Allahabad High Court
U.P. Avas Evam Vikas Parishad Through ... vs Smt. Mithlesh D/O Shri Prakash Chand ... on 29 November, 2007
Author: Prakash Krishna
Bench: Prakash Krishna
JUDGMENT Prakash Krishna, J.
1. The above appeals are in the nature of cross appeals and have been filed against the judgment and decree dated 12-8-1992 passed by the Presiding Officer, U.P. Avas Evam Vikas Parishad Tribunal, Agra in L.A. Case No. 4 of 1991. The claimant Suit. Mithlesh has preferred appeal No. 560 of 1992 for further enhancement of the compensation amount as awarded by the Tribunal. U.P. Avas Evam Vikas Parishad has filed the appeal No. 179 of 1993 to set aside the judgment and decree of the Tribunal and to restore back the award passed by the Special Land Acquisition Officer.
2. A scheme known as Sikandra Grihsthan Evam Sarak Yojana, Agra was framed by U.P. Avas Evam Vikas Parishad, (hereinaiter called as the Parishad), as a housing scheme. A vast piece of land of village Kakareta Mustakil wherein the plot Nos. 900 area 1.19 acre, No. 912 area 0.14 acre and No. 913 area 1.6 acre, total area 3.19 acre equivalent to 10,87.18 sq. yards were acquired by issuing notifications notifications under Section 28 of U.P. Avas Evam Vikas Parishad Adhiniyam and under Section 32 of the aforesaid Adhiniyam. Notifications under Sections 28 and 32 of the said Adhiniyam correspond to Sections 4 and 6 of the Land Acquistion Act. The notifications are dated 4-4-1970 and 8-6-1980 respectively. The possession of the acquired land was taken over on 26-7-1983. The award made by the Special Land Acquisition Officer awarding compensation is dated 26-8-1985. A sum of Rs. 36,363.18 paise was determined as the amount payable to the land owner, namely, Mawasi Ram, besides solatium at the rate of 30% and interest etc. A total sum of Rs. 1,11,551.57 was found to be payable by the Special Land Acquisition Officer to the tenure holder, namely, Mawasi Ram as compensation towards the acquisition of the aforesaid three plots.
2.1 Being not satisfied by the said award, Mawasi Ram filed an application under Section 18 of the Land Acquisition Act for making the reference to the Tribunal and the matter was referred to the Tribunal for the purpose of determination of the market value of the land on the relevant date i.e. 4-4-1970. During the pendency fo the reference application, it appears that the present claimant, namely, Smt, Mithlesh, filed an application for her impleadment in place of Mawasi Ram which was allowed, on the ground that she has purchased the right to receive enhanced compensation from Mawasi Ram. Subsequent thereto on 12-4-1991 she filed a written statement claiming higher amount of compensation which was contested by the Collector, Agra by filing the written statement on 3-10-1991.
Before the tribunal the evidences, oral and documentary, were led by the parties concerned. Padam Singh P.W. 1 and Ibarat Ali Amin P.W. 2 were examined as witnesses on behalf of the claimant. By way of documentary evidence another award passed by the SLAO in respect of another village was produced to show the inadequacy of the compensation amount awarded by the SLAO on behalf of the claimant. Prakash Chandra Jain, Lekhpal was examined on behalf of the State of U.P. as D.W. 1 as also a copy of award subject matter of reference was filed by way of documentary evidence. The reference court on the basis of the award of the SLAO with respect to a different village, namely, Khatena Chak Dakhili, enahanced the compensation amount to Rs. 3/- per sq. feet as against 0.37 paise per sq. feet (Rs. 3.34 sq. yard) awarded by the SLAO. The reference court has also found that the land in question is of better quality, therefore, it would fetch higher price than the land situate in village Khatena Chak Dakhili.
Feeling aggrieved by the aforesaid award of the Tribunal, the claimant as well as the Parishad have preferred the above appeals. These two appeals were heard together and are being disposed of by a common judgment as was agreed by the learned Counsel for the parties also.
Sri Srikant, Advocate for the Parishad has raised the following points in support of the appeal.
Firstly, the award of the Tribunal is vitiated as no notice of the reference proceedings was given to the Parishad, which according to him, is mandatory requirement in view of Section 50(2) of the Land Acquisition Act. Secondly, lack of material and relevant evidence before the reference Court to enhance the compensation amount and interfere with the award of me SLAO. The compensation amount, according to him, assessed by the Tribunal on the basis of another award (paper No. 30-C) of a different village, cannot form the basis of the enhancement of compensation amount of the land in question. The sale deeds of the same village, namely, Kakareta Mustakil being available as they find mention in the award of the SLAO, the reference court should have considered those sale deeds before interfering with the award. Elaborating the argument it was submitted that the award bf the SLAO itself has evidentiary value for the purpose of determination of the compensation amount of the land in question and, therefore, even if those sale deeds which find place in the award having not been filed, the finding recorded by the SLAO is binding on the Tribunal. The oral admission of DW 1 could not bind the Parishad as he was not a witness of the Parishad. In substance the argument is that the proceedings before the reference court are akin to the appellate jurisdiction and consequently, the Tribunal was under a legal obligation to meet the reasoning as recorded by the SLAO in his award before allowing the reference.
3. Sri K.C. Jain and Smt. Sunita Agrawal, Advocates, on the other hand, submit that the Tribunal was not justified in restricting the compensation amount at Rs. 3/- per sq. feet, having it found that the land in question is of better quality than the land of village Khatena Chak Dakhili. Oral deposition bf D.W. 1 was referred in the argument to show that the defence witness has accepted that the market value of the land in question is two to three times higher than the land of village Khatena Chak Dakhili and the compensation amount should be awarded accordingly. They submit that in the present appeal No. 560 of 1992, for enhancement, the compensation amount has been claimed at the claimed at the rate of Rs. 5/- per sq. feet instead of Rs. 3/-. It was also submitted that the award (paper No. 30-C) which relates to the land of village Khatena Chak Dakhili is relevant and admissible evidence and the same was validly relied upon by the Tribunal. Further enhancement of the compensation amount was pressed by them.
4. Considered the respective submissions of the learned Counsel for the parties. The following two points fall for determination in the appeal:
(1) whether any notice as required under Section 50(2) of the Land Acquisition Act was given to the Parishad and its effect on the proceeding?
2) What is the correct amount of compensation to which the claimant is entitled to receive.
5. Taking the first point first, the learned Counsel for the Parishad invited the attention of the Court to the order sheet of the Tribunal. A bare perusal of the order sheet would show that on 9-12-1991 issues were framed. Thereafter on the next date i.e. 3-1-1992 statement of Padam Singh P.W. 1 was recorded and the case was adjourned. An application (paper No. 4-C) under Section 50(2) of the Land Acquisition Act to issue notice to the Parishad through its Commissioner at Lucknow was filed and allowed and the notices were directed to be issued by the Presiding Officer on that very date. Evidence of Ibarat Ali Amin was also recorded and the claimant's evidence was closed. On 17-2-1992 the statement of D.W. 1 Prakash Chandra Jain was recorded and the evidence in the case was closed. From the order sheet, it appears that thereafter the case was adjourned on number of dates for one reason or the other. The order sheet dated 17-12-1992 rcords that no evidence on behalf of the State of U.P., in rebuttal, was filed. The service of notice on the Commissioner of the Parishad was held sufficient and the arguments were heard in part and for the remaining argument next date i.e. 24-7-1992 was fixed. The submission of learned Counsel for the appellant, on the basis of the above order sheet, is, that the entire proceeding was conducted behind the back of the appellant. The evidence was recorded and was closed without waiting for the return of the notice. The submission is that in this view of the matter, it cannot be said that a proper opportunity of hearing was afforded to the appellant and the appellant being a necessary party, the judgment of the court below is vitiated.
In reply, the learned Counsel for the claimant respondent does not dispute the above factual averment as borne out form different dates of the order sheet. However, he submits that no prejudice had been caused to the appellant by not impleading it as a party in the array of the reference application. That is the reason, he submits, why no such grievance has been raised in the memo of appeal specifically. Such grievance is being raised for the rise time in the arguments.
6. Considered the respective submissions of the of the leaned counsel for the parties and perused the record. The memo of appeal contains as many as 18 grounds. In none of the grounds, a grievance to the above as argued has been raised by the appellant that the notice issued to the Housing Commissioner was not received or served. Also no grievance has been raised in the memo fo appeal that any prejudice has been caused to the appellant or the appellant could not produce the relevant evidence to oppose the enhancement of the compensation over and above as was awarded by the SLAO. Ground No. 6 is the only ground which could be pointed out by the appellant's counsel on this issue. In the said ground only this much has been stated that the judgment given by this Court in the case of Smt. Gyan Dei was not final and review application has been filed therein which is pending.
7. It may be recalled that the reference of the judgment of Smt Gyan Dei also finds place in para-32 of the judgment under appeal. A reading of para-32 would show that the judgment in the case of Smt. Gyan Dei was referred in connection with the question of grant of solatium at the rate of 30% instead of 15% as also the effect of the amendment made by the Act No. 68 of 1984 in the Land Acquisition Act and not on the point that the Parishad was a necessary party in the reference proceeding.
Evidently, a notice was issued to the appellant by the reference court which was held sufficient but no step was taken by the appellant to contest the claim before the reference court. Also the fact that no such grievance has been raised in the memo of appeal for non service of notice and non impalement of the appellant before reference court, the argument raised by the appellant that it was necessary party before the reference court is more of technical nature. It is apt to place on record that either in memo of appeal or during the pendency of the appeal (about 14 years) and in the course of argument it was not whispered that the appellant wants to lend any evidence to rebut, dislodge or refute the claim of the respondent. Non impleadment of the appellant as party in the reference proceedings, on the facts of the present case, is a formal defect and does not affect the merits of the case and in view of principle laid down in Section 99 of CPC, I find no substance in me said argument of the appellant's counsel and the same is hereby rejected.
8. Now I take up the point No. 2 which is more vital issue. The question is at whar rate the claimant respondent is entitled to get the comensation for acquisition of the land. The land comprising in Khasara Nos. 900, 912 and 913 total measuring 3 bigha 19 biswa equivalent to 10,87-18 sq. yards of village Kakareta Mustakil is involved in the present case. The relevant date for the purpose of determination of compensation is 4-4-1970 when a notice under Section 28 of U.P. Avas Evam Parishad Adhiniyam which corresponds to Section 4 of the Land Acquisition Act was issued. The SLAO awarded the compensation at the rate of 3.34 per sq. yard (or Rs. 0.37 per sq. feet), solatium at the rate of 30%, additional compensation at the rate of 12%, the interest under Section 34 of the Land Acquisition Act totaling a sum of Rs. 1,11,551.37. The land at the relevant time belonged to one Mawasi Ram who by means of sale deed dated 10-7-1968 had purchased it. During the pendency of of the reference proceeding, the right to receive the enhanced amount of compensation was purchased, as admitted by the learned Counsel for the respondent, for a sum of Rs. 200,000/-. Consequently, the name of Mawasi Ram was deleted from the array of the parties and in his place the present respondent was substituted.
9. Before the reference court the claimant, as noted above, examined two witnesses P.W. 1 and P.W. 2. A copy of the award being paper No. 30-C in respect of a different village namely Khatena Chak Dakhili was filed by way of documentary evidence. In reply the State of U.P. examined one witness as D.W. 1 and filed copies of the award under reference and of one sale deed. This is the total state of affairs of the evidence led by the parties before the reference court.
10. Sri Srikant, learned Counsel for the appellant strenuously submits, on the merits of the case, that the reference court has placed heavy reliance on the statement of D.W. 1 which is not binding on the present appellant as he was not the appellant's witness. He also urged that the basis of the award of the reference court is the award (paper No. 30-C) of village Khatena Chak Dakhili. The said award cannot legally form the basis for enhancement of the compensation amount. The contention is that when the sale deeds of the village in question arc available, it was not open to ignore the sale deed and fall back on the award of the other villages. Much emphasis was laid by him that it was incumbent upon the reference court to consider the sale deeds which were referred and relied upon by the SLAO in the award. Without making any adverse comments on them, he submits that the reference court was not justified in setting aside/modifying the award of the SLAO.
11. The learned Counsel for the claimant respondent, on the other hand, submits that the land in question was of better quality and was more proximate of the road. The witness of the State of U.P., D.W. 1 has also accepted the position that the quality of the land of village Kakareta Mustkil is f inferior quality than the land of village Khatena Chak Dakhili. He submits that the relevant question is the question of comparability of two lands and the village boundaries are relevant for revenue purposes only. He prayed further enhancement of the compensation amount and claimed that it should be fixed at Rs. 5/- per sq. feet instead of Rs. 3/-.
12. The learned Counsel for the claimant respondent referred a large number of cases to show that in determining the market value of the land for compensation purpose certain amount of guess work is necessarily involved. There are various recognized methods to find out the market value of the land and it is open to adopt one or more than one in a given case.
13. Market value of a land is the price which a willing buyer is prepared to pay and a willing seller is ready to accept. The Apex Court in the case of Chimanlal Hargovinddas v. SLAO Poona and Anr. AIR 198 SC 1652 has considered various factors to be taken into account while considering the question of determination of market valued of the land with reference to the case under the Lnd Acquisition Act and laid down the following factors which should be there in the mind of the refernce court while disposing of a reference:
Determined as on the crucial date of publication of the modification under Section 4 of the Land Acquisition Act (dates of Notifications under Sections 6 and 9 are relevant).
2. The determination has to be made standing on the date line of valuation (date of publkication of notification under Section 4) as if the valuer is a hypothetical purchaser willing to purchase the 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.
3. 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.
4. Only genuine instances have to be taken into account. (some times instances are rigged up in anticipation of acquisition of land).
5. 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 a higher price on account of the resultant improvement in development prospects.
14. In State of Masdras v. A.M. Manjan and Anr. it has been held that the court can take notice of award of a different case provided there are material to show that there is reasonable proximity in the comparable land. It has been further held that the award given by the Collector are at least relevant and they may be in the nature of admission with regard to the value of land on behalf of the State and if the land involved in the awards is comparable land in the reasonable proximity of the acquired land, the rates found in the said documents would be a reliable material to afford a basis to work upon for determination of the compensation on a later date. It was specifically held that the awards cannot be dismissed as inadmissible for the purpose of determination of the compensation.
15. In Printers House Pvt. Ltd. v. Mst Saiyandan and Ors. the Apex Court has held that where there is evidence of sales or awards of land, it is preferable to rely them in preference to other recognized methods of valuation of land such as 'Capitalisation of Net Income Method' or "Expert Opinion Method" for determining the market value of the acquired land. Comparable Sales Method is the most favoured method. Further in para-8 of the report it has been held that what applies to comparable sale, equally applies to comparable award, if such award is relied upon as that furnishing a price basis for determination of the land, cannot be disputed. The relevant portion is reproduced below:
...What applies to comparable sale, equally applies to comparable award, if such award is relied upon as that furnishing a price basis for determination of the market value of the land, cannot be disputed. Thus, the best evidence for determining the market value of the acquired land or a portion thereof or any other land which could be favorably compared with the acquired land. The same would be the position when the available evidence relates to land covered by a previous award.
16. Ultimately, in para-13 the Supreme Court did not approve the judgment of the High Court when from the evidence it is established that the different plots of land acquired vary greatly so as to their size, shape and location.
17. Evidentiary value of an award given by the Collector has been considered in depth in Major Pakhar Singh Atwal and Ors. v. State of Punjab and Ors. 1995 Supp (2) SCC 401. In this case it has been held that though the award may be a material evidence to be looked into, but the sale transactions referred to therein cannot be relied upon inplicitly, if the party seeding enhancement resists the claim by adducing evidence independently before the court or the tribunal. In this very case it was held that if the claimants intend to seek higher compensation to the acquired land, the burden is on them to establish by proof that the compensation awarded by the SLAO is inadequate and they are entitled to higher compensation.
On the basis of the above decisions, there appears to be no substance in the argument of the learned Counsel for the appellant that the award (paper No. 30-C) with respect to village Khatena Chak Dakhili was not admissible in evidence or at any rate it could not have been relied upon. A bare perusal of the said award would show that the notification corresponding to Section 4 of the Land Acquisition Act was issued by the State Government in respect of the two villages on the same day i.e. 4-4-1970. The purpose of acquisition of the land is also the same i.e. in both the cases that land was acquired for U.P. Avas Evam Vikas Parishad. By the said award an area of 9 bigha 16 biswa was acquired for Sikandra Grihsthan Evam Sarak Yojana. After making a deduction of 33% on account of largeness of the area, the SLAO by his award dated 31.3.1986 determined the market value at Rs. 1.98 per sq. feet. Obviously, this award was subsequent to the award made by SLAO in the case on hand which is dated 26-8-1985.
18. At this stage the judgment in the case of The Special Land Acquisition Officer and Anr. v. Sri Siddappa Omanna Tumari and Ors. , heavily relied upon by the learned Counsel for the appellant, may be noticed. A vast piece of land measuring 300 acres was acquired by the State Government. The State Government negotiated with the owners of the land and a price was arrived at with the owners in respect of 240 acres of land. The SLAO determined the market price accordingly in respect of the entire land. Since the owners of the remaining 60 acres of land did not agree with the State Government in the matter of amount of compensation to be received for their land, the reference was made and the reference court enhanced the compensation amount which was further enhanced court enhanced the compensation amount which was further enhanced by the High Court. The argument on behalf of the SLAO was that the agreement entered into by other owners with respect to 240 acres of land was a relevant evidence to show what was the market value on the relevant date. In this fact situation, the Apex Court was of the view that agreed price for 240 acres is a relevant guideline to fix the price of the remaining land accordingly. The observation made by the Apex Court should be understood in the fact situation as they existed there. It cannot be read out of context. In the case on hand there is no evidence to what is the price of a part of the acquired land, admittedly. The said judgment is, therefore, distinguishable and is not to the facts of the present case.
19. The next limb of the argument is that the SLAO had considered various sale deeds qua the land of the village in question and it was incumbent upon the Tribunal before interfering with the award to examine the genuineness and validity of those sale deeds before ignoring them. In other words, much emphasis was laid that reference court was duty bound to meet the reasonings given by the SLAO in the award in question. The said argument is devoid of any substance and proceeds in ignorance of the legal position that the proceedings before the feference court are in the nature of original proceeding akin to suit before a civil court. It is an acknowledged position that a reference court while exercising a jurisdiction under Section 18 of the Land Acquisition Act does not act as a court of appeal or revision. The determination of the compensation amount by the SLAO is in the nature of offer made by him on behalf of the State Government. If the said offer is not acceptable to an owner, the burden lies upon him to prove as to what was the market value of the land in question on the relevant date. The only rider is that the reference court cannot fix the market value less than the one fixed by SLAO. The burden, as held by numerous judicial pronouncements of the Apex Court as also in the case of Chimanlal Hargovinddas (Supra) to prove what was the market value of the land, lies on the claimant.
20. It may be recalled that copies of various sale deeds which find mention in the award were not produced as evidence by the State of U.P. or Parishad for the reasons best known to them. Only one sale deed was relied upon which was rejected even by the SLAO. In absence of filing of copies of sale deeds before the reference court by the respondent, no fault can be found in the order of the reference court for non-consideration of the sale deeds, referred in the award which was questioned before the tribunal.
21. Now the only question survives is what was the market price of the land in question on the relevant date. To show the inadequacy of the amount offered by the SLAO, the claimant examined two witnesses P.W. 1 and P.W. 2 by way of oral evidence and produced copy of one award (paper no. 30-C). P.W. 1 Padam Singh, pairokar of the claimant states that he has seen the land of village Khatena Chak Dakhili as well as the land in question. The land in question is nearer to road, namely, Sikandra- Bodala road is, 3-4 furlongs away from the land in question. The land in question is more valuable by 3-4 times than the land of Khatena Chak Dakhili. In cross examination he states that Abadi is there at some distance. Agra - Mathura road is at a distance of 4-5 furlongs from the land in question. Geeta Mandir Post Office is at Agra Mathura Road since before 1970. Also abutting the road there is an Officers Colony since before 1970. The Officers Colony begins at about 4-4-1/2 furlongs from the land in question. The land was under municipal limit much prior to the year 1970. In the cross examination he states that the land in between Bodala road and the land in question was lying vacant wherein agricultural operation was being done. He denied the suggestion in the cross examination that earlier in the year 1970 Bodala road was a kachha road. The statement of this witness was recorded on 3-1-1992 i.e. there is time lag of about 21 years or more. Similarly, the statement of another witness Ibarat Ali was recorded on 7-1-1992. He has stated that the land of Khatena Chak Dakhili was not even rather it was uneven. He also corroborates the statement of P.W. 1 that the land in question was in the municipal limit much prior to the year 1970. However in cross examination he pleads ignorance that he cannot say for what purpose the land in question was used. He also stated that he is not in a position to state as to whether the land in question was uneven at the time of acquisition. He admits that inspection was made for the first time in the year 1986. He was present at the time of inspection made by the SLAO. It may be recalled that this witness is Amin since the year 1980. He states that he is not aware as to for what purpose the land in question was put under acquisition in the year 1970. The land was lying vacant at the time of inspection i.e. in the year 1986. In further cross examination this witness has stated that towards eastern side of Khatena Chak Dakhili there is Abadi of Nagla Ajeeta at a distance of one Km. Mental hospital is also at a distance of one Km. and the Medical College is 1-1/2 Km. The said portion of the statement is on page-70 of the paper book. As against the above, Prakash Chandra Jain Lekhpal was examined as D.W. 1 on behalf of the State of U.P. who has deposed that he has not seen the plot in question. He states that the road which leads to village Kakreta Mustkil is about 2-3 furlongs away from the land in question. There are 8-9 fields in between. Sikandra-Bodala road is at a distance of 2-2-1/2 furlongs from the land in question and in between there are various fields. Bodala road is towards southern side of Khatena Chak Dakhili which is at a distance of about 1/2 furlong. Agra-Mathura road is about 6 furlongs away from the land in question and there are agricultural fields in between them. The land in question was used for agricultural purposes. The surrounding lands were also used for agricultural purpose. There was no Officers Colony or houses at that time. Officers Colony is about 2-3 Kms away from the land in question.
22. From the statement of this witness, it is evident that the land of village Khatena Chak Dakhili is not similarly situated as the land in question. The land of village Khatena Chak Dakhili, therefore, cannot be compared with the land in question. Moreover the statement of P.W. 2 Ibarat Ali in cross examination itself shows Mental Hospital and Medical College adjoins each other and the village Khatena Chak Dakhili is about 1-1-1/2 Km away and the land in dispute is further far away is sufficient to hold that the land of village Khatena Chak Dakhili is not similarly situate as the land in dispute is.
23. Before appreciating the oral evidence led by the parties, it must be remembered that the evidence was recorded after about 21 years of the relevant date. Even the witnesses produced by the claimant have admitted that at the time of inspection which took place in the year 1986, the agricultural operations were being carried on in the adjoining lands. The crucial issue is as to what was the situation in the year 1970 when the land was acquired. It is not safe, in the absence of any corroborating material, to rely upon the lip movement of the witnesses on such a crucial issue. It is admitted even by the claimant's witnesses that most of the land was lying vacant in the year 1986 i.e. after 16 years of the relevant date. This itself is a very important factor which has been completely lost sight by the court below. Even otherwise also, none of the witnesses have stated that there was any Abadi around the land in question. What they have stated is that the Officers Colony etc. which has been denied by D.W. 1 is few furlongs away from the land in question.
24. It is also a relevant consideration that earlier the land was used for agricultural purposes. Admittedly. D.W. 1 Prakash Chandra Jain who is Lekhpal has categorically stated that during his period neither the Officers Colony nor houses were built and presently the Officers Colony is about 2-3 Kms. away from the land in question. Similarly, he states that Kiran Hotel is about 3 furlongs away from Sikandra towards Agra side. The hotel could not run successfully and was closed and was converted into an office. He also states that there was no factory for manufacturing pipe nor there was any Colony of Bharat Store or its houses. All these factors are relevant for consideration of the market value of the land in question and were not at all taken into account by the reference court.
25. It was incumbent upon the claimant respondent to produce evidence to prove by cogent and reliable evidence the distance and the existence of the Officers Colony and houses etc in the year 1970. It appears that this aspect of the case has slipped from the notice of the court below. It proceeded to determine the market value of the land assuming that all these things were in existence in the year 1970, in the absence of any cogent or relevant material.
26. Panna Lal Ghosh and Ors. v. Land Acquisition Collector and Ors. AIR 2004 S.C. 1179 is an authority for the proposition that in determining the price of a piece of land on comparable method basis, an award passed in another acquisition proceedings which relates to 3 feet higher than the land acquired in question, the award passed for the said land cannot be relied upon. Relevant paras 6 and 7 are reproduced below:
6. Accordingly, the appellants had produced before the High Court a certified copy of an award passed by the learned LA. Judge in another acquisition proceedings. In this case, the land was 150 ft. away from the lands involved in the present proceedings. In those proceedings, the learned LA. Judge had awarded Rs. 1 Lakh per acre as compensation. This was sought to be relied on by the appellants. The High Court chose not to rely on this document as no evidence was led to show that both lands are similar in nature having similar potentiality.
7. While determining the market value of land, it must be with reference to a piece of land which is comparable to the present lands being acquired. It must be similar in potentiality and nature. The document which the appellants seek to rely on relates to land which was acquired for the purpose of Assam-Agratala Road. It was 3 feet higher than the acquired land. Further, the two lands were not proved to be comparable in nature and potentiality. Therefore, the High Court is right in not relying on the said document and disallowing the claim for enhancement for compensation.
27. In Kanwar Singh and Ors. v. Union of India it has been held that contiguity of village could not be by itself be sufficient to draw an inference of similarity in character of the lands in awarding the compensation. Topography, potentiality and advantages attached to and available to the comparable land should be taken into consideration.
28. In Union of India v. Pramod Gupta AIR 2005 3708 it has been held that judgment and awards of the same village or of neighbouring village have only a evidentiary value. The areas of the land, the nature thereof, advantages and disadvantages therein amongst others would be relevant factors for determining the actual market value of the property. Relevant para-24 is reproduced below:-
24. The best method, as is well-known, would be the amount which a willing purchaser would pay to the owner of the land. In absence of any-direct evidence, the court, however, may take recourse to various other known methods. Evidences admissible therefor inter alia would be judgments and awards passed in respect of acquisitions of lands made in the same village and/or neighbouring villages. Such a judgment and award in absence of any other evidence like deed of sale, report of expert and other relevant evidence would have only evidentiary value.
29. In Land Acquisition Officer Kammarapally Village v. Nookala Rajamallu and Ors. AIR 2004 SC 1031 and V. Hanumantha Reddy v. Land Acquisition Officer AIR 2004 SC 1185 it has been held that while fixing the value of land in question deduction for development etc. was to be made from value indicated in sale deed relied upon.
30. The court below proceeded on the assumption about the existence of modern amenities though not available on the disputed land but are available in the surroundings. The availability of modern amenities in the surroundings may be one aspect of the matter. The relevant aspect is their existence on the relevant date i.e. in the year 1970. The court below is not justified in making its observation in para-16 of the judgment that from perusal of deposition of D.W. 1 it becomes crystal clear that existence of Abadi, Colony and Road etc. as put forth by the claimant's witnesses was admitted by D.W. 1 himself except some variation, in the deposition. The said observation is contrary to the record. D.W. 1 has categorically stated that all lands including the disputed land were used for agricultural purposes and Officers Colony or the houses were not in existence during his period. The Officers Colony is away at about 2-3 Kms. from the land in question, presently (Officers Colony Vivadit Jamin Par 2-3 Furlongs Fasaley Par Hogi). He has further further denied the existence of pipe factory or the Colony of Bharat Stores. In the cross examination he states that the plots of Officers Colony were carved out much prior to the year 1970. The reference court has not said a word to discredit the above statement of D.W. 1, which is categorical and in absence of any convincing evidence should be accepted to be correct.
31. It held that since under that award the compensation has been awarded at the rate of Rs. 1.98 per sq. feet, as per own admission of the opposite party's witness D.W.I who has stated that the land in question was more valuable i.e. 2 or 2-1/2 times than the land of Khatena Chak Dakhili, fixed the compensation at the rate of Rs. 3/- per sq. feet. The question now boils down to this as to whether the reference court was justified in so determining the compensation. Already demonstrated above, the said award 30-C, cannot be treated as exemplar and be compared with the land in question as the two lands were not proved to be comparable in nature and potentiality.
32. The claimant has sought the enhancement on the basis of the oral statement of P.W. 1, P.W. 2 and D.W. 1. No document has been filed to show that the land of village Khatena Chak Dakhili was similarly situated as that of the land of the village in question. These witnesses are not valuation expert and it is not safe to determine the compensation amount on the oral testimony when the documentary evidences, though available, were not produced.
33. The only basis on which the argument was built up by the claimant's counsel is that the disputed land is more valuable as admitted by the witness D.W. 1, it should be enhanced accordingly. At this stage, it is apt to notice the alleged admission of D.W. 1, appearing on page-77 of the paper book, referred by the counsel for the parties. The witness has stated that the land in question is nearby Abadi and at higher level. Its value was 2-2-1/2 times than the land of Khatena Chak Dakhili. The said statement is the bone of contention between the counsel for the respective parties. The said statement, according to me, should be read in the context and not otherwise. Indisputably, except the above, there is no cogent material on record to corroborate that the land in question was more valuable than the land of Khatena Chak Dakhili. What weight should be attached to the said statement is also a relevant factor to be borne in mind.
34. It is not a case of the claimant respondent that the sale deeds of the village in question are not available. Why no sale deed was filed by the claimant respondent in support of her claim for enhancement, could not be satisfactorily replied by the counsel. Determination of the compensation on the basis of expert opinion or on the basis of oral evidence is not always a safe method specially when the transactions of genuine sale deeds are available. The claimant respondent is the purchaser of the right for further enhancement of the compensation amount. The said right may be transferable but this does not absolve the transferee not to produce the best available evidence.
35. In Printers House Pvt. Ltd. (Supra), it has been held that "comparable Sales Method" is the most favoured method. Evidence of prices fetched by sales of similar to the acquired land will be taken by court to be the price which a willing purchaser would have paid for the acquired land, if the same would have been sold in the market. But before applying the comparable sale method it should be established that there are similarties in 'sizes', 'shape' and 'location'. Para 13 is reproduced below:
13. Thus, when the evidence in the case clearly established that the different plots of lands of three claimants acquired, varied greatly as to their sizes, shapes and location (situation) they could not have fetched a uniform rate, if the same had been sold in the open market by each of the claimants. That being the correct position, two learned Judges of the High Court did err on a principle of valuation applicable to valuation of different types of acquired land, when they by their judgments under present appeals determined the market value of almost all the acquired plots of lands at a uniform rate, on the wrong assumption that all the five plots of acquired lands would have fetched the same rate if sold in the open market.
The claimant respondent has sought to reply on the award 30-C of village Khatena Chak Dakhili to determine the market value of the land lying in Kakareta Mustakil. Village Khatena Chak Dakhili is not an adjoining to village Kakareta Mustakil, indisputably.
36. From the inspection memo dated 29-4-1985 made by the SLAO it is apparent that the land in question is near Agra City and Bodala village. No construction or trees were found at that time. In this situation how far it the award of Village Khatena Chak Dakhili which is not adjoining village can be relevant?
37. Learned counsel for the claimant respondent submits that the village boundaries are relevant for the purpose of revenue records and an exemplar cannot be rejected outrightly simply because it is of a different village. However, it does not mean that the award of any village can be treated as exemplar. In this connection reliance was placed on Collector, Varanasi v. Ekram Shah (Supra) wherein it has been held that artificial barriers like village boundaries cannot be given undue importance because the land in any particular area or in close proximity normally possesses similar potentiality and market value.
38. Even this case is not helpful to the claimant respondent on account of the fact situation of village Khatena Chak Dakhili and village Kakareta Mustakil. There is no evidence worth the name to show that the land of these villages are similarly situate and it has the same market value.
39. In this view of the matter, the court below was not correct in placing reliance upon the award 30-C to determine the market value of the land in question. The said award cannot be treated as exemplar in absence of the material to show that the land under the said award was similarly situated as of the land in question.
40. Another aspect which is equally important is for how much amount the said right was sold. Sri K.C. Jain learned Counsel for the claimant respondent states that the said right was purchased by the claimant respondent by means of a sale deed dated 10-10-1990 for a sum of Rs. 20,000/- only. The reference court has made an enhancement in compensation amount by 9 times which is not a small figure looking to the fact that the claimant respondent herself has valued it at Rs. 20,000/- only. The court is also conscious of the fact that while purchasing the said right, the time and money factor involved in litigation was also one of the considerations in the said transaction.
The other aspect of the case is that the tenure holder, as has come on record, himself had purchased the land in question by means of a sale deed dated 10-7-1968 i.e. about 1-1/2 year prior to the relevant date. Why the copy of the said sale deed has not been placed on record, could not be answered. The said sale deed would be the best evidence to determine the market value of the land in question.
41. The proceedings before the reference court are in the nature of original proceedings of a suit before a civil court and it was bounden duty of the claimant respondent to discharge the said burden satisfactorily on the basis of the material on record. There is no convincing and cogent evidence to show that the compensation awarded by the SLAO was in any manner low or ridiculous.
42. Taking into consideration the entire facts and circumstances of the case, the reference court was not justified in further enhancing the compensation amount and fixing it at Rs. 3/- per sq. feet on the basis of the award (30-C). It is for the claimant respondent to prove her claim for enhancement by producing the cogent evidence. It was not open to her to claim enhancement on the basis of oral evidence and withhold the documentary evidence. Withholding of relevant evidence which was in possession of the claimant respondent i.e. sale deed dated 10-7-1968 in favour of her predecessor in interest as also the other sale deeds around the date of relevant notification are the circumstance which weigh heavily against her. The award of the reference court is, therefore, cannot be sustained and the same is set aside.
No other point was pressed.
In the result the appeal No. 179 of 1993 is allowed with costs. The appeal No. 560 of 1992 filed by the claimant is hereby dismissed with costs.