Punjab-Haryana High Court
Akash Co-Op. Group Housing Society Ltd vs State Of Haryana And Anr on 14 November, 2017
Author: Arun Palli
Bench: Arun Palli
RFA-10326-2014 (O&M) 1
& connected matters
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
RFA-10326-2014 (O&M)
Date of Decision: November 14, 2017
The Akash Co-op. Group Housing Society Ltd.
...Appellant
Versus
State of Haryana and another
...Respondents
and other connected matters, i.e.
Filed By RFA Nos. (O&M) Year
Claimant/ 2645, 3074, 3075 & 3925. 2007
Landowners 274 & 5389 2008
2891 & 3210. 2009
4914 to 4918, 4562, 5114 & 5115. 2010
2047 to 2060, 2882, 3476, 4140, 6061 to 6067, 7527 to 2011
7533 & 7887.
477 to 492, 510, 700 to 702, 744, 745, 853 to 856, 863 to 2012
865, 924, 1119, 1120, 1721 to 1723, 4075, 4076, 4658 to
4665, 4839, 5340 to 5344, 5379, 5380, 5397, 6295, 6553,
6907 to 6911, 6959 to 6996, 7139, 7240, 7496 & 7497.
237 to 299, 425, 426, 463, 1027 to 1029, 1046, 1047, 2013
1110, 1111, 1206, 1213, 1214, 1350 to 1354, 1776, 1777,
1787, 1948 to 1951, 1965, 1966, 1968, 2210, 2211, 2312,
2516 to 2519, 2543 to 2548, 2603, 2762, 2763, 2786,
2787, 2817, 2818, 3505, 3914 to 3917, 3982 to 3989,
4014, 4015, 4133 to 4136, 4302, 4327, 4328, 4331, 4341,
4359, 4360, 4366, 4392, 4428, 4435, 4641, 4660 to 4662,
4665 to 4669, 4846 to 4849, 4968 to 4970, 4974, 5016 to
5023, 5216, 5217, 5467 to 5469, 5670, 5838, 6107 to
6110, 6118 to 6125, 6138 to 6141, 6168, 6170, 6344 to
6350, 6412, 6413, 6431, 6866 & 7105.
36, 392, 844, 845, 1106, 1491, 2179, 2183 to 2186, 2280, 2014
2281, 2321 to 2323, 2430 to 2433, 2794, 2795, 2912,
5036 to 5038, 5262, 5423, 7819, 7820, 8109, 8667, 8751
to 8753, 8773, 9139, 9708, 9742, 10067 & 10328.
313, 882 & 5374. 2015
89 to 92, 166, 169, 359, 1128, 1339 & 4351. 2016
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RFA-10326-2014 (O&M) 2
& connected matters
State of 4448 2007
Haryana 2869 2012
Shri Mata 2176 to 2178 2010
Mansa Devi
Shrine Board
Union of 4445 & 4446 2014
India
CORAM: HON'BLE MR. JUSTICE ARUN PALLI
Present: For Claimant/Landowners
Mr. G.S. Punia, Sr. Advocate with
Ms. Harveen Kaur, Advocate.
Mr. Adarsh Jain, Advocate.
Mr. Adish Gupta, Advocate.
Mr. Ajay Kaushik, Advocate.
Mr. Ashok Kumar Khubbar, Advocate.
Mr. B.S. Guliani, Advocate.
Mr. Bhag Singh, Advocate.
Mr. Bimal Maini, Advocate.
Mr. D.K. Singal, Advocate.
Ms. Ekta Thakur, Advocate.
Mr. J.K.Chauhan, Advocate.
Ms. Kamalpreet Kaur, Advocate.
Mr. Kul Bhushan Sharma, Advocate.
Mr. Kunal Mulwani, Advocate.
Mr. M.K. Chouhan, Advocate with
Mr. Shoaib Khan, Advocate.
Mr. P.C. Dhiman, Advocate.
Mr. Parshotam Lal Singla, Advocate, with
Mr. Rajan Gupta, Advocate.
Ms. S.K. Tripathi, Advocate.
Mr. Sandeep Dower, Advocate.
Mr. Sandeep Laura, Advocate.
Mr. Sanjay Jain, Advocate.
Mr. Sonu Giri, Advocate.
Mr. Sudhir Paruthi, Advocate.
Mr. Sushil K. Sharma, Advocate for
Mr. M.L. Sharma, Advocate.
Mr. Udit Garg, Advocate.
For State of Haryana
Mr. Sudeep Mahajan, Additional Advocate General, Haryana,
Mr. Shivendra Swaroop, Assistant Advocate General, Haryana, and
Ms. Safia Gupta, Assistant Advocate General, Haryana
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RFA-10326-2014 (O&M) 3
& connected matters
For Union of India
Ms. Ranjana Shahi, Sr. Panel Counsel for U.O.I.
Ms. Gunneet Kaur, Advocate; and
Ms. Monika Arora, Advocate.
For Shri Mata Mansa Devi Shrine Board
Mr. Pritam Saini, Advocate, with
Ms. Monika Arora, Advocate.
ARUN PALLI, J. (ORAL)
Vide this order and judgment, I shall decide a batch of 416 appeals of which 409 appeals have been preferred by the claimant/landowners; 2 appeals by the State of Haryana; 3 appeals by Shri Mata Mansa Devi Shrine Board; and the rest 2 appeals are filed by the Union of India. Although, all these appeals arise out of four separate acquisitions, but as the facts as also the questions that require determination in these appeals are common, these are being decided by a common judgment.
The facts that are required to be noticed are limited. Vide notification dated 29.09.1997, issued under Section 4 of the Land Acquisition Act, 1894 (for short 'the Act'), an area measuring 5 acres 4 kanals 3 marlas (H.B. No. 377), situated in village Bhainsa Tibba, Tehsil and District Panchkula, was sought to be acquired for Key Location Plan for the Central Government, Ministry of Defence. The Land Acquisition Collector assessed the market value of the acquired land at Rs.1,80,000/- per acre. Being aggrieved by the assessment as also the compensation awarded, the claimant/landowners filed objections under Section 18 of the Act, to the award rendered by the Collector. Resultantly, the dispute was referred to the Civil Court for determination of the true value of the acquired land. And, the Reference Court, on a consideration of the matter in issue, enhanced the 3 of 24 ::: Downloaded on - 09-12-2017 07:34:24 ::: RFA-10326-2014 (O&M) 4 & connected matters compensation to Rs.290/- per square yard.
Vide another notification, dated 16.03.1999, issued under Section 4 of the Act, a land measuring 482.17 acres, situated in village Saketri (H.B No.376), and an area measuring 140.59 acres, situated in village Bhainsa Tibba (H.B.No.377), Tehsil and District Panchkula, was sought to be acquired for development and utilization as residential, commercial, institutional, recreational in Sectors 1, 2, 3, 5B, 5C and 6, Mansa Devi Complex, Panchkula. The Land Acquisition Collector assessed the market value of the land, categorized as Chahi Abi-barani at Rs.9,00,000/- per acre, Banjar at Rs.5,00,000/- per acre and gair mumkin at Rs.2,60,000/- per acre. In the claims filed by the landowners under Section 18, the Reference Court enhanced the compensation to Rs.418/- per square yard.
Vide yet another notification, dated 02.06.1999, issued under Section 4, a land measuring 56 acres 6 kanals and 3 marlas, situated in village Bhainsa Tibba (H.B. No.377), Tehsil and District Panchkula, was sought to be acquired for development works, i.e. for providing amenities and facilities to the devotees of Shri Mata Mansa Devi Shrine Board, Panchkula. Final declaration under Section 6 was published on 29.05.2000. The Land Acquisition Collector assessed the value of the land, categorized as Chahi Abi- barani at Rs.9,00,000/- per acre, Banjar Qadim at Rs.5,00,000/- per acre and gair mumkin at Rs.2,60,000/- per acre. Again, in the claims made by the landowners under Section 18, the Reference Court enhanced the compensation to Rs.418/- per square yard.
And, vide notification of an even date i.e. 02.06.1999, issued under Section 4, a land measuring 4 kanals and 8 marlas situated in village Bhainsa 4 of 24 ::: Downloaded on - 09-12-2017 07:34:24 ::: RFA-10326-2014 (O&M) 5 & connected matters Tibba (H.B. No.377), Tehsil and District Panchkula, was acquired for development works, i.e., for providing amenities and facilities to the devotees by Shri Mata Mansa Devi Shrine Board. For, the nature of acquired land was gair mumkin, the Land Acquisition Collector assessed its value at Rs.2,60,000/- per acre. But again, in the claims made by the landowners under Section 18, the Reference Court enhanced the compensation to Rs.418/- per square yard.
Being aggrieved by the compensation awarded by the Reference Court, vide different awards, under the afore-indicated acquisitions, all the parties to the lis, i.e. landowners, State of Haryana, Shri Mata Mansa Devi Shrine Board and HUDA (beneficiaries of the acquisition), preferred appeals/cross-objections to this Court. And, vide a common order and judgment, dated 25.02.2009, rendered in RFA No. 3008 of 2008 (Smt. Poonam v. State of Haryana and another) and other connected matters, this Court set aside the impugned awards, for none of the parties had led any cogent or convincing evidence that could enable the Reference Court to determine the true or fair value of the acquired land. Resultantly, the matter was remitted to the Reference Court for re-decision.
On a reconsideration of the matter, the Reference Court vide award dated 24.04.2010, as regards the land measuring 56 acres 6 kanals 3 marlas, acquired vide notification dated 02.06.1999, while relying upon a sale deed dated 23.04.1997 (Ex.P79), assessed its value @ Rs.374/- per square yard. And to assess the value of the land, acquired vide notifications dated 02.06.1999 and 16.03.1999, the Reference Court relied upon its previous award dated 24.04.2010, and assessed its value vide awards dated 28.03.2011 and 31.10.2011, at the same rate i.e. Rs.374/- per square yard. However, the land, 5 of 24 ::: Downloaded on - 09-12-2017 07:34:24 ::: RFA-10326-2014 (O&M) 6 & connected matters acquired vide notification dated 29.09.1997, was evaluated in terms of the award dated 31.10.2011, but after applying a reverse cut @ 18% and a further deduction @ 10% owing to the location of the acquired land, its value was assessed @ Rs.276/- per square yard. And, that is how, as indicated earlier, the claimant/landowners and Union of India are in appeal before this Court. However, State has not chosen to file any appeal. But I am reminded to point out that RFA Nos. 2645, 3074, 3075, 3925 & 4448 of 2007; 274 & 5389 of 2008; 2891 & 3210 of 2009; 2176 to 2178 of 2010; 2869 of 2012; and 7819 & 7820 of 2014, were filed by the claimant/landowners, State of Haryana and Shri Mata Mansa Devi Shrine Board (beneficiary of the acquisition) against the previous awards, but for these appeals were not listed alongwith other bunch of appeals that were disposed of by this Court while remitting the matter, these continued to remain pending. And are, thus, being disposed of vide this judgment.
Learned counsel for the landowners assail the award, dated 24.04.2010, vide which the value of the land (56 acres 6 kanals 3 marlas) acquired vide notification, dated 2.6.1999, was assessed at Rs.374/- per square yard, particularly, for, the said acquisition was relied upon by the reference Court to evaluate the land acquired vide other three notifications, i.e. 02.06.1999, 16.03.1999 and 29.09.1997. It is contended that besides the other evidence, the landowners had also proved on record the sale deeds/sale instances Ex. P79 to Ex. P82 and Ex. P99 that were executed prior to the issuance of notification under Section 4, dated 02.06.1999, and whereby the land that also formed part of the same revenue estate, i.e. village Bhainsa Tibba, was alienated in the range of Rs.916/- to Rs.2,430/- per square yard. However, 6 of 24 ::: Downloaded on - 09-12-2017 07:34:24 ::: RFA-10326-2014 (O&M) 7 & connected matters the sale deeds Exs. P80 to P82 were ruled out of consideration, for, these were sale instances of built sites. Whereas the sale deed Ex. P99, dated 27.08.1997, which was a sale instance out of the acquired land itself was also ignored, for, the Reference Court was of the view that the said sale deed was got executed by the claimant-Subhash Chander at an exaggerated value to create evidence and claim higher compensation qua his other holding, which too was under
acquisition. It is contended that the finding recorded by the Reference Court is wholly perverse, for, the claimant-Subhash Chander did not own any other piece of land in the village and there was no such evidence on record. Therefore, value of the acquired land ought to have been assessed in terms of the sale instance Ex.P99. Further, in reference to sale deed, dated 23.04.1997 (Ex.P79), that was relied upon by the Reference Court to assess the value of the acquired land, it is contended that a 50% cut was applied, for, the said site was alleged to be a part of the abadi deh, whereas it indeed was located at a distance of 60 karams from the lal lakir. A reference in this regard is made to the testimony of Shri Sohan Lal, Halqua Patwari (PW11), examined in L.A. Case No. 223 of 2003 (Sucha Singh v. State), arising out of the notification of an even date i.e. 02.06.1999. Likewise, it is urged that even the statement of Ramesh Chand, Assistant Draftsman (PW12), examined in those proceedings, duly corroborated the above position. Still further, it is submitted that even the deduction @ 35% in the value of the land reflected in the sale deed Ex.P79, owing to the smallness of the area was also unjustified. For, the evidence on record proved that there was an all round development in the vicinity of the acquired land, and the entire area was under a rapid transition from being agriculture to semi urban/urban. That being so, it is submitted that the sale
7 of 24 ::: Downloaded on - 09-12-2017 07:34:24 ::: RFA-10326-2014 (O&M) 8 & connected matters instance of a larger chunk of land or a bigger area were hard/rare to come by. Thus, in the given situation, the reference Court ought not to have applied any cut. Accordingly, it is urged that the compensation awarded to the claimant/landowners is required to be suitably enhanced. And since the assessment made by the reference Court, as regards the land (56 acres 6 kanals 3 marlas) acquired vide notification, dated 2.6.1999, vide award, dated 24.04.2010, formed basis of evaluation of land acquired vide other three notifications i.e. 02.06.1999, 16.03.1999 and 29.09.1997, the compensation awarded to the claimants even in those proceedings shall have to be appropriately revised.
Per contra, Mr. Sudeep Mahajan, Additional Advocate General, Haryana, submits that even though the claimant/landowners had proved on record the sale deeds Ex.P79 to P82 and Ex.P99, which were the sale instances from the same village i.e. Bhainsa Tibba, but as no site plan was proved to depict the location of those sites vis-a-vis the acquired land, it could not be ascertained if those sites were even comparable to the acquired land. Thus, he asserts that the said sale deeds were required to be discarded outrightly. However, in the alternative, he submits that even if it is assumed that sale instances Ex.P79 to Ex.P82 could be taken into account, but as concededly those were built sites, the said sale deeds were rightly ignored by the Reference Court. Likewise, as regards the sale deed Ex.P99, he submits that the Reference Court had concluded that the said sale deed was not a genuine transaction, for it was got executed by one of the claimant, namely, Subhash Chander, to create evidence. Thus, was rightly discarded. And as to the sale instance Ex.P79, he submits for the said site was situated within the lal lakir of the village, 8 of 24 ::: Downloaded on - 09-12-2017 07:34:24 ::: RFA-10326-2014 (O&M) 9 & connected matters therefore, that was far more valuable than the acquired land. Thus, a deduction @ 50% in its value was wholly justified. Further, for the site that was alienated vide sale instance Ex.P79 was merely 12 marlas, a cut @ 35% owing to the smallness of the area could also not be taken exception to. Particularly, for the time gap between the execution of the sale deed dated 23.04.1997 and the notification under Section 4, dated 02.06.199, the claimant/landowners were also awarded 12% annual increase. Therefore, he submits that no further enhancement was/is feasible.
Ms. Ranjana Shahi, learned counsel for U.O.I. in RFA Nos. 4445 and 4446 of 2014, submits that the impugned award, dated 08.07.2013, was erroneous, for, to assess the value of the land, acquired vide notification dated 29.09.1997, the Reference Court had relied upon a subsequent acquisition i.e. award dated 31.10.2011, whereby value of the land was assessed in relation to a notification dated 16.03.1999. In the given situation, she asserts that true value of the land under acquisition could not be determined even by applying a reverse cut @ 50%. Further, she submits that although the land in the relied upon acquisition, acquired vide notification, dated 16.03.1999, formed part of the same revenue estate i.e. village Bhainsa Tibba, but was actually located at a prime location in comparison to the acquired land which was situated close to the State boundary and adjoined the cantonment area. Therefore, the relied upon acquisition or the sale instances, which are the basis of assessment or the compensation awarded, were incomparable to the land acquired vide notification dated 29.09.1997. Thus, she submits that the impugned awards are liable to be set aside.
I have heard learned counsel for the parties and perused the 9 of 24 ::: Downloaded on - 09-12-2017 07:34:24 ::: RFA-10326-2014 (O&M) 10 & connected matters records.
In the nature of the issues that arise for determination in the present appeals, it indeed would be imperative to refer to the order and judgment, dated 25.02.2009, vide which the matter was remitted for re-decision;
" The assessment of compensation for the land acquired vide all the three notifications is primarily based upon the compensation assessed for acquisition of small portion of land acquired vide notification dated 29.9.1997. Accordingly, in my view, it would be appropriate to discuss the evidence led by the parties in that case first.
The land owners in the reference pertaining to the acquisition vide notification dated 29.9.1997 had produced on record following sale deeds:
Exhibit Date Village Area Sale Rates per
considera acre
-tion
Ex. P2 25.4.97 Bhainsa 0-6.5 1,65,000/- 40,615,38/-
Tibba
Ex. P3 -do- -do- 0-4 1,10,000/- 44,00,000/-
Ex. P4 23.4.97 -do- 0-12 3,30,000/- 44,00,000/-
Ex. P5 27.8.97 -do- 0-3 1,50,000/- 80,00,000/-
Ex. P6 1.5.98 -do- 2-0 4,00,000/- 16,00,000/-
Ex.P7 27.2.97 -do- 3-0 4,50,000/- 12,00,000/-
Ex.P8 6.6.97 -do- 1-7-1/2 2,08,000/- 12,10,181/-
Ex.P9 30.5.97 -do- 3-0 4,50,000/- 12,00,000/-
Ex.P10 22.5.02 -do- 7K-17M 14,80,000/ 15,08,280/-
-
Ex.P11 13.5.02 -do- 14-16 29,60,000/ 16,00,000/-
-
The learned court below at the very outset discarded 10 of 24 ::: Downloaded on - 09-12-2017 07:34:24 ::: RFA-10326-2014 (O&M) 11 & connected matters sale deeds (Ex.P6, Ex. P10 and Ex. P.11), as those were registered much after the date of issuance of notification under Section 4 of the Act and considered only sale deeds (Ex. P2 to Ex. P5 and Ex. P7 to Ex. P9). It is not in dispute that there is no site plan produced on record by the land owners showing the location of the acquired land or the land pertaining to the sale deeds produced on record. Site plan (Ex. R1) produced by the State was referred to show the location of the land pertaining to the sale deeds. However, that is merely an aks shijra, which does not show the exact location of the small plots dealt with in the sale deeds, as in the aks shijra, no populated area and even the roads, Railway Line, Mata Mansa Devi Temple, abadi of village Bhainsa Tibba have been depicted to compare the land pertaining to the sale deeds with the acquired land. The area dealt with in the sale deeds ranges from 3 marlas to 3 kanals. As to how the land pertaining to the sale deeds came to be marked on aks shijra produced by the State is not borne out from the record, as nothing has been pointed out by learned counsel for the land owners as to why the sale deeds produced by the land owners have been marked on aks shijra produced by the State.
It seems that non-production of the site plan by the land owners to show the location of small plots of land sold vide various sale deeds produced on record in their evidence was a calculated effort not to enable the court to reach at a right conclusion. The determination of compensation in the land 11 of 24 ::: Downloaded on - 09-12-2017 07:34:24 ::: RFA-10326-2014 (O&M) 12 & connected matters acquisition cases cannot possibly be visualised unless there is a site plan on record showing the boundaries of the acquired land, the development existed on or near the acquired land on the date of issuance of notification under Section 4 of the Act and the exact location of the land/plots pertaining to the sale deeds sought to be relied upon by either of the parties in the evidence led by them, to show the fair value of the acquired land. It cannot be disputed that onus to prove that compensation for the acquired land, as is assessed by the Collector is not fair, is on the land owners, which has to be discharged by leading positive evidence. The State or the authority, who is to bear the burden of additional compensation, if any, is to rebut such evidence led by the land owners. In my considered opinion, the evidence led by the land owners in the present case was not at all convincing, which could enable the court to reach a fair conclusion to assess the market value of the acquired land.
All what has come in the oral evidence is that the acquired land is situated at a distance of about 1.5 kilometers (of crow flight) from Mata Mansa Devi Temple. At which place the land pertaining to the sale deeds is located is not evident from any material on record. Further, there is large variation in the value of the land shown in the sale deeds namely, Ex. P2 to Ex. P5 and Ex. P7 to Ex. P9 were registered between February, 1997 and August, 1997, wherein the consideration range from Rs. 12,00,000/- per acre to Rs. 80,00,000/- per acre, which can be on 12 of 24 ::: Downloaded on - 09-12-2017 07:34:25 ::: RFA-10326-2014 (O&M) 13 & connected matters account of location or other advantages attached therewith.
xxx xxx xxx xxx xxx
xxx xxx xxx xxx
The learned court below noticing the fact that the
sale deeds produced on record by the land owners pertain to very small area of land thought it proper not to consider the same as such, but after averaging the sale consideration therein, applied a cut of 60% to arrive at a figure of Rs. 290/- per square yard, which was determined as compensation payable for the land acquired vide notification dated 29.9.1997. The only reason, which is forthcoming in the impugned award for consideration of the aforesaid sale deeds for determination of fair value of the acquired land is that these pertain to the land of the same village and are quite close to the acquisition. As has already been discussed above, some portions of land of village Bhainsa Tibba had already been developed into residential/commercial area. The sale deeds pertaining to small portions of land within that area cannot possibly be said to be comparable sale instances for determination of fair value of the acquired land which is located in one remote corner of the land pertaining to the village close to the Cantonment boundary and the protected forest. The principle of application of cut while considering the sale instances of small portions of land for the purpose of determination of value of a bigger chunk of land can be applied only with comparable instances. It would be totally unreasonable to compare a sale 13 of 24 ::: Downloaded on - 09-12-2017 07:34:25 ::: RFA-10326-2014 (O&M) 14 & connected matters instance of a small piece of land sold for commercial purpose in a developed area for the purpose of determination of fair value of a bigger portion of acquired land situated at a distance of 1.5 kilometers with no development in the surroundings. ......
xxx xxx xxx xxx xxx
xxx xxx xxx xxx
A perusal of the site plan Ex. P27 (Land Reference
No. 565 of 2005) shows that vide notification dated 2.6.1999, the land was acquired for use by Mata Mansa Devi Shrine Board, which has been depicted in the site plan as Sector 5-D. Vide separate notification issued on the same date, a small chunk of land measuring 4 kanals 8 marlas quite close to Mata Mansa Devi Temple was also acquired. As far as the location of the land acquired for use by Mata Mansa Devi Shrine Board is concerned, a part of that abuts the main road leading from Railway Crossing to Mata Mansa Devi Temple. The other part abuts the cantonment boundary, whereas on one corner, it is abutting the Railway Line as well.
xxx xxx xxx xxx xxx
xxx xxx xxx xxx
......It is further depicted in the site plan that the land, which was acquired vide notification dated 29.9.1997 is located 1.5 kilometers approximately from Mata Mansa Devi Temple by crow flight. It was a small portion of land acquired for use by the Defence.
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RFA-10326-2014 (O&M) 15
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xxx xxx xxx xxx xxx
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......All what can be opined is that the entire chunk of land, as is acquired vide notifications dated 29.9.1997, 16.3.1999 and 2.6.1999, which is located at different places, cannot possibly have the same value, as has been assessed by the learned court below.
xxx xxx xxx xxx xxx
xxx xxx xxx xxx
In view of my above discussion, I find that fresh
exercise is required to be carried out by the learned court below for determination of fair value of the acquired land, as the evidence led by the parties is not convincing. Least any one of them suffers any prejudice, in my opinion, it is a fit case where this court should exercise its inherent jurisdiction by permitting the parties to lead even further evidence in support of their respective claims, in addition to what had already been led. Accordingly, while setting aside the impugned award, passed by the learned court below pertaining to the determination of value of the land, the matter is remitted back."
Ex facie, the conclusion arrived at by this Court was that the land acquired vide two notifications of an even date i.e. 02.06.1999 and a notification dated 16.03.1999, was evaluated on the basis of assessment of a land measuring 5 acres 4 kanals 3 marlas, acquired vide notification, dated 29.09.1997. That, in turn, was based upon the sale deeds Exs.P2 to P5 and P7 to 15 of 24 ::: Downloaded on - 09-12-2017 07:34:25 ::: RFA-10326-2014 (O&M) 16 & connected matters P9, relied upon by the claimants in those proceedings. However, the claimant/landowners had failed to prove on record any site plan that could show the precise location of the sites/land that were sold vide relied upon sale instances in comparison to the acquired land. Particularly, when part of the land situated in village Bhainsa Tibba had been developed into a residential/commercial areas, and any sale deeds of small portions of land, out of the said area could never be termed as comparable sale instance. Further the principle of application of cut, while considering the sale instances of smaller areas, to determine the value of a bigger chunk, would have relevance only if those were comparable. Not just that, no documentary evidence was led by the State/HUDA to rebut the evidence led by the claimants either. Thus, this Court, was of the view that the entire chunk of land, acquired vide four separate notifications, located at different places, possibly would not have the same value. Hence, the matter required re-determination.
And what is the position now?
As indicated earlier, post remand the claimant/landowners had relied upon the sale deeds Ex.P79 to P82 and P99, tabulated below, which pertained to the same revenue estate i.e. village Bhainsa Tibba, as the acquired land.
Exhibit Location Area Date of Sale Rate per
sale consideration sq. yard
P79 Bhainsa 12 marla 23.04.97 Rs. 3,30,000/- Rs. 916/-
Tibba
P80 -do- 3.15 marla 21.01.99 Rs. 2,00,000/- Rs. 1904/-
P81 -do- 5.5 marla 06.06.97 Rs. 4,01,500/- Rs. 2430/-
P82 -do- 6.5 marla 15.05.98 Rs. 3,09,000/- Rs. 1585/-
P99 -do- 1 marla 27.08.97 Rs. 60,000/- Rs. 1983/-
And even though, while remanding the matter this Court had 16 of 24 ::: Downloaded on - 09-12-2017 07:34:25 ::: RFA-10326-2014 (O&M) 17 & connected matters permitted the parties to lead further evidence, as so record, to prove their respective claims, but to no avail. Albeit, the claimants had brought on record the site plan Ex.P91, but again that hardly showed the location of the sites, sold vide relied upon sale instances, vis-à-vis the acquired land. Likewise, even the State had produced a copy of a drawing No.151(Ex.R5), but that too was discarded by the Reference Court, for, it was just a lay out plan which depicted nothing but only the acquired land. As a result, the Reference Court was constrained to record; "Now the transactions on the basis of which the market value of the land can be determined are Ex.P.79, Ex.P.80, Ex.P.81 and Ex.P.82. The only negative point attached to these transactions are that they have not been shown in the site plan brought by the claimants i.e. Ex.P.91 and it had been so pointed out by the Hon'ble High Court in its order dt. 25.2.2009 while remitting this bunch of reference petitions." But despite having recorded that location of the land/sites, sold vide relied upon sale instances, was not discernible from the record, yet those were taken into consideration, just because those also formed part of the same revenue estate;
"......Thus even if the said transactions have not been shown in the site plan brought by the claimant i.e. Ex. P.91, it is undisputed that the sale transactions pertain to land of Vill. Bhainsa Tibba in which the present acquisition had taken place and therefore, they will be helpful while determining the market value of the land after applying the permissible appropriate cut i.e. cut of abadi, appropriate cut of construction and appropriate cut of small transactions. ......" Needless to assert, what indeed was required to be determined or the very purpose to remit the matter was to ascertain as to how exactly the sites, sold vide relied upon sale instances, were 17 of 24 ::: Downloaded on - 09-12-2017 07:34:25 ::: RFA-10326-2014 (O&M) 18 & connected matters located in comparison to the acquired land, before those could be termed as comparable sale instances or made basis of assessment. The fact that the land sold vide sale instances, relied upon by the claimants earlier or tendered in evidence after the matter was remitted, formed part of the same revenue estate, was never in issue. Further, though the Reference Court discarded the sale deeds Exs.P80 to P82, for those were instances of built/constructed sites, and sale deed Ex.P99 was ignored for the bonafide of the said transaction was in issue, but sale deed Ex.P79 was relied upon for it was found to be a suitable/comparable sale instance. But, I am reminded to point out that sale deed Ex.P79 is the same sale instance i.e. Ex.P4, that was relied upon by the Reference Court while assessing the value of the acquired land even in the first round. Thus, the irresistible conclusion that one could reach is that the very purpose for which the matter was remitted earlier remained unfulfilled.
Having said that, I may also refer to yet another dimension of the matter. Apparently, the sale instance Ex.P99 was also discarded, for the Reference Court recorded a finding that one of the claimants, i.e. Subhash Chander also happened to be the vendee in the sale transaction Ex. P99. And, he purchased the said site to create evidence as regards his other holding that too was under acquisition. Thus, the sale deed Ex.P99 was not a genuine transaction. Concededly, the sale deed, dated 27.08.1997 (Ex.P99), was an instance out of the acquired land itself. There cannot be any illusion about the proposition that sale deeds/sale instances out of the acquired land itself, ordinarily, are not only the most suitable but also the safest evidence to be relied upon. It is not disputed either that the notifications under Section 4, in respect to all the four acquisitions, were issued subsequent to the execution of 18 of 24 ::: Downloaded on - 09-12-2017 07:34:25 ::: RFA-10326-2014 (O&M) 19 & connected matters sale deed Ex.P99. Claimant-Subhash Chander was examined as PW10 in L.A. case No.223 of 2003 (decided vide award dated 28.03.2011), arising out of another notification of an even date i.e. 02.06.1999, wherein he testified in his deposition that he had purchased a plot measuring 1 marla for constructing a show room/shops for business purposes. And the said site was even mutated in his name vide Ex.P31. Significantly, as in the earlier proceedings, no finding was recorded or reiterated by the Reference Court that claimant had purchased a small site, measuring 1 marla, at an exaggerated or inflated value to claim higher compensation qua his other holding. On being pointedly asked, learned State counsel could not refer to any evidence that showed that besides the site purchased vide sale deed Ex.P99, claimant-Subhash Chander either owned another piece of land in the same revenue estate or his other holding was also under acquisition. Thus, the finding rendered by the Reference Court; ".......in this respect, a serious doubt is raised that the purchaser Subhash Chander who is also a claimant, thus being owner of other portion of land in the acquired land could have made the said purchase vide Ex.P99 in order to create evidence. It has not been explained as to what need arose for him to purchase such a small piece of land of one marla when he was a huge land owner himself. Thus, there is a doubt that the same was genuine. It is already on record that acquisition in village Bhainsa Tibba was already taking place even prior to the present acquisition. As it is, the case of the claimants is that the land shown in Ex.P.99 was also not developed. Thus, there appears no prudence in purchasing the small piece of land when the purchaser was having huge land in the same vicinity, other than it was for the purpose of creating evidence", is wholly perverse and contrary to the 19 of 24 ::: Downloaded on - 09-12-2017 07:34:25 ::: RFA-10326-2014 (O&M) 20 & connected matters record. For, there indeed is no basis thereof.
As regards the relied upon sale instance, i.e. sale deed, dated 23.04.1997 (Ex.P79), the Reference Court had caused a deduction/cut @ 50%, for, the recital therein showed that the said site was situated within the lal lakir and was a part of the abadi deh of the village. And, thus, was far more valuable than the acquired land which was merely agricultural in nature. However, on the contrary, Sohan Lal, Halqua Patwari (PW11), who was examined in LA Case No. 223 of 2003, proved in his deposition that as per aks shijra of the village Bhainsa Tibba, khasra No.53//26, in which the site sold vide sale deed Ex.P79 was comprised in, was actually situated 60 karams away from the boundary of the abadi deh of the village. Even the copy of the jamabandi (Ex.P35) fortified the said position. Significantly, nothing to the contrary was suggested to the said witness in the cross-examination by the Government Pleader. Likewise, Ramesh Chand, Assistant Draftsman (PW12), examined in LA Case No. 223 of 2003, proved on record the shijra plan of Mansa Devi Urban Complex (Ex.P36) drawn on the aks shijra of the village, wherein khasra No.53//26 and 27 were depicted at point A and B, which purport to be beyond the lal lakir. No evidence to the contrary could be referred to by the learned State counsel. Meaning thereby there exist nothing on record that corroborate the recital in the sale deed (Ex.P79). Thus, in the given situation, whether a deduction @ 50% caused by the Reference Court could be sustained, is another question that requires determination?
Further, the claimant/landowners are also aggrieved, for the Reference Court had even caused a cut @ 35% owing to the smallness of the area alienated vide sale deed Ex.P79. The positive case set out by the 20 of 24 ::: Downloaded on - 09-12-2017 07:34:25 ::: RFA-10326-2014 (O&M) 21 & connected matters claimant/landowners is that the area under acquisition was under a rapid transition from agricultural to semi-urban/urban, thus, the sale instances of a larger/bigger chunk of land, germane to the acquisition, hardly existed. Which is why, even the State or the beneficiaries of the acquisition failed to produce any such sale instances. This, rather reminds me of the observations recorded by this Court while remitting the matters that even though the State is in custody of all the sale instances/sale deeds that are executed and registered before issuance of notification under Section 4, but still it generally fails to produce the best evidence; "This court is constrained to comment upon the conduct of the State as well as HUDA for the reason that even though they had notice of the fact that the land owners had produced on record various sale deeds showing the consideration paid therein ranging from Rs. 12,00,000/- to Rs. 80,00,000/- per acre, no documentary evidence was led by the State or HUDA to rebut this evidence. .......... The fact cannot be disputed that even though the State is the custodian of the records of registration of sale deeds. All the sale deeds, which are registered in any area acquired subsequently are available with the Registrar. In spite of the State, being in custody of the record, it is generally seen that no effort is made by the State to produce on record the best evidence before the Court".
This brings me to yet another facet of the matter. As indicated earlier, the Reference Court vide impugned award, dated 24.04.2010, rendered first in point of time, determined the value of the land (56 acres, 6 kanals and 3 marlas), acquired vide notification, dated 02.06.1999, @ Rs.374/- per square yard. And, subsequently while evaluating the value of the land, measuring 4 kanals 8 marlas, acquired vide notification dated 02.06.1999, and land, 21 of 24 ::: Downloaded on - 09-12-2017 07:34:25 ::: RFA-10326-2014 (O&M) 22 & connected matters measuring 482.17 acres (village Saketri) and 140.59 acres (village Bhainsa Tibba), acquired vide notification dated 16.03.1999, relied upon its earlier award, dated 24.04.2010, and assessed the compensation at the same rate i.e. Rs.374/- per square yard, vide awards dated 28.03.2011 and 31.10.2011, respectively. And, last of all while assessing the value of the land (5 acres 4 kanals 3 marlas), acquired vide notification dated 29.09.1997, the Reference Court relied upon an award dated 31.10.2011. What needs to be noticed is that notification under Section 4, in the relied upon acquisition was issued on 16.03.1999, i.e. a year and half later than the notification dated 29.09.1997. Resultantly, the Reference Court applied a reverse cut @ 18% to work out the true value of the land in question. A further deduction @ 10% was caused, for, the land in the relied upon acquisition was better located. Needless to assert that it indeed is unsafe to determine the value of the land on the basis of sale instances or acquisition that are post notification under Section 4, in relation to which the value of the land is required to be determined. The Supreme Court in The General Manager, Oil & Natural Gas Corporation Ltd. v. Rameshbhai Jivanbhai Patel and another, (2008) 14 SCC 745, observed in para 13 of the judgment; "Much more unsafe is the recent trend to determine the market value of the acquired lands with reference to future sale transactions or acquisitions. To illustrate, if the market value of a land acquired in 1992 has to be determined and if there are no sale transactions/acquisitions of 1991 or 1992 (prior to the date of preliminary notification), the statistics relating to sales/acquisitions in future, say of the years 1994-956 or 1995-96 are taken as the base price and the market value in 1992 is worked back by making deductions at the rate of 10% to 15% per annum. How far is this safe? One 22 of 24 ::: Downloaded on - 09-12-2017 07:34:25 ::: RFA-10326-2014 (O&M) 23 & connected matters of the fundamental principles of valuation is that the transactions subsequent to the acquisition should be ignored for determining the market value of acquired lands, as the very acquisition and the consequential development would accelerate the overall development of the surrounding areas resulting in a sudden or steep spurt in the prices". It would be apposite to observe that this Court, vide a common judgment, had remitted the matter for re-decision, qua all the four acquisitions. It indeed would have been expedient and rather appropriate if the value of the land, in respect whereof the notification under Section 4 was issued earlier, in point of time, is determined first. Whereas, in the matter at hands the position is converse.
In the normal parlance, in the matter of this nature, remand is the last resort and least desired, particularly when the matter was remanded even earlier. But, as demonstrated above, it appears to be the only and the inevitable option, least any prejudice is caused or interest of any of parties suffers. And in the given facts and circumstances, it is deemed appropriate, and rather necessary, to afford two effective opportunities to each of the parties to lead the required evidence in support of their respective claims. Particularly, for learned counsel for the claimant/landowners as also the State of Haryana/HUDA/Union of India/Shri Mata Mansa Devi Shrine Board submit that they shall produce the requisite site plans to enable the Reference Court to ascertain the comparability of the relied upon sale instances, and other evidence on record, with the acquired land. However, in the event of default by any of the parties, no further opportunity shall be granted at any cost. Needless to assert that nothing stated herein above shall constitute an expression of opinion on the merits of the case of either party. For, it shall be decided by the Reference Court strictly in 23 of 24 ::: Downloaded on - 09-12-2017 07:34:25 ::: RFA-10326-2014 (O&M) 24 & connected matters accordance with law. The parties through their respective counsel shall appear before the District Judge, Panchkula, on 15.01.2018. It shall be the discretion of the District Judge to either decide the matter himself or assign to any other Court of competent jurisdiction. But it shall be ensured that all the land references are assigned to the one Court. However, owing to the history of the case, the Reference Court is requested to decide the matter within six months from the date the parties shall cause appearance before the District Judge.
Accordingly, these appeals are disposed of in the above terms. The Registry is directed to return the LCR to the reference Court forthwith.
(ARUN PALLI)
JUDGE
November 14, 2017
Manoj Bhutani/Pkapoor
Whether Speaking/Reasoned: YES / NO
Whether Reportable: YES / NO
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