Punjab-Haryana High Court
Sudhir Kumar vs State Of Punjab And Anr. on 29 May, 1993
Equivalent citations: (1993)104PLR603
JUDGMENT K.P. Bhandari, J.
1. This judgment will dispose of Regular First Appeal Nos. 2367 and 2368 of 1991 as they arise out of the common judgment of the Addl. District Judge, Ferozepur, for the purposes of these judgments, facts have been taken from Regular First Appeal No. 2368 of 1991.
2. The Punjab Government issued a notification under Section 4 of the Land Acquisition Act (for short the "Act") on August 6, 1973, for acquisition of land measuring 35 acres, 1 kanal and 10 Marlas in village Panchanwali, Tehsil Fazilka, District Ferozepur. The acquired land included land measuring 19 Kanals 14 Marlas belonging to the appellant. The provisions of Section 17 of the Act were invoked and enquiry under Section 5A was dispensed with. Thereafter, notification under Section 6 of the Act who issued on August 6 1973. The State immediately took possession of the land in dispute. Sudhir Kumar and other landowners challenged the notification by means of Civil Writ Petition No. 3465 of 1973 The main challenge to the notification was on the ground that the provisions of Section 17 of the Act regarding the urgency could not be invoked. The ground of challenge raised by the writ petitioners was accepted by this Court. The writ petition was allowed and the impugned notification was quashed as regards the petitioners to the writ petition vide judgment and order dated 19.11 1976. The State filed Letters Patent Appeal No. 14/1977 against the judgment of the learned Single Judge. The Letters Patent Appeal was dismissed on August 8, 1978. The Letters Patent Bench, however, clarified that the notification regarding acquisition stood quashed only qua the writ petitioners.
3. A portion of the land for which the acquisition was set aside by this Court was acquired by the Government vide notification dated March 7, 1979. Subsequently, the land in dispute belonging to the appellant measuring 19 Kanal 14 Marlas was notified for acquisition by the Government on December 9, 987. The State acquired the land for grain market at Fazilka. The Collector gave the award. According to the award of the Collector, the market value of the land was assessed at Rs. 1,10,400/- per acre. Aggrieved against the award given by the Collector, the appellant moved the Collector for a reference under Section 18 of the Act. The reference came up for hearing before the Additional District Judge, Ferozepur. The Additional District Judge allowed the compensation at the rate of Rs. 8/- per square feet vide judgment and order dated August 24, 1991.
4. Aggrieved against the aforesaid judgment and order passed by the Additional District Judge, Ferozepur, the appellant has come up in appeal to this Court.
5. The counsel for the appellant submitted that the land in dispute is a commercial property. This is a part of the well-developed grain market at Fazilka. The counsel for the appellant further submitted that the grain market was established way back in 1973 and the present acquisition of the small piece of land was made on December 9, 1987. The land in dispute is situated on the National Highway. This land is in front of the grain market.
6. Counsel for the appellant relied upon Ex. AW. 7/2, an extract of the Auction Register which shows that on December 13, 1982, grain shops, shop-cum-flats and booths were auctioned in the Grain Market, Fazilka. The acquired land is situated in close vicinity of the well developed grain market Counsel for the appellant submitted that the sale price fetched in the public auction in the Mandi area is the best evidence to determine the market value of the acquired land. According to plan Ex. AW8/3 the size of the grain shop was 20 x 125 sq. feet, the size of the shop cum flat was 20 x 180 sq. feet and that of the booth was 10 x 30 sq. feet. According to Ex. AW. 7/2 the average price fetched in auction by the sale of grain shops, shop-cum-flats and both on 13. t' 1982 was Rs, 39 97 per sq. feet. A person of Ex, AW 7/3 would show that a booth was auctioned on January 11,1984. Sale of booths fetched the price at the rate of Rs. 94 66 per sft. Ex. A. W. 7/6 is also a copy of the Auction Register. A perusal of this document would show that the grain shops and booths were auctioned in Mandi area on 8.3.1988 and the average price fetched in the auction was Rs. 129.30 per sft. Ex. AW.7/6 would show that there has been arise in prices from 1982 to 1988 in the grain market, Fazilka. Shri G K Chatrath, Advocate General, Punjab submitted that the Additional District Judge has rightly determined the market value on the basis of the sale tomsations Ex. R/I to R/7.
7. The appellant in his application for reference Under Section 18 of the Act has averred that the land in dispute is a part of the grain market: established in the year 1973. This area is in front of this Mandi. It is surrounded by a wall of the Market Committee. All this area is purely commercial. The State has also carved out a small booth of the size 30' x 10? and plots for medium sized shop-cum offices measuring 20' x 80'. It is further averred that the State has been selling the plots in auctions held in the years 1973, 1982, 1988, 1985. 1988 and 1989. The appellant further averred that at present the prevailing price is Rs. 153.66 per sft. The appellant, however, claimed Rs. 150/- per sit, The appellant has also averred that the possession of the land is with the State from 20 8.1973.
8. The State has filed reply to the application. In the reply, the State has not denied the stand of the appellant that the land in dispute is a part of the grain market established in the year 1973, and that this land is in front of the Mandi. The State has also not denied that the size of the booth is 30' x 10' and that of shop cum offices is 20' x 80'.
9. Sh. Nand Lal Dhingra AW. 3 appeared in the witness box and deposed that the land in question was acquired in the year 197 3. The acquisition was set aside by the High Court and that the land is in possession of tie Government. He has also stated that the land is in front of the grain market. It is abutting on the National Highway. It is a part of the grain market. He has further deposed that there is well-developed market where all facilities like water, electricity, farmer rest house and office complex for Market Committee exists. The appellant has also examinee in evidence Hazari Lal AW6 who is a member of the staff of the Municipal Committee. He has stated that the land is situated in the municipal limits since 1974. Gian Singh, Naib Tehsildar of Colonisation Department, Ferozepur, AW7 also appeared in the witness box. He deposed that the land in dispute is situated on the National Highway. The land is in possession of the Government since 20.8 1973. He has also stated that the land in dispute is situated adjacent to other land of the appellant which was acquired by the Government. Jang Sher Bahadur, Draftsman, AW8 proved the plans Ex. AW8/1 to AW8/3. He has deposed that the land in dispute has been shown red therein. He has stated that the plans are correct according to the spot and masawi and the notes of the plans are in accordance with the registered sale deeds. Ashwani Kumar A.W9, one of the claimants^ has also deposed that the land in dispute is a commercial property and is adjoining the National Highway. It is in the possession of the Government since 1973. He has also deposed that bus stand, police station, Municipal Committee office, Main Bazar and school are situated at a distance of 11/2 kms. from the land in dispute.
10. Malkiat Singh R. W. 1, Patwari, Colonisation Department, was examined by the State He produced sale deeds Exhibit R-2 to to R-7. These sale transactions took place after judgment of this Court A. W. 3/M In cross-examination, he admitted that the land of Sudbir Kumar, the land owners, is in one block and touches the National Highway. He also admitted in the cross-examination that there are government booths in front of portion of the acquired land. There are also shops. There is also Vikas Bhawan, a three-storeyed building nearby it. He further admitted in cross-examination that the acquired land ism- ant for booths, shop cum-flats. etc. He also deposed in his statement that the Police Station Sadar, Industrial Training Institute, Petrol Pump are very near to the acquired land. He has also deposed that there are shops on the National Highway opposite the market area. All these developments are existing according to this witness near the acquired land which is in possession of the government since August 20, 1973.
11. From the evidence discussed. it is clear that the acquired land is situated in front of the grain market The land abuts the National Highway. The acquired land is the part of the land being developed for grain market. The land in dispute in commercial property which had the potentiality of immediate use as shops and booths etc. on the date of notification under Section 4 of the Act. So the market value of the property has to be determined on the basis of acquired property being commercial property.
12. N C Jain, 1, in Regular First Appeal Nos 2215 and 2361 of 5989 (Sudhir Kumar v. State of Punjab and Anr.), decided on 12th September, 1990, Exhibit A W 3/M, while deciding the case regarding acquisition of the adjoining land observed as follows :-
"In view of the above mentioned discussion, the acquired land has got to be held to be a part of the Mandi and rather being situated on National Highway, the same was having better potentialities Even the Additional District Judge had for record a firm finding on the point of potentialities of the acquired land in paragraph 11 which can be reproduced below :-
"There can be no dispute that the acquired land did come to possess higher potential than the neighbouring lands which were previously acquired in 1973. The claimants by their determined effort got the acquisition quashed but this was only qua their own land. The result being that when this land was acquired afresh the claimants were entitled to payment of market value assessed on the date of second notification under Section 4 issued on March 7, 1979. During the interim period, the price of the land had naturally gone up very high. Fazilka is a well know market town with a number of old cotton and wool merchants. The establishment of the New Mandi Township was bound to have attracted the merchants and traders of Fazika to invest in plots and set up their business there. The plots in the New Mandi Township were sold for considerably high price. This had the natural effect of pushing up the price of all neighbouring land including the acquired land. As the potential of the acquired land for being developed and sold in the shapes of small plots cannot be denied, the sole question for determination is whether the Collector had correctly assessed its market value and if not, does the Award of the Collector required to be upwardly enhanced."
13. On a consideration of the evidence on record, I am of the opinion that it is proved that the land in dispute is a commercial property and its market value is to be determined on the basis of its potentiality as commercial property. The land has the potentiality of being used for the purposes of shops, booths and shop-cum-offices The evidence of sale price of the shops, booths obtained in public auction made by the government is available. The sale price obtained in auction of shops-booths and shop-cum offices is the best evidence for determination of the market value of the land in dispute.
14. On a consideration of the evidence on record regarding sale by auction, I think it would be proper to determine the market value on the basis of Exhibit A. W. 7/2. The average price fetched in the sale of grain shops, shop-cum flats and booths is Rs. 3 9.97 per sq feet. on December 13, 1984, i. a, the date of auction. For convenience of calculation we can safely round off Rs. 39 97 to Rs. 40/- per sq. feet.
15. As the market value of the land on December 13, 1982 has been determined at Rs. 40/- per sq feet., the Court is under legal obligation to allow the benefit of rising prices for the intervening period, i.e., from December 13, 1982 to December 9, 1987, viz., the date of the notification for acquisition of the land in dispute. It has been held in Inder Singh v. State of Punjab, (1988-2) 94 PLR, undisputed the prices have been rising and the Court can take judicial notice of it. According to the law laid down in Inder Singh's case (supra), the intention of the Legislature is to recognize the increase of 12% in price rice for every year. By allowing the benefit of 60% for the intervening period, i.e. from December 13, J982 to December 9, 1987, the market value of the land will come to Rs. 6'/- per sq feet. Infixing the market value of a large property on the basis of a sale transaction for smaller property, generally a deduction is given taking into consideration the expenses required for development of the larger tract to make smaller plots within that area in order to compare with the small plots dealt with under the sale transaction. However, in the vast area there may be land which is fully developed having all amenities and situated in an advantageous position. If smaller area within the large tract is already developed and suitable for building purposes and have in its vicinity roads, drainage, electricity, communication, etc., then the principle of deduction simply for the reason that it is a part of the large tract acquired, may not be justified.
16. The acquired land abuts the well developed grain market Indeed it was planned right from the beginning that this piece of land should be a part of the gram market. In the adjoining area in the grain market all facilities such as road, electricity, water, etc., area available. No more development is called for. So in view of the law laid down by the Supreme Court in Bhagwathula Samanna v. Special Tehsildar and Land Acquisition Officer, Visakhapathnam, Municipality, A.I.R. 1992 S.C. 2298 no deduction is called for.
17. The Counsel for the appellant has also placed reliance upon the documents Exhibits A. W 9/1, A. W. 2/A to G A W 4/f and A. W. 4/i and submitted that on the basis of this evidence, the market price should be determined. As I have held that the property in dispute is a commercial property and has the potentiality of being used as site for shops, booths, etc., it is not necessary to consider this evidence when best evidence is available in the form of sale by public auctions conducted by the Government itself.
18. The Additional District Judge in the present case has determined the market price on the basis of the sale transactions Exhibits R-2 to R.7. These tales do not relate to the land which is comparable in potential value of the acquired land. The land covered by these sale instances does not touch the National Highway. This land is not in the Mandi area This land is not within the municipal limits of Fazlika. This land bears no comparison in situation and location to the acquired land the acquired land is in front of the gram market and adjoins the National Highway. The acquired land is part of the well developed Mandi The Additional District Judge completely ignored the evidence on record that the acquired land has commercial character. He did not even discuss the finding of N C Jain J in Sudhir Kumar's case (supra) that the adjoining land is commercial in character and was to be evaluated as such The Additional District Judge determined the market value by not considering the material evidence on record regarding the situation, location and importance of the land in dispute and, therefore, the finding recorded by the Additional District Judge cannot be sustained.
19. The learned Advocate General invited my attention to the finding of the Additional District Judge that the appellant was not entitled to the benefit of appreciation of market value due to the development of the grain market. In my opinion, the Additional District Judge was in error in thinking that the appellant cannot take the benefit of the appreciation of the value of the land due to the development of the gain am market close to it. The land acquired was a part of the original plan for acquisition. The acquisition of the land in dispute was set aside. The Government took 1 4 years to re-acquire this piece of land The appellant cannot be deprived of the benefit of the appreciation in the value of the land over the past 14 years due to he development in the urban area ft must be remembered that the market value of the land has to be determined as on the date of notification under Section 4 or the Act. A Division Bench of this Court in State of Punjab v. Raminder Kaur and Anr., 1988 L. A. C. C. 610, consisting of S Sandhawalia, C. J. and 1. S. Tiwana, J, repelled a similar argument. So, this finding of the Additional District Judge cannot be sustained in view of the authoritative pronouncement of the Division Bench.
20. The Counsel for the appellant submitted that the Additional District Judge omitted to refer to the provisions of Section 23(1A) of the Act in the order that the appellants are entitled to the benefit of the amended provision of Section 23(1A) of the Act. On the face of it, the appellants are entitled to this benefit. The Collector's Award in the present case is dated 27 9.1989 that is, after 30,4.1982. The appellants are entitled to all the statutory benefits of the amended provisions of Sections 23(1A), 23(2) and 28 of the Land Acquisition of 1991 is allowed. Three months' time is granted to the appellants to make up the deficiency in the payment of court fee. On oral request of the counsel for the appellant in R F A. No. 2367 of 1991, three months' time is allowed to the appellants to amend the claim for enhancement of compensation and for making up the deficiency in the payment of court fee on the enhanced compensation.