Punjab-Haryana High Court
Rajinder Singh And Ors vs Land Acquisition Collector And Ors on 28 November, 2014
Author: Anupinder Singh Grewal
Bench: Ashutosh Mohunta, Anupinder Singh Grewal
CWP No.3618 of 2009 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CWP No.3618 of 2009
1. Rajinder Singh & Ors. ...Petitioner(s)
Versus
Land Acquisition Collector & Ors. ...Respondent(s)
CWP No.2660 of 2009
2. Harjeet Singh ...Petitioner(s)
Versus
Land Acquisition Collector & Ors. ...Respondent(s)
CWP No.3642 of 2009
3. Balwant Singh ...Petitioner(s)
Versus
Land Acquisition Collector & Ors. ...Respondent(s)
CWP No.3600 of 2009
4. Harjeet Singh ...Petitioner(s)
Versus
Land Acquisition Collector & Ors. ...Respondent(s)
CWP No.3643 of 2009
5. Harbans Singh & Ors. ...Petitioner(s)
Versus
Land Acquisition Collector & Ors. ...Respondent(s)
CWP No.5684 of 2010
6. Nirmal Singh ...Petitioner(s)
Versus
Land Acquisition Collector & Ors. ...Respondent(s)
Date of Decision: 28.11.2014
CORAM: HON'BLE MR. JUSTICE ASHUTOSH MOHUNTA,
ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE ANUPINDER SINGH GREWAL
Present: Mr. C.M.Munjal, Advocate with
Mr. P.S.Jammu, Advocate
for the petitioners (Amicus-curie).
Mr. J.S.Puri, Additional Advocate General, Punjab.
MOHAN SINGH
2014.12.01 15:34
I attest to the accuracy and
authenticity of this document
CWP No.3618 of 2009 -2-
Mr. G.S.Attariwala, Advocate
for respondent No.2-Improvement Trust.
***
1. Whether Reporters of Local papers may be allowed to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
ANUPINDER SINGH GREWAL, J This order will dispose of six petitions bearing CWP Nos.2660, 3642, 3600, 3618, 3643 of 2009 and CWP No.5684 of 2010 since common questions of facts and law are involved in the same.
The land of the petitioners was acquired vide notification under Section 36 dated 24.5.1974 of the Town Improvement Act 1922, (hereinafter referred to as the Act) for development scheme framed by Amritsar Improvement Trust for the area bounded by Burj Baba Phula Singh Road, G.T. Road Chamrangan Road and the Outer Circle Road, Amritsar. The declaration under Section 42 of the Act was issued on 9.5.1977. The Land Acquisition Collector, Amritsar Improvement Trust vide Award dated 3.8.1978 categorised the land into three belts as under:
BELT-A comprised of land measuring 87K-4M abutting the GT Road upto a depth of 60 karams.
BELT-B comprised of land measuring 76K-17M abutting Chamrangan Road upto a depth of 60 karams.
BELT-C rest of the land measuring 526K-04M at rear of BELT A and B. The compensation was thereafter assessed and the relevant extract of the award is as under:
"BELT-A:- The land situated at G.T.Road is best of all land comprised in the scheme. I allow 20% increase over and above the rate of Rs.258/- for belt 'A' i.e. Rs.309.60 per MOHAN SINGH 2014.12.01 15:34 I attest to the accuracy and authenticity of this document CWP No.3618 of 2009 -3- marla.
In this belt land measuring 19K-0M bearing khasra nos. 635-36/259 (18K-1M) and 411 (0K-19M) is low lying. I therefore allow a cut of 40% to the above rate of Rs.309-
60. The rate for low lying for belt 'A' therefore works out to Rs.185.76 per marla.
BELT-B:- The land falling on Chamrangan Road is definitely better the land situated in belt 'C' but inferior to land on G.T.Road. I, therefore, allow an increase of 10% over and above the normal rate of Rs.258/-. The rate for this belt as such worksout to Rs.283.80 per marla.
In this belt land measuring 18K-0M bearing Kh. No.260/(2K-0M)262 (0K-11M), 293 (7K-12M), 294 (6K- 5M) and 295 (1K-12M) is low lying, I therefore, allow a cut of 40% to the above rate of Rs.283.80 per marla, the rate for low lying area in belt 'B' worksout to Rs.170.28 per marla.
BELT-C:- The land comprised in this belt is mainly under cultivation, for which I have awarded Rs.258/- per marla.
In this belt land measuring 78K-9M, bearing khasra No.229 (4K-2M), 233 (1K-6M), 245(4K-15M), 246(1K- 6M), 247(5K-0M), 250(5K-9M), 251 (2K-3M), 261 min (2K-9M), 270 (0K-10M), 271 (0-10M), 297 (2K-14M), 298(2K-18M), 302 (1K-8M), 303 (10K-15M), 304 (2K- M), 324 (2K-14M), 329 (1K-17M), 407 (2K-19M), 416 min (1K-6M), 417 (19K-6M) is low lying. I, therefore, allow a cut of 40% on the rate of Rs.258/- per marla. The rate of low lying land in this belt 'C' worksout to Rs.154.80 per marla."
The petitioners were not satisfied with the compensation determined by the Land Acquisition Collector and preferred references under Section 18, of the Land Acquisition Act, to the Land Acquisition Tribunal, Amritsar Improvement Trust, Amritsar. The learned Tribunal vide judgment dated 11.8.2008, held that the compensation of the acquired land MOHAN SINGH 2014.12.01 15:34 I attest to the accuracy and authenticity of this document CWP No.3618 of 2009 -4- was correctly assessed and all the references were answered against the petitioners.
The land of the petitioners in all the six writ petitions is said to fall in BELT C and they have prayed for setting aside the order of the learned Tribunal and sought enhancement of compensation.
Learned counsel for the petitioners have stated that the land is in the heart of the Amritsar city and the Improvement Trust had sold the land immediately after acquiring the land at Rs.500/- to Rs.700/- per Sq.
Yard. Learned counsel for the petitioners have further stated that learned Tribunal has erroneously discarded sale deed Mark B, wherein the land was sold at much higher rate. Lastly they have submitted that the belting system has been incorrectly applied especially as far as BELT C is concerned and 40% cut, which has been applied for low lying land is without any basis.
There is no evidence that the land is low lying except for the bald assertion of RW1 Piare Lal, Kanungo before the learned Tribunal who had stated that the acquired land was uneven at the time of acquisition.
On the contrary, learned counsel for the respondents have stated that the market value of the land has been correctly assessed by the Land Acquisition Collector as well as learned Tribunal and the petitioners are not entitled to any enhancement in compensation.
We have heard the learned counsel for the parties and perused the record.
The market value of the acquired land has to be determined while keeping in view the price which a willing purchaser will offer to a willing buyer. Various factors including geographical location, proximity to road and sale instances in the vicinity of acquired land are taken into MOHAN SINGH 2014.12.01 15:34 I attest to the accuracy and authenticity of this document CWP No.3618 of 2009 -5- account while assessing the market value. The principles for determining market value have been laid down by the Hon'ble Supreme Court of India in case titled as Sabhia Mohammed Yusuf Abdul Hamid Mulla v. Land Acquisition Officer, (2012) 7 SCC 595 as under:
"16. We have considered the respective arguments and carefully perused the record. It is settled law that while fixing the market value of the acquired land, the Land Acquisition Collector is required to keep in mind the following factors:
(i) Existing geographical situation of the land.
(ii) Existing use of the land.
(iii) Already available advantages, like proximity to National or State Highway or road and/or developed area.
(iv) Market value of other land situated in the same locality/village/area or adjacent or very near the acquired land.
17. In Viluben Jhalejar Contractor v. State of Gujarat this Court laid down the following principles for determination of market value of the acquired land: (SCC pp. 796-97, paras 17-21) "17. Section 23 of the Act specifies the matters required to be considered in determining the compensation; the principal among which is the determination of the market value of the land on the date of the publication of the notification under sub-section (1) of Section 4.
18. One of the principles for determination of the amount of compensation for acquisition of land would be the willingness of an informed buyer to offer the price therefor. It is beyond any cavil that the price of the land which a willing and informed buyer would offer would be different in the cases where the owner is in possession and enjoyment of the property and in the cases where he is not.
19. Market value is ordinarily the price the property may fetch in the open market if sold by a willing seller unaffected by the special needs of a particular purchase.
MOHAN SINGH 2014.12.01 15:34 I attest to the accuracy and authenticity of this document CWP No.3618 of 2009 -6-Where definite material is not forthcoming either in the shape of sales of similar lands in the neighbourhood at or about the date of notification under Section 4(1) or otherwise, other sale instances as well as other evidences have to be considered.
20. The amount of compensation cannot be ascertained with mathematical accuracy. A comparable instance has to be identified having regard to the proximity from time angle as well as proximity from situation angle. For determining the market value of the land under acquisition, suitable adjustment has to be made having regard to various positive and negative factors vis-à-vis the land under acquisition by placing the two in juxtaposition. The positive and negative factors are as under:
Positive factors Negative factors
(i) smallness of size (i) largeness of area
(ii) proximity to a road (ii) situation in the interior
at a distance from the road
(iii) frontage on a road (iii) narrow strip of land
with very small frontage compared to depth
(iv) nearness to developed area (iv) lower
level requiring the depressed portion to be filled up
(v) regular shape (v) remoteness from developed locality
(vi) level vis-à-vis land under acquisition (vi) some special disadvantageous factors which would deter a purchaser
(vii) special value for an owner of an adjoining property to whom it may have some very special advantage.
21. Whereas a smaller plot may be within the reach of many, a large block of land will have to be developed preparing a layout plan, carving out roads, leaving open spaces, plotting out smaller plots, waiting for purchasers and the hazards of an entrepreneur. Such development charges may range between 20% and 50% of the total MOHAN SINGH 2014.12.01 15:34 I attest to the accuracy and authenticity of this document CWP No.3618 of 2009 -7- price."
There does not seem to be any dispute about the potential of the land and it being close to Amritsar city. The petitioners have relied upon oral evidence of AW1 to AW3 to state that the sale instances of adjoining land were much higher. However, we cannot assess the compensation on the basis of oral evidence.
The reliance of the petitioners on sale deed Mark B is also misplaced inasmuch as it took place on 6.12.1974 whereas the land in the instant case was acquired on 24.5.1974. It was in fact 6 months after the date of notification under Section 36 of the Act. It is settled law that the post notification sales can only be taken into consideration if the petitioners lead positive evidence to suggest that there was no increase in prices after the date of notification. The petitioners have led no evidence whatsoever in this regard and have on the contrary stated that the prices of land were increasing as after acquisition the plots were sold by the Improvement Trust at much higher rates. Reference may be made to the judgment of the Hon'ble Supreme Court of India in 2010(9) SCC 2010 titled as A. Natesam Pillai v. Special Tahsildar, Land Acquisition, Tiruchy wherein it has been held as under:
"12. At times, in order to prove the actual, fair and just compensation for the land acquired, sale deeds of the adjacent land or near about adjacent land are produced to indicate the trend of the value of the land within the near vicinity of the acquired land. Such sale deeds are taken notice of generally when they are prior in point of time to the date of notification, and any sale deed which is post notification dated is generally ignored, unless evidence is led to show that there was no increase in price despite such acquisition.MOHAN SINGH
2014.12.01 15:34 I attest to the accuracy and authenticity of this document CWP No.3618 of 2009 -8-
13. This Court in Administrator General of W.B. v. Collector Varansi reported at (1988) 2 SCC 150, has held:
(SCCp. 158, para 13) "13....Such subsequent transactions which are not proximate in point of time to the acquisition can be taken into account for purposes of determining whether as on the date of acquisition there was an upward trend in the prices of land in the area. Further under certain circumstances where it is shown that the market was stable and there were no fluctuations in the prices between the date of the preliminary notification and the date of such subsequent transaction, the transaction could also be relied upon to ascertain the market value. This Court in State of U.P. v.
Jitendra Kumar, observed: (SCC p. 383, para 3) '3...It is true that the sale deed, Ext.21 upon which the High Court has relied is of a date three years later than the notification under Section 4 but no material was produced before the court to suggest that there was any fluctuation in the market rate at Meerut from 1948 onwards till 1951 and if so to what extent. In the absence of any material showing any fluctuation in the market rate the High Court thought it fit to rely upon Ext.21 under which the Housing Society itself had purchased land in the neighbourhood of the land in dispute. On the whole we are not satisfied that any error was committed by the High Court in relying upon the sale deed Ext.21."
But this principle could be appealed to only where there is evidence to the effect that there was no upward surge in the prices in the interregnum. The burden of establishing this would be squarely on the party relying on such subsequent transaction."
14. As a result of such acquisition, the market value of the adjacent land would generally, and in most cases, go up and therefore, such post notification transaction may not be a sound criterion to determine and assess the value of the acquired land. In the present case, the appellant has also not adduced any evidence to show that the market value of the MOHAN SINGH adjacent land has not increased in the interregnum. The 2014.12.01 15:34 I attest to the accuracy and authenticity of this document CWP No.3618 of 2009 -9- Reference Court and the High Court were justified in rejecting these sale deeds from consideration. We must, therefore, keep the aforesaid two sale deeds outside our consideration while assessing and determining the just and fair compensation for the acquired land. Ext.A2 is also a sale deed but the same also is not a safe guide as the price for the land covered therein was later on increased to make it in parity with the government prescribed rate. "
Thus, the petitioners have not been able to make out a case for enhancement of compensation.
The categorisation of the land into three belts cannot be faulted as the land abutting the road will fetch higher rate than the land in the anterior. Land abutting the G.T. Road as in Belt A will also fetch more price as compared to land on the link road as in Belt B. An area of 122 acres which is shown as agricultural in revenue record has been acquired in the year 1974 and hence application of belting appears to be justified. The recent trend, however, is that when the land is acquired within municipal limits or in vicinity of city the belting principle is not applied as due to rapid urbanisation the land away from the road may be preferred by some buyers to avoid air and noise pollution. It needs to be mentioned that the market value has in fact been assessed as Rs.258/- per marla and in Belt A it is increased by 20% and Belt B by 10%. Hence, even if we were to do away with belting system, compensation of land of petitioner which is in Belt C would still be Rs.258/- per marla.
However, there appears to be merit in the submission of the learned counsel for the petitioners that a cut of 40% has been applied for 78K-9M out of total area of 526K-04M in BELT C without any cogent evidence in this regard. There is no reference in the award of the Collector MOHAN SINGH 2014.12.01 15:34 I attest to the accuracy and authenticity of this document CWP No.3618 of 2009 -10- to any evidence with regard to the low lying area. Even before the Reference Court, RW1 Piare Lal Kanungo has only stated that land was uneven.
The onus was on claimants to produce evidence that it is not low lying but they have not led any evidence in this regard. Land was acquired in 1974 and it would be pointless to remand the case at this stage for recording evidence on this issue. There is also no evidence whatsoever about the extent of depth in the low lying area so as to work out the development cost of levelling the land to the same level as the rest of the land. For instance, if the depth is one metre below the rest of the land or there is a pond, etc. in the land, then of course more resources would be required to level the land and the same can be assessed accordingly.
Nevertheless cut of 40% is on the higher side and even assuming that it is to some extent low lying, as compared to the rest of the land, a cut of 20 per cent would be sufficient. We take judicial notice of the fact that the land has been acquired for the development scheme in Amritsar City. Geographically Amritsar is a plain and not a rocky or hilly area, which would be pronouncedly uneven.
Therefore, the petitions are partly allowed and we hold that a cut of 20 per cent shall be applied instead of 40% for the low lying land measuring 78K-9M in BELT C wherein the land of the petitioners is situated. They shall also be entitled to statutory benefits including interest and solatium.
(ASHUTOSH MOHUNTA) (ANUPINDER SINGH GREWAL)
ACTING CHIEF JUSTICE JUDGE
28-11-2014
Mohan
MOHAN SINGH
2014.12.01 15:34
I attest to the accuracy and
authenticity of this document