Punjab-Haryana High Court
Jai Singh vs State Of Haryana And Others on 29 March, 2022
RA-RF-8-2022 in
RFA No.3000 of 2016 & -1-
other connected cases
RA-RF-8-2022 in RFA No.3000 of 2016
RA-RF-12-2022 in RFA No.1350 of 2019
RA-RF-13-2022 in RFA No.4676 of 2017
Jai Singh Versus State of Haryana and others
Present: Mr. Ashwani Chopra, Sr. Advocate
with Mr. P.S.Saini, Advocate
and Mr. Vidul Kapoor, Advocate
for the applicant-appellant.
Mr. Shivendra Swaroop, AAG, Haryana.
**
1. These review applications have been filed by the HSIIDC claiming that the judgment dated 15.11.2021, 02.11.2021 and 24.11.2021, passed in the following cases (1) RFA No.3000 of 2016 (Jai Singh vs. State of Haryana and others, decided on 15.11.2021); (2) RFA No.1350 of 2019 (HSIIDC vs. Sultan Singh and others, decided on 02.11.2021); and (3) RFA No.4676 of 2017 (HSIIDC vs. Dhani Ram and others, decided on 24.11.2021, are required to be reviewed/recalled. The issue is identical, hence, the facts are being taken from Jai Singh's case.
2. The review has been sought on the following grounds:-
(i) At the time of arguments of the appeals, the learned counsel representing the landowners did not contend that no deduction on account of development cost should be applied.
(ii)The developers/colonizers have purchased the land, therefore, those sale deeds are not true and correct 1 of 11 ::: Downloaded on - 11-07-2022 23:16:01 ::: RA-RF-8-2022 in RFA No.3000 of 2016 & -2- other connected cases reflection of the market value of the acquired land.
(iii) Section 23 of the Land Acquisition act, 1894 uses two expressions independently, namely, the compensation and the market value. It is contended that at the time of determining the compensation, the court necessarily/mandatorily required to apply the deduction on the base value while determining the market value of the acquired land on the basis of comparable sale deeds.
3. This court has heard the learned senior counsel duly assisted by Sh. Pritam Singh Saini, Advocate, appearing for the review-applicant and with their able assistance perused the paper book.
4. In Jai Singh's case (supra) while deciding a batch of Regular First Appeals, the Court after analysing the various judgments of the Supreme Court including Lal Chand Vs. Union of India (2009) 15 SCC 769, Haridwar Development Authority vs. Raghbir Singh and others (2010) 11 SCC 581, Anjani Molu Dessai vs State Of Goa & Anr (2010) 13 SCC 710 , Atma Singh vs. State of Haryana (2008) 2 SCC 568, Chakas _ vs. State of Punjab, (2011) 12 SCC 128, General Manager, Oil and Natural Gas Corporation Ltd. vs. Rameshbhai Jivanbhai Patel and another, (2008) 14 SCC 745, Chandrashekhar(D) by LRs and others vs. Land Acquisition Officer and another, (2012) 1 SCC 390, A.P. Housing Board vs K. Manohar Reddy & Ors. (2010) 12 SCC 707, Shaji Kuriakose And Anr vs Indian Oil Corpn. Ltd. And Ors. (2001) 7 SCC 650 , has 2 of 11 ::: Downloaded on - 11-07-2022 23:16:01 ::: RA-RF-8-2022 in RFA No.3000 of 2016 & -3- other connected cases expressed its opinion. While deciding market value of the acquired land, the court is required to adopt a pragmatic view. Merely because the learned counsel representing the parties have failed to address the issue in the correct perspective, would not debar the court from awarding an appropriate market value of the acquired land to the landowners who are in the shoes of persons who have lost their land. On reading of the judgment passed in Jai Singh's (Supra), it is evident that various reasons have been recorded before forming an opinion.
5. While assessing the compensation for the acquired land, the parties are not litigating in an adversial system of justice which is dependent only on the parties to the litigation. In the cases involving assessment of the market value for acquisition of land, the Court is expected to ensure that the landowners who stand deprived of their land, at times, when it is their only source of earning, get suitably compensated while maintaining equilibrium amongst the interest of various parties involved in the litigation. It is expected from the Courts to rise above the contentions of learned counsel representing the parties and assess the amount on the basis of the evidence produced after applying the settled law. The Supreme Court in more than one of its judgments has observed that irrespective of the demand of the owners, the court is required to assess an appropriate amount of the market value and the landowners should not be deprived of the market value only because they failed to claim the appropriate amount in their claims/petitions. The Court in these land acquisition matters is expected to decide on the basis of reasonableness and fairness, so that the person who loses his land is compensated fairly without prejudicing the opposite party.
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6. Keeping that spirit in mind, it becomes bounden responsibility of the Presiding Judges to assess the market value in a just, fair and reasonable manner. Such expectation from the Presiding Judges of the Court are neither onerous and excessive.
7. In any case, the learned senior counsel representing the review- applicant has been heard at length. Hence, the grievance of the applicant on first issue stand addressed.
8. The next argument of the learned senior counsel representing the applicant is with respect to the purchase of the land made by the various developers/colonizers. It may be noted here that if the land has the potential to be utilized for residential or commercial/ industrial purposes, then the large scale purchases made by the developers/colonizers cannot be ignored only on the ground that these purchases are made by the colonizers. No private colonizer or developer will pay in excess of the market value, if the substantially bigger parcels of the land have been purchased and the sale instances are not isolated or stray sale deeds. When the acquired land has the potential and the various purchases made by the colonizers are found genuine, which they fulfill the five tests laid down by the Supreme Court in Shaji Kuriakose and another(supra), then there is no reason left to ignore the sale deeds exemplars produced by the parties. On reading of para 7.24 of the said judgment, it is evident that the court has relied upon as many as 9 sale instances of sufficiently bigger parcels of land so as to assess the market value of the acquried land. The court has also noticed that these sale deed are with respect to the acquired land itself. In the considered opinion of the court, the sale deed examplers of the acquired land are the best evidence to 4 of 11 ::: Downloaded on - 11-07-2022 23:16:01 ::: RA-RF-8-2022 in RFA No.3000 of 2016 & -5- other connected cases assess the market value of the acquired land.
9. The next argument of the learned senior counsel representing the review-applicant is with regard to a distinction between the expressions 'compensation' and 'market value'.
10. On a careful reading of Section 23(1) which has been reproduced in the main judgment, it is evident that sub-section (1) uses the expression 'compensation', whereas the first clause of sub-section (1) uses the expression 'the market value'. The Statute in Section 23(1) of the 1894 Act, provides that while determining the amount of compensation to be awarded for the land acquired, the court shall take into consideration the following six factors:-
"23. Matters to be considered in determining compensation (1) In determining the amount of compensation to be awarded for land acquired under this Act, the Court shall take into consideration--
first the market-value of the land at the date of the publication of the[notification under Section 4, sub- section (1) secondly the damage sustained by the person interested, by reason of the taking of any standing crops or trees which may be on the land at the time of the Collector's taking possession thereof;
thirdly the damage (if any) sustained by the person interested, at the time of the Collector's taking possession of the land, by reason of severing such land from his other land;
fourthly the damage (if any) sustained by the person interested, at the time of the Collector's taking possession of the land, by reason of the acquisition injuriously affecting his other property, movable or immovable, in any other manner, or his earnings;
fifthly if, in consequence of the acquisition of the land by the Collector, the person interested is compelled to change his residence or place of business, the reasonable expenses (if any) incidental to such change, 5 of 11 ::: Downloaded on - 11-07-2022 23:16:01 ::: RA-RF-8-2022 in RFA No.3000 of 2016 & -6- other connected cases and sixthly the damage (if any) bona fide resulting from diminution of the profits of the land between the time of the publication of the declaration under Section 6 and the time of the Collector's taking possession of the land. [(1-A) In addition to the market-value of the land, as above provided, the Court shall in every case award an amount calculated at the rate of twelve per centum per annum of such market-value for the period commencing on and from the date of the publication of the notification under Section 4, sub-section (1), in respect of such land to the date of the award of the Collector or the date of taking possession of the land, whichever is earlier. Explanation.--In computing the period referred to in this sub-section, any period or periods during which the proceedings for the acquisition of the land were held up on account of any stay or injunction by the order of any court shall be excluded.] (2) In addition to the market-value of the land, as above provided, the Court shall in every case award a sum of[thirty per centum] on such market-value, in consideration of the compulsory nature of the acquisition."
11. The component of compensation includes the market value of the acquired land at the date of publication of notification under Section 4 of the Land Acquisition Act, 1894, the additional amount as provided under Section 23(1-A), the amount of solatium as provided in Section 23(2) of the 1894 Act and the amount found payable under Clauses 2, 3, 4, 5 and 6 of Section 23. In other words, Section 23 discusses of not only the market value but comprehensive compensation which is payable to the landowners for the compulsory acquisition of the land. In 1894 Act, initially there was no provision for the award of additional amount under Section 23(1-A) which was inserted by Act 68 of 1984. Similarly, the amount of solatium which is in the nature of compensating the landowners for the compulsory nature of the acquisition before enforcement of Act no.68 of 1984 was 15% 6 of 11 ::: Downloaded on - 11-07-2022 23:16:01 ::: RA-RF-8-2022 in RFA No.3000 of 2016 & -7- other connected cases which was subseqeuntly increased to 30% of such market value. Hence, concept of compensation has undergone change with the passage of time.
12. The expressions, 'compensation' and 'market value' of the acquired land are not synonymous to each other. Under Clause 1 of Section 23 (1), the court at the first instance is required to determine the market value of the land at the date of publication of notification under Section 4 of the 1894 Act. Under the second clause, the court is required to assess the damages sustained by the person interested by reason of acquiring any of the standing crops or trees at the time of the collector's taking its possession. Under Clause-3, the court is required to assess the damages, if any, sustained by the person interested by the reason of severance of such land from his other land. Under Clause-4, the Court is required to assess the damages, if any, sustained by the person interested by the reason of the acquisition injuriously affecting his other property movable or immovable or his earning. Under Clause-5, the Court is required to assess the damages, if any, suffered by the person who is compelled to change his residence or place of business. Under the same clause-5, the reasonable expenses, if any, incidental to such change, i.e. Change of residence or place of business, are required to be awarded. Under Clause-6, the court is required to award the damages, if any, bonafidely resulting from reduction of the profits of the land between the time of publication of declaration under Section 6 and the time of the Collector's taking possession of the land. Thus, it is evident that the expression "compensation" includes the amount assessed by the Court under all the six clauses of Section 23(1) as also benefits under sub-section (1-A) and (2) of Section 23. Consequently, this court does not find it 7 of 11 ::: Downloaded on - 11-07-2022 23:16:01 ::: RA-RF-8-2022 in RFA No.3000 of 2016 & -8- other connected cases appropriate to accept the argument put forth by the learned senior counsel.
13. The learned senior counsel has relied upon the various judgments passed by the Supreme Court in support of his arguments which are analyzed as under:-
In Manoj Kumar vs. State of Haryana, (2018) 13 SCC 96, while hearing appeals from the judgment of this Court with respect to acquisition of land in revenue estate of Jagadhri, Jarodha Gulab Nagar and Bhatoli, the court assessed the market value. In the aforesaid case, the Court primarily held that outright reliance on a previous assessment made by a Court while assessing the market value of the acquired land by different notification is not appropriate/reasonable. In the facts of the aforesaid case, the Supreme Court after relying upon various judgments held that in the facts of the aforesaid case, deduction is required to be applied. The aforesaid judgment in the humble opinion of this Court, is not applicable in the present facts. In Major General Kapil Mehra vs. Union of India, (2015) 2 SCC 262, the Court was assessing the market value of 12 bighas of land acquired in the area of Vasant Kunj, New Delhi. The court while relying upon lease deed Ex.A7 to Ex.A10 issued after auction of the residential plots by public auction, directed 35% deduction in the facts of the aforesaid case.
In Haryana State Agricultural Marketing Board vs. Krishan Kumar, (2011) 15 SCC 297, the Court after noticing that value of developed plots of small sizes are being relied upon to assess the market value of the undeveloped land, held that the development cut is necessary. In Safia Mohd. Yusuf Abdul Hamid Mullah vs. Special Land Acquisition Officer, 8 of 11 ::: Downloaded on - 11-07-2022 23:16:01 ::: RA-RF-8-2022 in RFA No.3000 of 2016 & -9- other connected cases (2007) 12 SCC 595, the court was examining proceeding arising under Section 29(A)(3). After relying upon the various judgments, the court held that in the facts of that case, deduction is appropriate.
In Kasturi vs. State of Harya, (2003) 1 SCC 354, the court was assessing the market value of the acquired land in Bhiwani. The Court found that Ex.P7 is a sale instance of 3 kanals (1800 sq. yds. Area) located on the main road. The Court after finding that such sale exemplar is with respect to a small plot, passed the order. In Asha Gupta and others vs. Haryana State and others (Civil Appeal No.12981 of 2017, decided on 12.09.2017), the Court by a short order applied 20% development cut while relying upon the judgment of Major Kapil Mehra (supra). In that case, the sale deed of the year 1995 was relied upon for determining the market value of the acquired land in the year 2012. the Court assessed the market value in absence of any other evidence and therefore, considered it appropriate to apply 20% development cut on the base value In Madhukar vs. Vidharba Development corporation, CA NO.368-369 of 2022, decided on 31.01.2022, 2.42 hectares land was sought to be acquired. The court found that the exemplar sale deed relied upon is with respect to only 151 sq. meters of developed plot. The Reference Court applied deduction of 90% which was modified by the High Court. The Supreme Court restored the 90% deduction. In Chimnlal Hargobind Dass vs, Special Land Acquisition Officer, Una, (1998) 3 scc 751, the court in para 4 (15) laid down the factors to be taken into consideration while determining the market value of the land. The Court in para 4 (15), held that when the exemplar sale deed is not comparable then the factor can be 9 of 11 ::: Downloaded on - 11-07-2022 23:16:01 ::: RA-RF-8-2022 in RFA No.3000 of 2016 & -10- other connected cases discounted by making a deduction by way of an allowance at an appropriate rate ranging approximately between 20% to 50%. It is evident that the Court itself observed that deduction is to be applied if the sale exemplar is not comparable. In Viluben Jhalejar Contractor vs. State of Gujarat (2005) 4 SCC 789, the court was assessing the market value of the acquired land for the construction of a reservoir. The Reference Court relied upon a sale deed related to 46.30 sq. meter of plot only. Thus, the Supreme Court after applying deduction of 33% and 55% assessed the market value while observing that the exemplar sale deed produced by the parties is not comparable.
14. It is evident from the reading of the aforesaid judgments that the Supreme Court after observing that the comparable sale deeds of contemporaneous period have not been produced ordered deduction ranging from 10% to 90%. However, all these judgments are in the facts of those cases. No doubt, in one of the judgments, the expression employed by the Court is that the deduction is to be applied necessarily. However, with greatest respect, in the humble opinion of the Court, it cannot be read in a manner to hold that the Supreme Court has laid down as ratio decidendi that in each and every case irrespective of availability of evidence of comparable sale exemplar of contemporaneous period, the deduction is mandatory. In my humble opinion, it all depends upon facts and circumstances of each particular case.
15. Keeping in view the aforesaid discussion, the conclusion is inevitable/imperative. Hence, finding no merit, all the review applications are dismissed.
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16. All the pending miscellaneous applications, if any, are also disposed of.
A photocopy of this order be placed on the files of other connected cases.
28th April, 2022 (ANIL KSHETARPAL)
nt JUDGE
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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