Allahabad High Court
State Of U.P. And Another vs Mohd. Hussain Atahar Khan on 18 October, 2019
Equivalent citations: AIRONLINE 2019 ALL 1803
Author: Vivek Kumar Birla
Bench: Vivek Kumar Birla
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved Court No. 30 Case :- FIRST APPEAL No. - 264 of 2013 Appellant :- State Of U.P. And Another Respondent :- Mohd. Hussain Atahar Khan Counsel for Appellant :- R.K. Chaube,S.C. Counsel for Respondent :- S.R. Verma,D.K. Srivastava,H.N. Sharma Hon'ble Vivek Kumar Birla, J.
Heard Sri P.P. Chaudhary, learned Standing Counsel appearing for the appellants-State of UP.
No one appeared on behalf of the respondent at the time of hearing. In spite of repeated orders, no paper book has been filed by the respondent. Therefore, I proceeded to hear the appeal.
Present appeal has been filed challenging the judgement and decree dated 2.1.2013 passed by the Additional District Judge, Court No. 08, Allahabad in Land Acquisition Reference No. 128 of 1991.
Necessary facts of the case are that in exercise of power vested in it under Section 4(1) of the Land Acquisition Act, 1894 (hereinafter referred to as the 'Act'), the Government of Uttar Pradesh issued a notification dated 22.3.1986 for acquisition of 15 biswas land belonging to the appellant situated in Mauza-Dariyabad, Pargana and Tehsil Chail, District Allahabad. The declaration issued under Section 6 was published on 26.4.1987. By an award dated 13.7.1988, the Special Land Acquisition Officer (hereinafter referred to as 'SLAO') declared that the appellant shall be entitled for compensation of Rs. 81,314.80 paise with 30 per cent solatium.
Not being satisfied, the respondent preferred an objection under Section 18 of the Act. After considering the evidence available on record, the reference court came to the conclusion that the amount of Rs. 500/- per sq. yard was the market value of the property in question and therefore, compensation was granted for the acquired land at the above rate.
The State of UP filed an appeal being First Appeal No. 682 of 2002 (State of UP vs. Mohd. Husain Athar Khan) before this Court challenging the judgement and decree dated 3.10.1997 passed by the VIIth Additional District Judge in L.A.R. No. 128 of 1991.
The aforesaid first appeal no. 682 of 2002 was allowed by Hon'ble Division Bench of this Court vide judgement and order dated 17.3.2004. While deciding the appeal, the Hon'ble Division Bench, considering the law laid down in a landmark judgement of the Hon'ble Apex Court in the case of Chimanlal Hargovinddass vs. Special Land Acquisition Officer, Poona and others, AIR 1988 SC 1652, found that none of the factors as laid down in the case of Chimanlal (supra) were specifically taken into account while determining the market value of the land. It was observed that the reference court has not observed anything with regard to the potential value of the land in question and hence the compensation at the rate of Rs. 500/- per sq. yards awarded by the reference court was not just and proper. It was noticed that admitted fact is that the land in question was acquired for construction of a Nala and not for construction of any building or colony. While allowing the appeal, award passed by the SLAO was restored and excess amount, if any, paid to the respondent was directed to be adjusted and to be refunded by the claimant.
Not being satisfied, the claimant filed a Civil Appeal No. 999 of 2005 (Mohammad Hussain Athar Khan vs. State of UP and another) before the Hon'ble Apex Court challenging the judgement of Hon'ble Division Bench of this Court. After discussion it was found by the Hon'ble Apex Court that the High Court was not justified in setting aside the order of the reference court in its entirety only on the ground that the circle rate could not be made basis for fixing market value of the acquired land. The judgement of Hon'ble Division Bench of this Court was set aside by Hon'ble Apex Court and the matter was remanded to the reference court for re-determination of market value of the acquired land. Pursuant to the aforesaid judgement of Hon'ble Apex Court, the reference court decided the reference afresh and this time compensation was awarded at the rate of Rs. 400/- per sq. yards along with consequential benefits vide judgement and order dated 2.1.2013. This judgment and decree of the reference court is under challenge by the State of UP.
Submission of learned Standing Counsel is that the reference court has illegally and arbitrarily enhanced the market value of the acquired land against the settled principle of law and that the SLAO has awarded just and adequate compensation as per provisions of the Act. It was submitted that at the time of publication of Section 4 of the Act the disputed land was undeveloped land and has no fertility and there was no facility of irrigation and no bus station, police station, industrial centre and no market facility was near the acquired land and the land in question was at a great distance from the residential place and there was no facility of any transport/traffic still the court below calculated enhanced market value of the acquired land. It is next submitted that the land in question was not plain land but it was uneven land and heavy amount was spent in the development of the acquired land as such the government is liable to get the deduction of at least 40% in respect of the development of the acquired land, which was not considered by the reference court at the time of passing of the impugned judgement and decree. It is also submitted that the land in question was acquired for the purpose of permanent construction of 'Chachar Nala' Dariyabad, Allahabad and the land at the time of acquisition was in a very bad shape and has no potentiality, fertility etc. and the SLAO (Irrigation) Allahabad has awarded the just and adequate compensation after considering the market value of the acquired land. It is submitted that the reference court has awarded the compensation on the basis of per sq. yard, which is contrary to law as laid down by the Hon'ble Apex Court as it has been held that in case of agricultural land, the compensation is not to be awarded on the basis of per sq. meter or per sq. yard. It is further submitted that the SLAO (Irrigation) Allahabad has given award on the basis of the exemplar sale deed shown as serial no. 18 of Schedule II after considering 57 sale deeds, which have been executed within a period of three years from the date of publication of notification of Section 4(1) of the Act. It is further submitted that the acquired land is situated on the bank of River Yamuna and is, in fact, most of the time submerged in water, and the claimant-respondent in his statement has admitted that on the acquired land only one crop of mustard is sown yearly and the acquired land was used as agricultural land and there was no possibility of the acquired land to be used as residential land in future and the acquired land was situated in the flood affected area of the River Yamuna and has no beneficial use. It is lastly submitted that law is settled that while awarding the compensation amount, every aspect of the acquired land has to be kept in mind i.e. fertility, utility, nature of the land, situation plus and minus factor etc. by the court below.
Crux of the arguments of learned Standing Counsel is that the land in question was acquired for the purpose of construction of Nala and not for construction of any building or colony. The land, most of the time is submerged in River Yamuna and there is nothing on record to indicate potential value of the land in question. He submits that the award at the rate of Rs. 400/- per sq. yards is neither here nor there. The claimant (PW 1) has made a vague statement that the rate of land is Rs. 300-400-500 per sq. yards. The exemplars placed by the State were not at all considered.
I have considered the submissions of learned Standing Counsel and perused the record.
In the present case, it has to be seen as to whether the amount awarded by the reference court is in accordance with the law and whether it is excessive or not?
Before proceeding further, it would be relevant to note the broad principles laid down in the case of Chimanlal (supra), which are constantly being followed by the Courts for the purpose of determination of market value of the land/compensation.
In the case of Union of India vs. Dyagala Devamma and others, (2018) 11 SCC 485, 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 factors 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."
It is not in dispute that the acquired land is a part of Arazi Nos. 228 and 263. It is also not in dispute that Arazi No. 228 is a very large plot and no road exists thereon as mentioned in the internal page 9 of the judgement of reference court and the road situated is far-off. A Nala is existing on eastern side of the plot, which goes to River Yamuna. On the southern side River Yamuna is existing and by the side of River Yamuna apart from other plots Arazi No. 263, which was also acquired, also exists. Although situation of the plot is admitted to the claimant Mohd. Hussain Atahar Khan (PW 1) and it is admitted to him that the land in question is adjoining Chahar Nala, Dariyabad and although he has claimed that at a nearby place there exists hospital, schools, colleges etc., however, it is admitted to PW 1 that earlier there was abadi land on which now a 'Bandha' (a barrier to prevent flood water coming to the cities/abadi area, or say, prevent water from spreading) has been developed. He has clearly admitted that on the rise of River Yamuna, the acquired land is flooded with water. He admitted that Arazi no. 228 is measuring about 54 bighas. He has only asserted that the land in question of this arazi no. 228 is being sold at the rate of 600 per sq. yards. D.W. no. 1-Ram Akshar, Amin in the revenue department has categorically stated that the land in question is low lying land and is situated in flood affected area, which covers Chachar Nala also and is not cultivable land. He stated that the land in question has no utility or potential whatsoever. The circle rate paper no. 80 and 29Ga of the year 1986-87 was considered by the reference court, according to which serial no. 119 for Dariyabad Mohalla the minimum rate prescribed was Rs. 200 per sq. meter and maximum Rs. 300 per sq. meter. The position of the land, as emerges even as per his own allegation (of the claimant himself), only one crop yearly (of mustard) is being raised and land was usually submerged in flood water and was, in fact, not adjoining to any developed land even though there may exist buildings, roads, crossings etc. at some nearby places. That a Nala is adjoining, is an admitted fact and a finding has also been recorded by the reference court in this regard. A finding has also been recorded by the reference court that the land is low lying land and is covered by flood water and was not a developed land and it has no potential.
It is pertinent to note that on internal page 9 of reference court's judgement, the reference court has recorded a finding that it is worth belief that the land in question is adjoining the 'Chachar Nala' and is a low lying land and is submerged with flood waters and that according to claimant only one crop was raised yearly. It has also recorded a finding that the land in question was an undeveloped piece of land and therefore, exemplar of housing scheme and a small piece of area cannot be believed and there is no evidence on record that the acquired land is developed land. It has further observed that the acquired land is away from the road, hospital and crossing. It is, therefore, not understandable as to how, even after recording a categorical finding of this fact, the reference court has enhanced the compensation without there being any basis and has awarded compensation at the rate of Rs. 400 per sq. yards? Even the circle rate of the area is from 200 per sq. meter to Rs. 300 per sq. meter. Record reflects that it is not in dispute that: (I) the land was acquired for construction of widening of Chachar Nala and not for construction of any building or colony; (2) the land was low lying land adjoining Chachar Nala; and (3) land was usually submerged in water and thus, has no building potentiality etc. Therefore, it can not be disputed that the circle rate alone cannot form a basis for determining the market value.
In such view of the matter, the compensation awarded at the rate of Rs. 400 per sq. yards is neither here nor there and not supported by any evidence and in fact, is contrary to the evidence on record and is also not as per the law laid down by the Hon'ble Apex Court in Chimanlal (supra).
It is also not in dispute that it is admitted to the claimant himself who appeared as PW 1 that plot no. 228 was a large area, and in that Arazi itself plots are not sold at a common rate and there is a different market value for different part, meaning thereby he has accepted that the market value of parts of arazi no. 228, ignoring the distance from the acquired land, is as per their location. In the present case, the land is a low lying land in catchment area of River Yamuna and is covered with flood waters and is adjoining to Chachar Nala, which was acquired for the purpose of widening of Chachar Nala only.
Under such circumstances, the land in question has no potentiality or utility except for the purposes for which it was acquired i.e. widening of Chachar Nala and market value is only orally asserted by the claimant and accepted by the reference court without there being any cogent evidence on record.
There is one exemplar sale deed dated 1.5.1984 paper no. 53Ga is on record. By this sale deed a piece of land measuring 33.66 sq. meter (40.287 sq. yard) was sold for Rs. 1200/- only, i.e., at the rate of Rs. 35.65 paise per sq. meter or Rs. 29.80 paise, say, Rs. 30/- per sq. yard. This land is also part of Arazi No. 228 being Arazi No. 228/2/2. The said exemplar sale deed was rejected by the reference court due to smallness of the area. Other exemplar sale deed being paper no. 56Ga/2 was rejected because it was of development housing scheme. Assuming that exemplar sale deed of even smaller area can be relied on, though larger area was acquired but the rate would come to Rs. 30 per sq. yard only. The SLAO has awarded compensation at the rate of Rs. 26.880 paise, say Rs. 27/- per sq. yard.
Insofar as the circle rate is concerned, suffice it to note that undisputedly, the circle rate cannot form the sole basis for determination of market value. In the present case, the circle rate of Dariyabad area could not form the basis for the acquired land. It cannot be disputed that the circle rate may be a guiding factor in appropriate case. Even if the lowest circle rate is taken into account for the purpose of determination of market value of the land, in view of the fact that the land was acquired for construction of widening of Chachar Nala, in the opinion of this Court, the Government, as claimed, was entitled for deduction at the rate of 40% towards the development of the acquired land. Therefore, even if the market value at the most is taken to be Rs. 200 per sq. meter, the rate would roughly come to Rs. 182 per sq. yard and after deducting 40% towards development charges, roughly Rs. 73 per sq. yard, the rate would come to Rs. 99 per sq. yard, which may be rounded of to Rs. 100 per sq. yard.
Now two rates are available, one, Rs. 30/- per sq. yard as per exemplar sale deed dated 1.5.1984 paper no. 53Ga (although it is for a very small piece of land) and two, Rs. 100/- per sq. yard as per circle rate (after deducting 40% for development). Since the land in question is usually submerged in river water and is adjoining a Nala and has been acquired for widening of the same, therefore, circle rate cannot form the sole basis and hence, in the opinion of the Court half of the difference between the two rates i.e. Rs. 35/- per sq. yard (100-30=70) can be roughly added in the lower rate available to arrive at the market value of the land in question. Thus, the rate at which compensation would be payable, would come to Rs. 65/- (Rs. Sixty five) per sq. yard only.
Consequently, this appeal is partly allowed. The rate of compensation is reduced from Rs. 400 per sq. yard, as applied by the reference court, to Rs. 60 per sq. yard as per discussion made herein above.
The compensation shall be recalculated accordingly and excess amount, if any paid to the claimant-respondent shall be refunded by him and the appellant-State shall be entitled to recover the same, in accordance with law.
This appeal, accordingly, stands partly allowed. There shall be no order as to costs.
Order Date :- 18.10.2019 Abhishek