 of 2009 and for respondent Nos.1 in RFA Nos.3888, 3901, 3907, 3910, 3918, 3919, 3922, 3931 of 2009.
CORAM:HON'BLE MR. JUSTICE K. KANNAN
1. Whether Reporters of local papers may be allowed to see the judgment ? Yes/No
2. To be referred to the Reporters or not ? Yes/No
3. Whether the judgment should be reported in the Digest? Yes/No
-.-
K. KANNAN J.
I. Subject matter of appeals: Judgments of Courts below rendered after remand
1. This batch of cases relates to determination of compensation by way of enhancement over compensation assessed by the reference court for acquisition of property under the Land Acquisition Act, some at the instance of the landowners, some by the State and some by HUDA. There is also Cross Objection No.23-CI of 2008 in RFA No.3280 of 2005 at the instance of the private owner. These cases have been brought for hearing after judgments recorded by the Reference Court through five different judgments. The judgments were rendered after the cases were remanded by this Court in the judgment in RFA No.1535 of 2002 titled State of Haryana Vs. Baldev Singh and others dated 08.11.2006. The remand became essential in view of the fact that earlier the awards had been passed by reference to a judgment in the award where the lead case was Gurdev Singh and others Vs. State of Haryana. The RFA No.2695 of 2002 -3- judgment in Gurdev Singh itself was a subject of remand by the Court through a judgment rendered in RFA No.1281 of 1999 by a judgment dated 27.10.2006. The parties had been granted liberty to adduce fresh evidence with reference to the potentiality of the lands and the valuation of properties of adjoining lands through various transactions of private sales.
II. Adjudication; only as regards valuation of land, trees and structures not reassessed
2. The cases have been decided with reference to acquisition of lands in Fatehpur, Maheshpur, Kundi and Railley. There are at least 10 villages which are stated as covered through the notifications as evidenced through the notifications issued namely, of (i) Maheshpur (ii) Kundi (iii) Railley (iv) Fatehpur (v) Railla (vi) Judian (vii) Devi Nagar (viii) Kharag Mangoli (ix) Budanpur and (x) Dhillon Dhamsu. We are principally concerned about the substantial extents of properties with reference to the first four villages mentioned above. The notifications issued under Section 4 for acquisition have been rendered on the following dates. The awards dated 30.04.2005 is with reference to acquisition of properties in Fatehpur and Maheshpur, the judgment dated 10.12.2008 is with reference to the acquisition of property in Kundi, the judgment dated 10.02.2009 is with reference to properties in Fatehpur & Railley, judgment dated 16.02.2009 is with reference to acquisition of property in Railley and the judgment dated 16.04.2002 is with reference to cases of acquisition for properties in Maheshpur. There is a common thread of reasoning adopted by the Reference Courts for determining the compensation @ ` 394/- per sq. yd. vide awards dated 10.12.2008, 10.02.2009 and 16.02.2009 qua the properties acquired through RFA No.2695 of 2002 -4- notification dated 29.01.1990 , @ ` 350/- per sq. yd. vide award dated 30.04.2005 qua the properties acquired through notification dated 26.04.1995 and @ 256/- per sq. yd. vide award dated 16.04.2002 qua the properties acquired through notification dated 26.04.1995. There are in some cases determination of compensation also with reference to structures and trees. No argument however was made with reference to them and therefore, this judgment will not make any modification with reference to their valuation.
III. Basis of valuation-Reliance on awards, auction notices and private sales
3. The arguments were advanced by the parties by references to private deeds of sale, auction notices of sales brought by HUDA subsequent to development of property and awards by various Courts from the year 1983 till very recently by the Reference Courts, High Courts and Supreme Court. Only in respect of villages namely Kharag Mangoli and Judian, the intial assessment made by the Reference Court for acquisition notices in the year 1983 and 1985 @ ` 250/- per sq. Yd has become final. In all other cases, the awards have been subject of appeals to the respective higher judicial tiers.
4. The decisions brought through various awards of the High Court and the Supreme Court obtain relevance to us only in a limited way of the reasoning contained in the judgments to the extent to which they have binding precedent value and general directions given for adopting appropriate norms for determination of compensation. The finality that has obtained for acquisition notices issued in the year 1983 and 1985 have themselves lost much of their significance by the only fact that we are concerned with notifications of the years 1990 and 1995 and it will RFA No.2695 of 2002 -5- not be safe to rely on transactions which are nearly a decade old. Even with reference to the auction sales which were conducted by HUDA though they could obtain secondary relevance for noticing the price trends and to know how HUDA has valued their own properties but be it noticed that the properties had been sold in different categories after full development and the counsel appearing for the land owners themselves are circumspect about reliance on these documents, except for the limited purpose of knowing the market trends. The auction notices obtain relevance to see the maximum prices that have been fetched, for competitive bidding is a true mirror to the prevailing market conditions. There is a certain danger to applying the valuation as found in the fully developed plots by HUDA, for the properties are sold in different categories such as shops, houses, commercial complexes etc. A commercial property is invariably seen as more valuable than residential property and properties housing shopping malls secure still higher prices than the other two categories. The determination of valuation will be made not to be dependent on the ultimate user of the property by the beneficiary or how the properties had been subsequently dealt with through auctions. The reference to a future user shall be brought for reckoning only to a limited purpose of examining how much of the acquired property was actually used for residential, commercial houses and how much of property had been set apart for common use for general purpose and for roads. They will also be relevant to examine the cost of development that had taken place and how they have affected the gradual increase in prices. A fairly elaborate preface is done to set a proper backdrop for consideration of valuation RFA No.2695 of 2002 -6- through the succeeding paragraphs.
IV. Properties of different villages are treated equally for valuation the raison d'etre
5. While examining the valuation of the properties in various villages, the assumption has been that the valuation in respect of villages would be the same. It is indeed not without justification, for the field map produced before the Court show the proximity of all these villages of one next to another. The village Kundi and Fatehpur adjoin each other and further north of Fatehpur is village Maheshpur. Still further is village Devi Nagar and further north is village Kharag Mangoli. All the above villages enumerated lie east of the Kalka-Shimla-Ambala Highway proceeding from south-west towards north-east. On the west of the road are villages Majri, Judian and Railley. Village Railley is immediately west of village Fatehpur.
A -Village Judian B- Village Majri C- Village Devi Nagar D- Village Maheshpur E- Village Fatehpur F- Village Kundi G- Village Railley RFA No.2695 of 2002 -7- I therefore, find that all the properties could be valued by reference to the same sets of transactions.
V. Valuation of property in Maheshpur, the principal basis
6. It is submitted by learned counsel appearing on behalf of the land owners that the sale transactions themselves were there only in the Maheshpur since it was adjoining Chandigarh-Kalka main highway and the transactions of sales during the relevant period have been only as regards the properties adjoining the highway. As regards other properties in Kundi or Railley, they did not fall on the main road itself and therefore, there had been no transactions of sales. It ought not to be taken as a matter against the land owners for the importance to Panchkula as a developing town was in a way fortuitous by its proximity to Chandigarh and the strict development norms that had been enforced with astuteness for keeping the city in its pristine beauty cast a favorable environment for the growth of two important towns. The Chandigarh city itself did not grow vertically and by the peculiar historical circumstances of the city being a capital for both Punjab and Haryana, the satellite townships for Chandigarh for the States of Punjab and Haryana obtained in Panchkula and Mohali respectively. The development started from the year 1971 and periodically acquisitions have been made by the Government agencies for Punjab Urban Development Authority (PUDA), which later became GMADA and HUDA for a regulated neighborhood extension scheme. There have been private colonies too but large area of development has been through Government acquisitions and a township planning through local enactments. The agricultural lands could not persist as such, particularly RFA No.2695 of 2002 -8- with all round development taking place and every land owner engaged in agriculture had a rightful expectation of an imminent development in respect of his property as well and the conversion of such property for non-agriculture use. It was not an issue of probability but it was with certitude that the land owners had been waiting for such conversions to take place for residential, commercial and industrial uses.
7. Since we are examining the acquisitions of property through notification commencing from 29.01.1990, it would be relevant to examine the documents relating to the said period. There are some sales of properties, which have been brought in adjoining villages of Kundi and Fatehpur as well but they all relate subsequent to Section 4 notification. I will, therefore, first tabulate the documents which are with reference to the transactions of sales before the notification and elicit separately the properties which have been sold subsequent to the notification:-
Ex. Date Area Consideration Rate per Village
sq. yd.
P9 1.1.1990 1 marla ` 40,000/- ` 1290/- Maheshpur
P10 16.3.1990 4 marlas ` 68,000/- ` 548/- Railley
P11 27.8.1990 10 marlas ` 80,000/- ` 320/- Ramgarh
P12 12.12.89 2 marlas `24,000/- ` 387/- Maheshpur
P13 12.12.89 2 2/3 marlas ` 30,000/- ` 375/- Maheshpur
P14 12.12.89 1 marla ` 12,000/- ` 387/- Maheshpur
P15 9.9.91 2 marlas ` 40,000/- ` 645/- Maheshpur
P16 12.12.89 2 2/3 marlas ` 29,000/- ` 362/- Maheshpur
P17 21.3.90 1 ½ marlas ` 43,000/- ` 955/- Maheshpur
P18 15.6.90 16 marlas ` 2,40,000/- ` 500/- Maheshpur
P19 16.3.90 4 marlas ` 68,000/- ` 548/- Maheshpur
P20 12.12.89 2 marlas ` 24,000/- ` 287/- Maheshpur
We have already seen that the Maheshpur adjoins the boundary of village Fatehpur and Fatehpur adjoins the boundary of village Kundi. Railley adjoins the boundary of village Maheshpur and that adjoins village Kundi. All these villages have gone for setting up Sectors 20 and RFA No.2695 of 2002 -9- 21 of Panchkula.
VI. Justification for averaging the prices
8. Of the transactions, which we have tabulated above, It can be noticed that only Ex.P9, P12, P13, P14, P16 and P20 are prior to the notification under Section 4. Again amongst the transactions, the high point in value is in Ex.P9, which is @ ` 1290/- per sq. yd. followed by Ex.P17, which is @ ` 955/- per sq. yd. and Ex.P8, which is at ` 806/- per sq. yd. There have been various judicial approaches in relation to what would go for the best exemplars. In recent judgment of the Supreme Court in Mehrawal Khewaji Trust v State of Punjab (2012) 5 SCC 432, the Supreme Court held that the Courts would be justified in taking the highest value the prices. In ONGC Vs. Rameshbhai Jivanbhai Patel (2008) 14 SCC 745, the Supreme Court was examining the situation of when owners were relying upon several transactions of sale having slight variation in prices. The Supreme Court said that the proper method would be to take the average price in relation to the properties provided however that the rates are within a narrow bandwidth. The Supreme Court cautioned however that the sales for examination must be within 4 to 5 years prior to the date of notification. The principle of averaging is undertaken only to ensure that spikes in prices that are registered through certain transactions are not to be applied uniformly as constituting the market price for all the properties to large extent of properties. In this case, there is no clear evidence as to what caused the sudden spike but it is not difficult to see that the rates have ranged between ` 380/- to ` 1290/- but by and large the concentration of prices have been close to ` 500/- to ` 600/- per sq. yd. The transactions RFA No.2695 of 2002 -10- of sales of smaller plots are not at all times ideal but the Courts may have no choice where large chunks of land have not been sold. The learned Advocate General arguing for the State would contend that all these properties are in the range of ` 125/- per square yard and at the maximum at ` 135/- per square yard except for sale under Ex.P18, which is for a larger extent of 16 marlas. If the highest price in Ex.P18 must be taken for a large extent of property as constituting the exemplar, there would not even be a need for making any deduction and the objection of the State that all sale transactions relating to small plots and hence could not be taken as the basis would have been met.
9. Learned counsel appearing for the land owners would point out to the fact that the prices of properties have really ruled high and the auction sales have been conducted over a period of time in the range of ` 1360/- to ` 1450/- per square yard. Exhibits which have been brought about with reference to these properties which are auctioned constitute the second string of documents relied on by the land owners to show that the properties, which were sold even prior to the date of notification was more than ` 500/- per sq. yd. PW3, Pala Ram gave evidence with reference to properties sold in Sector 12, 11 and 5 as shops at the rates of ` 5932/-, ` 5548/- and ` 4110/- per square yard. The auction notices have been for the years 1986 and 1988. PW7 has spoken about Exs.P6/13 which was actually the acquired land itself where an extent of 20 sq. yd. of land on 20.07.1989 had been sold at a rate of ` 842/- per sq. yd. Booth No.104 in Sector 12 near the acquired land is a small piece of property of 25.17 square yards sold at ` 6,13,000/-. Exs.P8/1 to Ex.P8/10 have been sales with reference to the RFA No.2695 of 2002 -11- property in Maheshpur in extents ranging between 30 to 80 sq. yards that have fetched prices in the range of ` 3750/- to ` 4000/- per sq. yard. I will be loath to make elaborate references to these transactions, for they have all been brought after full development of the property. In Lal Chand v Union of India (2009) 15 SCC 769 the Supreme Court has held that allotment rates adopted by development authorities like DDA cannot form the basis for award of compensation of acquisition of undeveloped lands for several reasons and sets out inter alia that since statutory authorities adopt different rates for plots in the same area with reference to economic capacity of the buyer, it would be difficult to ascertain the real market value. It may be unfair to make reliance on these documents to determine the price. This is only to say that in the manner of fixation of prices, I do not want to be on the wrong side by fixing any rate more than what these sales have resulted. A property that was fully developed and offered for sale in public auction ought to be taken as representative of the higher ruling price and the fixation of compensation now undertaken cannot exceed in any event beyond the said amount. This ought to be merely a reference point for us to examine whether the price determined is appropriate or not. We have noticed that there is one property which deals with the large extent Ex.P18, which is with reference to 16 marlas of land where the property has been sold at the rate of Rs.500/- per sq. yard.
10. The principle of determination of valuation when we take small plots of land as exemplars has come through several decisions and particularly in Prabhakar Raghunath Patil Vs. Maharashtra (2010) 13 SCC 107, the Supreme Court was examining the sales of transactions RFA No.2695 of 2002 -12- pertaining to small plots of land where large properties were acquired. The Court adopted a deduction of 33% as appropriate. In the decision of the Supreme Court in Chandra Shekhar and others Vs. Land Acquisition Officer (2012) 1 SCC 390, the Supreme Court was laying down certain important principles that deduction for development charges shall not be more than 67%. Development would mean (i) keeping aside sale/space for providing infrastructure and (ii) development expenditure. An additional extent of 7% would also be added in cases where additional charges are shown to have been incurred. The Court was, therefore, holding that normally 67% would be the maximum deduction for development charges that will be provided with the exception going up to 75% where additional expenditures have been shown to have been incurred. In this case the land owners have shown through Ex.P17 important data relating to the manner of user of the property acquired by HUDA. It seems from this that the user of the property has varied from the residential to commercial to community centres to public utility buildings. The roads and open space have accounted for 25.68% which means that nearly 75% of the property has been effectively put to use. It means that every bit of the remaining 75% has been offered for sale in some way or the other either as residential or commercial plot or for common utilities. Some open spaces as common areas could not have been put for sale. I am also prepared to see such public utility places like health centres, community centres, electric sub station etc are res extra commercium and therefore, they could not have fetched any amount. In the manner in which the user of the property has been shown with fairly a high utilization of the area RFA No.2695 of 2002 -13- acquired and considering also the fact that from a village to a town now as one of a tri-city, Panchkula has become posh with residential and non-residential accommodation, highest deduction at 67% would be unjustified but the deduction for development could be provided at 33 ½ %. The inclusion of the high value plots ought not to be a major issue since there have been quite a few transactions which I have fetched fairly a low value and it ought to therefore be seen as an equalising factor. If we take the average value of all these properties, it comes to ` 551/- per sq. yard, if we apply 33 ½ % cut for the development charge in the light of what the Supreme Court has held in Chandra Shekhar's case (supra), the value per square yard would be ` 366/-. I have not taken the highest price among the sale deeds and adopted the average valuation only because in the same town or city there shall be different categories of land such as residential, commercial and industrial plots with differential valuations and when the prices of small plots obtain different prices depending on the nature of user, the highest price among them shall not be appropriate. An average price of various plots through sales shall be most appropriate. This, in my view, would represent the proper and adequate market value for the properties.
VII. Summing up
11. The determination of price, which we have undertaken is with reference to the sales that were taken as relevant for the notification dated 19.01.1990. Some of the cases relate to the notification issued on 26.04.1995. The assessment has to be different to provide for an escalation by 12% having regard to the fact that the property is situate in an urban locality and considering its proximity to Chandigarh and RFA No.2695 of 2002 -14- itself being seen as one of the three emerging cities, I will provide the maximum escalation, which is contemplated under law per year. I will provide for 12% per year increase for the property acquired on 26.04.1995 and taking that to be ` 600/- per square yard.
12. Before I conclude I must state that both parties have relied on substantial body of case laws but I have not reproduced all of them, for there is a reaffirmation of the factors, which I have taken into consideration while assessing the compensation. I have referred only to such of those decisions, which I have gone into the decision making process for determination of compensation.
13. Summing up in the manner of determination of compensation, we have chosen the private sales as better examplars than the auction notices and the award passed in relation to acquisition of property in Maheshpur by the Supreme Court in the year 1983-85.
(i) Although it is possible to take the highest price as an exemplar for determining compensation, we have adopted the principle of averaging to even-out spikes in prices and different users and locations of the property in the same localicty commanding different prices.
(ii) We are considering the fact that the property valuations have been taken up with reference to lands of various sizes and more particularly of smallers plots we have provided for a deduction at 33 ½ %. This is taking note of the fact that there has been reasonably a high exploitation of very acquired land and what is lost towards roads and open space account only for 25.68%.
(iii) While after determining compensation for the aquisition notice of the year 1990, we have provided for an escalation @12% considering the fact that the property is situate in a developing city.
VIII. Disposition
14. The appeals filed by the land owners in RFA Nos.2695, 2696, RFA No.2695 of 2002 -15- 3582 of 2002, 2237 to 2241, 2315 to 2317, 2319 to 2342, 2344 to 2348, 2439, 2925, 2926, 3064 of 2005, 146 to 149 and 4119 of 2006, 827 and 828 of 2010 and X Obj. No.23-CI of 2008 are allowed to the above extent with all the statutory benefits provided under the Land Acquisition Act.
15. The appeals filed by the land owners in RFA Nos. 1642 to 1663, 1848, 1849, 1944, 1955, 1956, 2227, 2228, 2698 to 2701, 2856 to 2861, 2867, 3000, 3365, 3497 and 5089 of 2009 are dismissed.
16. The appeals filed by the State in RFA Nos.3551, 3552 of 2002, 3128 to 3135, 3137, 3139 to 3142, 3146, 3148, 3149, 3153, 3154, 3156 to 3164, 3166, 3170 to 3177, 3179, 3180 and 3278 to 3280 of 2005 are dismissed and the appeals filed in RFA Nos. 4686 to 4688, 4690 to 4691, 4693 to 4698, 4700 to 4701, 4704, 4705, 4708 to 4711, 4713, 4715 to 4717, 4719, 4721, 4722 and 5233 to 5246 of 2009 are allowed.
17. The appeals filed by the HUDA in RFA Nos.3887 to 3890, 3892 to 3895, 3897 to 3900, 3902 to 3926, 3928 to 3938 and 3992 of 2009 are also allowed.
(K.KANNAN) JUDGE November 05, 2012 Pankaj*