Allahabad High Court
Dharam Pal vs State Of U.P. on 7 March, 2019
Author: Surya Prakash Kesarwani
Bench: Surya Prakash Kesarwani
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 59 Case :- FIRST APPEAL No. - 302 of 2008 Appellant :- Dharam Pal Respondent :- State Of U.P. Counsel for Appellant :- ,Anil Sharma,Dheeraj Singh Bohra Counsel for Respondent :- Amit Manohar Hon'ble Surya Prakash Kesarwani,J.
The controversy involved in the present first appeal is "Whether compensation of land of Village Kakrala Khwaspur acquired on 5.1.1982, under Section 4 of the Land Acquisition Act, 1894, can be determined at the same rate i.e. Rs.297/- per Sq. yard, as was determined by the Division Bench in First Appeal No.1100 of 2004 (Mangu and others v. State of U.P. And others) decided on 3.12.2014 with respect to land of the same village acquired on 2.2.199, when some first appeals relating to the land acquisition dated 5.1.1982 were connected with the first appeal of Mangu & others (supra) and the the Division Bench passed the judgment without being informed or without notice of this fact ?"
1- Heard Sri Anil Sharma, learned counsel for the claimant-appellant, Sri Girish Vishwakarma, learned standing counsel for respondent no.1 and Sri Shivam Yadav, learned counsel for respondent no.2, NOIDA.
FACTS OF THE CASE 2- By notification under Section 4(1) of the Land Acquisition Act, 1894 (hereinafter referred to as the 'Act') published on 5.1.1982, land measuring 284-18-18 Bighas of Village Kakrala Khawaspur, Pargan Dadri, District Ghaziabad (now Gautam Budhha Nagar) was acquired. Subsequently, the actual acquisition was made for land measuring 274-14-4 Bighas. Possession of the land was taken on 30.4.1982. The SLAO made the award on 7.9.1993 determining compensation @ Rs.23291.14 per Bigha, which comes to about Rs.9/- per square yard. Several references were made at the instance of claimants/land holders. Twenty such references have been decided by the impugned common judgment dated 17.8.1993 passed by IXth Additional District Judge, Ghaziabad determining compensation @ Rs.20/- per square yard along with other statutory benefits and interest. The present appeal arises from the impugned judgment passed in LAR No.200 of 1984.
3- The Application No.6 of 2019 dated 28.1.2019 under Order 41 Rule 27 has been filed by the appellants to take in additional evidence the judgment dated 19.5.2010 in First Appeal No.1056 of 1999 (Raghuraj Singh and others Vs. State of U.P. and another), the judgement dated 13.3.2014 in First Appeal Defective No.773 of 2000 (Mahaveer Vs. The Chairman of Industrial Development Authority and others) and the judgment dated 3.12.2014 in First Appeal No.1100 of 2004 (Mangu and others Vs. State of U.P. and another) which relate to land acquired in Village Bhangel Begumpur, Village Nagla Charandas and Kakrala Khawaspur respectively. The judgment in Mangu and others (supra) was passed in terms of the judgment in First Appeal No.1056 of 1999 (Raghuraj Singh and others Vs. State of U.P. and another) which relates to Village Bhangel Begumpur.
4- Another application dated 12.2.2019 under Order 41 Rule 27 of CPC has been filed by the claimants-appellants to take in additional evidence the certified copy of the judgment dated 3.12.2014 in First Appeal No.1100 of 2004 (Mangu and others Vs State of U.P. and another) decided on 3.12.2014. In paragraphs 9 to 15 of the affidavit accompanying the aforesaid application dated 12.2.2019, the claimant-appellants have given particulars of first appeals connected with the case of Mangu and others (supra), as under:-
Sl. No. LAR No. First appeal no. & name of parties Rate of compensation per square yard (Rs.)
1. 200 of 1984 D944 of 1994, Dharmpal Vs. State of U.P. Note- connected with the first appeal of Mangu and others (supra) 297/-
2. 203 of 1984 D 914 of 1994, Shaukat and others Vs. State of U.P. Note- connected with the first appeal of Mangu and others (supra) 297/-
3. 204 of 1984 D940 of 1994, Latif Vs. State of U.P. Note- connected with the first appeal of Mangu and others (supra) 297/-
4. 205 of 1984 D902 of 1994, Md. Umar Vs. State of U.P. Note- connected with the first appeal of Mangu and others (supra) 297/-
5. 206 of 1984 D903 of 1994, Ali Khan Vs. State of U.P. (Ali Hasan Vs. State of U.P. Note- connected with the first appeal of Mangu and others (supra) 297/-
6. 206 of 1984 D903 of 1994, Ali Khan Vs. State of U.P. (Ali Hasan Vs. State of U.P. Note- connected with the first appeal of Mangu and others (supra) 297/-
7. 211 of 1984 D913 of 1994, Peru Vs. State of U.P. Note- connected with the first appeal of Mangu and others (supra) 297/-
5- The entire case set up by the claimant-appellants for compensation of their acquired land @ Rs.297/- per Sq. yard is based on the Division Bench judgment in the case of Mangu and others (supra), therefore, it would be relevant to notice certain facts relating to the case of Mangu and others and other 37 first appeals decided collectively. The facts in this regard has been brought on record by the NOIDA by counter affidavit dated 28.2.2019, which are summarized as under :
(i) In First Appeal no.1100 of 2004 (Mangu and others v. State of U.P. and others), the question of determination of market value was with regard to land acquired by notification under section 4(1) of the Land Acquisition Act, 1894 dated 2.2.1991.
(ii) Total 37 First Appeals were connected with First Appeal No.1100 of 2004 (Mangu and others v. State of U.P. and others). Acquisition notificationwise number of first appeals decided in the Bunch of Mangu and others (supra) are as under:
Date of Notification U/s 4 of the Act Number of Regular First Appeals Number of Defective First Appeals Rate determined by SLAO, per Sq. yard Rate determined by Reference Court, per Sq. yard
1. Notification dt. 2.2.1991 13 9 Rs. 51.97 Rs. 125/-
2. Notification dt. 11.1.1977 2 5 Rs. 1.98/2.78 Rs. 3.30/3.97
3.Notification dt. 5.1.1982 0 8 Rs. 7.70 Rs. 20/-
4. Notification dt. 18.6.1986 0 Total = 15 1 Total = 23 Rs. 11/-
Rs. 30/-
6- Since, the judgment in the case of Mangu and others (supra) has been taken as a sole ground by the claimant-appellants to demand compensation @ Rs.297/- per sq. yard, therefore, the said judgment is reproduced below :
"Supplementary affidavit filed by the appellants in First Appeal No.1100 of 2004 is taken on record.
Heard Ms. Kamini Jaiswal, Senior Advocate duly assisted by Mr.Shailesh Upadhyay for the claimants and learned Counsel for NOIDA.
At the outset, it is relevant to mention here that in some of the First Appeals, the appellants/claimants left for heavenly abode and as such, substitution applications were filed on their behalf for bringing on record their legal heirs. There is no objection to these applications. Accordingly, all the substitution applications are allowed, after condoning the delay, if any, in preferring the substitution applications.
Let them be substituted in place of claimants during the course of the day.
The aforesaid appeals, cross appeals/cross objections have arisen against the Award made by the Reference Court in respect of the land acquired for planned development situate in Tehsil Dadri, District Ghaziabad. NOIDA has filed the appeals for reduction of the compensation while the claimants have filed appeals/objections for enhancement of compensation.
The aforecaptioned appeals have been heard together and are being disposed of by a common judgment, as the learned Counsel for the parties have agreed for the same.
There is no dispute to the fact that the land of the claimants was acquired by the State Government for planned development for which notifications were issued in different years but the land of the tenure holders situate within the vicinity of Tehsil Dadri or in close propinquity.
Learned Counsel for the claimants have submitted that several First Appeals were preferred against the order of the Reference Court by the land owners belonging to adjoining villages such as Bhangel Begumpur, Chhalera Bangar, Sarfabad, Morana, Nagla Charandas, Geha Tilapatabagh, Budha, Pargana & Tehsil Dadri, District Ghaziabad. In First Appeal No. 1056/1999, Raghuraj Singh and others v. State of U.P. and others, a Division Bench of this Court enhanced the compensation to Rs.297/- per square yard on the basis of the principle laid down in earlier order reported in 2008 (1) ADJ 253 : Jagdish Chandra and others v. New Okhla Industrial Development Authority.
Learned Counsel for the claimants submits that the case of the tenure holders-claimants being identical to the bunch of appeals decided earlier are entitled for the same benefit. It is not in dispute between the parties that in earlier bunch of appeals, this Court has enhanced the compensation to Rs.297/- per squareyard.
It may be noted that in bunch of First Appeals led by First Appeal No.564 of 1997, Khazan and others Vs. State of U.P. and others pertaining to adjoining villages of Bhangel Begumpur, Nagla and Geha Tilpatabad of Dadri Tehsil relating to land acquisition was decided by this Court granting compensation at the rate of Rs.297/- per square yard, in terms of decision of this Court rendered in First Appeal No.1056 of 1999, Raghuraj Singh and others vs. State of U.P. and others.
Again this Court while dealing with a First Appeal No. 644 of 2012, Amar Singh and another Vs State of U.P. and others pertaining to adjacent Village Gejha Tilpatabad, followed the several judgements, passed by this Court including the judgment rendered in the bunch of First Appeals, led by First Appeal No. 564 of 1997, Khazan and others v. State of U.P. and others and this Court enhanced the compensation to Rs.297/- per square yard.
Similarly, by means of a detailed and well-considered judgment dated 19.5.2010 passed in First Appeal No.1056 of 1999, a Division Bench held that the claimants are entitled to compensation @ Rs.297/- per square yard alongwith other statutory dues. In this case, the acquired land situates in Tehsil Dadri, District Ghaziabad. The enhancement of compensation to Rs.297/- per square yard in respect of the land situates in village Bhangel Begumpur has been followed by another Division Bench in its judgment and order dated 11.10.2012 passed in First Appeal No. 564 of 1997.
The Apex Court in Civil Appeal No.6775 of 2013 Harbhajan Kumar and others Vs. Collector, Land Acquisition and another while deciding similar Civil Appeal, extended the benefit of enhanced compensation made in previous Civil Appeal of similar nature.
It is also relevant to point out that against the judgment and order dated 14.12.2007 passed in First Appeal No.470 of 2001 connected with number of appeals, the NOIDA approached the Apex Court by filing Special Leave to Appeal (Civil) No.18331 of 2008 but all the Special Leave Petitioners were dismissed by a common order dated 5.2.2014.
Recently, a Coordinate Bench of this Court, following the aforesaid judgment, allowed the compensation to the tune of Rs.297/- per square yard vide its judgment and order dated 23.5.2014 passed in First Appeal No.336 of 1998.
We would like to point out that in First Appeal No.34 of 2007, Ganeshi Singh and others vs. State of U.P. and others decided on 9.5.2008, a Division Bench of this Court has held that the land owners of a particular land in a subsequent notification are entitled to at least the same rate of compensation as awarded to similarly placed land owners in an earlier notification when the same has been brought to the notice of the Court.
For the reasons aforesaid, the appeals filed by the NOIDa for reduction of compensation are hereby dismissed and the appeals filed by the claimants/landloosers for enhancement of the compensation are allowed. The claimants-private respondents shall be entitled for compensation @ Rs.297/- per square yard, as held by us above and they shall be paid the enhanced compensation together with other statutory dues [like solatium, interest etc.], as directed by the Reference Court, within three months from the date of receipt of a certified copy of this order.
So far defective appeals are concerned, any defect/s was/were deficiency of court fees, it is directed that same will be recovered/adjusted in accordance with rules, while preparing final decree by the department.
As far as First Appeal No.902 (D) of 1994, Mohd. Umar v. State of U.P. is concerned, the registry has submitted office report dated 3.12.2014 indicating therein that in spite of extensive efforts, the main copy of the appeal is not traceable. However, the bench copy is available and the same may be treated as 'main copy' for the purpose of disposal of appeal. In these circumstances, Registry is directed to treat the same as 'main copy'. It may be mentioned that Sri Shailesh Upadhyay, counsel for the appellant has also indicated in his application dated 22.11.2014 that he has made good the deficiency in court fee.
It has also been pointed out that in some cases, no orders have been passed on the restoration applications. As there is no objection, the applications for restoration are allowed. As regards the substitution applications, we have passed the order as indicated on the third page of the judgment. All the other pending applications shall also stand disposed of accordingly.
Parties shall bear their own costs".
SUBMISSIONS ON BEHALF OF CLAIMANT-APPELLANTS 7- Sri Anil Sharma, learned counsel for the claimant-appellant submits as under:
(i) First Appeal No.955 of 2004, First Appeal No.903 of 1994, First Appeal No.909 of 2000 were First Appeal No.21 of 1987 and First Appeal No.813 of 2000 were decided along with leading First Appeal No.1100 of 2004 (Mangu and others v. State of U.P. and others). The claimants-appellants filed Special Leave to Appeal (C) No.18168 of 2016 in Civil Misc. Review Application No.174702 of 2015 in First Appeal No.458/1984, which were dismissed by Hon'ble Supreme Court by order dated 27.5.2016. The aforesaid first appeals arose from the impugned common judgment passed by the reference court. Thus, the judgment in the aforesaid first appeals arising from the impugned common judgment of the reference court, has attained finality. Therefore, the claimants-appellants are also entitled to the same rate of compensation i.e., Rs.297/- per Sq. yard, as has been determined by the High Court in the aforesaid first appeals.
(ii) The principle of merger shall apply which has been explained in the case of Kunhayammed Vs. State of Kerala (2006) 6 SCC 359.
(iii) The judgment in the aforesaid first appeals, was not challenged by the respondent NOIDA or the State of U.P. SUBMISSIONS ON BEHALF OF RESPONDENTS 8- Sri Shivam Yadav, learned counsel for the respondent NOIDA submits as under:
(i) The present appeal arises from the acquisition of land of Village Kakrala Khawaspur by notification dated 5.1.1982 under Section 4(1) of the Act. The judgment in the case of Mangu and others (supra) passed by this Court was with respect to the acquisition of land of Village Kakrala Khawaspur made by subsequent notification dated 2.2.1991. It appears that inadvertently, the First Appeal Defective Nos.944 of 1994, 914 of 1994, 940 of 1994, 902 of 1994, 903 of 1994, 943 of 1994 and 901 of 1994, arising from the impugned common judgment of the Reference Court and relating to the acquisition notification dated 5.1.1982, were inadvertently connected with the First Appeal No.1100 of 2004 (Mangu and others Vs. State of U.P. and others) and without removal of the defect and without notice of the fact of the acquisition by notification dated 5.1.1982, those first appeals were decided alongwith the first appeal of Mangu and others (supra) awarding compensation at the rate of Rs.297/- per square yard which cannot be treated as a precedent.
(ii) Along with the judgment in the case of Mangu and others (supra), certain first appeals arising from the acquisition made in the year 1977, were also decided awarding compensation @ Rs.297/- per square yard and, therefore, on notice of these facts at the higher level, the respondent-NOIDA has taken a decision to file review applications.
(iii) in a Review Application No.174702 of 2015 in First Appeal No.458 of 1984 (Jagmal Vs. State of U.P.) decided on 27.5.2016, a question arose as to whether same rate of compensation as determined in a first appeal with respect to the acquisition made in the year 1990 can be applied to the acquisition made in the year 1976. The question was answered in negative by this Court in the aforesaid review application and the judgment was reviewed. Aggrieved with order on review, the claimants relating to that appeal, filed SLP No.18168 of 2016 before Hon'ble Supreme Court, which was dismissed by order dated 30.9.2016 observing " Permission to file Special Leave Petition is rejected".
(iv) In similar circumstances, in the case of Deokaran Vs. State of U.P. (First Appeal No.757 of 2012) and two other connected first appeals, matter was referred by a Single Judge to Larger Bench by order dated 16.12.2016 on three questions, as under:-
"(i) Whether in view of the applicable unamended provisions of Section 25 of the Act, this Court has jurisdiction to award compensation in excess of the amount claimed by the appellants pursuant to notice under Section 9 of the Act?
(ii) Whether market value determined in another case with respect to land of the same or a different village acquired under a much subsequent acquisition notification under Section 4 of the Act entitles in law to a claimant/ tenure holder for compensation at the same rate whose land was acquired several years ago?
(iii) Whether the judgment in the case of Genda and others Vs. State of U.P. in First Appeal No.1228 of 1990 decided on 16.02.2015 and judgment dated 11.03.2015 in First Appeal Defective No. 198 of 1989 (Basanta and another Vs. State of U.P. Through Collector, Ghaziabad are in conflict with the provisions of Section 23 and 25 of the Act and the law laid down by Hon'ble Supreme Court in the cases of Land Acquisition Officer-cum-DSWO, A.P. Vs. B.V. Reddy and Sons (2002) 3 SCC 463 (paras 4, 5, 6 & 8), Bhupal Singh and others Vs. State of Haryana (2015) 5 SCC 801 (para 27), Union of India and another Vs. Raghubir Singh (dead) by LRs. Etc. (1989) 2 SCC 754 (para 33)."
(v) the Larger Bench i.e. the Division Bench decided the aforesaid first appeal without specifically answering the referred question nos.(II) and (III). The respondent-NOIDA filed Civil Appeal No.4879 of 2018 (New Okhala Industrial Development Authority-NOIDA Vs. Deo Karan and others) which was partly allowed by Hon'ble Supreme Court by judgment dated 1.5.2018 as under:-
"1. Leave granted.
2. Heard learned counsel for the parties.
3. At the outset we record our dissatisfaction with respect to the way in which High Court has determined the compensation for the land acquired and had directed that the same would be made applicable to all other pending matters.
4. In the instant case, the Notification under Section 4 of the Land Acquisition Act, 1894 (in short, ''the Act') was issued on 14.3.1980 and in the appeal arising out of SLP(C) .......D.No.8075/2018 the Notification under Section 4 of the Act was issued on 5.1.1982. The High Court has relied upon the decision in the case of Jagdish Chandra & Ors. Vs. New Okhla Industrial Development Authority, NOIDA & Anr. decided on 14.12.2007 in First Appeal No.744/2001 and connected matters; and the case of Raghuraj Singh & Ors. Vs. State of U.P. & Anr. Decided on 19.05.2010 in First Appeal No.1056/1999 and other connected matters.
5. In the case of Jagdish Chandra (supra), the Notification under Section 4 of the Act had been issued on 30.10.1987 and the rate determined was Rs.297/- per square yd. In that case, the agreement to sell dated 19.4.1989 was relied upon for determining the aforesaid valuation of Rs.297/- per square yd. In the case of Raghuraj Singh (supra), Notification under Section 4 was issued on 24.3.1988, i.e., much later than the Notifications in question issued in 1980 and 1982. Again the reliance was placed on Raghuraj Singh (supra), which also relied upon the agreement to sell dated 12.01.1989. The aforesaid course adopted by the High Court, was wholly impermissible and bad in law. The way in which the High Court had determined the compensation, that too on the basis of the agreement to sell, was not a satisfactory or permissible way of arriving at the valuation in the aforesaid decision on which reliance had been placed. Thus, aforesaid decisions of Jagdish Chandra and Raguraj Singh could not have been relied upon for basing the determination of value with respect to the Notifications issued in the years 1980 and 1982. We are shocked that how the High Court has determined the same valuation for the notifications issued in the years 1980 and 1982, when the rates were determined in the aforesaid cases of Jagdish Chandra and Raghuraj Singh with respect to the Notifications under Section 4 issued in the years 1987 and 1988.
6. We record our dissatisfaction towards the slipshod and perfunctory manner and the hazardous way in which the compensation was determined by the High Court, that too on the basis of agreement to sell.
7. In the instant cases, the Land Acquisition Officer has determined the compensation with respect to the Notifications issued in the year 1980 and 1982. Dissatisfied thereby, reference was sought. The rate claimed by the land owners was Rs.40/- to Rs.50/- per square yd. The Land Acquisition Officer had awarded the compensation @ Rs.12497.72p. per bigha and the Reference Court had enhanced the compensation @ Rs.63,525.00 per bigha along with solatium and statutory interest. Aggrieved thereby, the appeals were preferred in the High Court. The High Court had enhanced the compensation to Rs.297/- per square yard.
8. We have gone through the Award passed by the Reference Court. No sale exemplar evidence has been adduced in the instance case. Certain Awards were placed on record before the Reference Court. One of the Awards related to the Notification issued under Section 4 was dated 2.3.1977. Whereas, in the case of Genda, the Reference Court had awarded compensation @ Rs.18,475/- per bigha. The 2nd set of evidence was in the form of Award passed by the District Judge, Ghaziabad, in which the rate determined was Rs.8.12p. The third Award adduced on evidence was with respect to the Notification under Section 4 issued on 30.4.1978. The Award was passed on 15.2.1977, determining the rate of compensation @ Rs.20/- per square yd. There was yet another Award in which the rate with respect to Notification issued under Section 4 on 27.4.1982, was determined @ Rs.148.25p. per square yd. As there is a rising trend in the prices, we deem it appropriate, as the Notifications had been issued in the years 1980 & 1982 in the instant cases, to adopt the price @ Rs.148.75p. per square yd. to be the basis for determining the valuation. That would hold good for the Notification issued in 1982, whereas it would be appropriate to grant the compensation @ Rs.125/- per square yd. with respect to the Notification issued in 1980. Thus, the determination made by the High Court was wholly impermissible and was based on the judgment which could not have been applied to the instant cases. Thus, we set aside the judgment and order passed by the High Court and modify the determination made by the Reference Court. The compensation is determined for 1982 Notification @ Rs.148.75p., rounded of to Rs.149/- per square yd. and for 1980 Notification @ Rs.125/- per square yd. The same shall be paid along with other statutory benefits, as may be admissible. Let the compensation be paid within a period of three months from today.
9. The appeals are partly allowed to the aforesaid extent. Pending applications stand disposed of.
10. We have not been required to decide any other question. Applications for seeking substitution, for condonation of delay, amendment of memo of parties, etc., if any, also stand allowed."
(vi) The compensation can be determined only in accordance with the Provisions of Section 23 of the Act. Therefore, the judgments in first appeal in the case of Mangu and others (supra) relating to a much subsequent acquisition notification is not precedent. Rate of compensation determined with regard to the acquisition of land in a much subsequent year, cannot be applied for determining compensation of land acquired much earlier.
QUESTIONS FOR DETERMINATION 9- The facts of the case and the submissions of the learned counsel for the parties, as noted above, give rise to the following questions for determination which have been framed with the consent of the learned counsels for the parties.
(i) What is the market value of the land of the Claimant- appellants situate in Village Kakrala Khwaspur, Pargana and Tehsil Dadri (Now Gautambudh Nagar), acquired by Notification dated 5.1.1982, under Section 4 of the Act, ?
(ii) Whether the Claimant-appellants are entitled for compensation of their land acquired by Notification dated 5.1.1982 at the same rate i.e., Rs.297/- per Sq. yard, as was determined in the case of Mangu and others (supra), which involved acquisition of land by notification dated 2.2.1991 ?
10- Before I proceed to examine this question, it would be appropriate to look firstly at the provisions of Section 23(1) of the Act,1894, which provides the factors to be considered for determination of amount of compensation for land acquired under the Act. The provisions of Section 23(1) of the Act, is reproduced below:
"(1) In determining the amount of compensation to be awarded for land acquired under this Act, the Court shall take into consideration first, the market value of the land at the date of the publication of the notification under section 4, sub-section (1); secondly, the damage sustained by the person interested, by reason of the taking of any standing crops or trees which may be on the land at the time of the Collector's taking possession thereof; thirdly, the damage (if any), sustained by the person interested, at the time of the Collector's taking possession of the land, by reason of severing such land from his other land; fourthly, the damage (if any), sustained by the person interested, at the time of the Collector's taking possession of the land, by reason of the acquisition injuriously affecting his other property, movable or immovable, in any other manner, or his earnings; fifthly, if, in consequence of the acquisition of the land by the Collector, the person interested is compelled to change his residence or place of business, the reasonable expenses (if any) incidental to such change; and sixthly, the damage (if any) bona fide resulting from diminution of the profits of the land between the time of the publication of the declaration under section 6 and the time of the Collector's taking possession of the land".
PRINCIPLES FOR DETERMINING COMPENSATION 11- The provisions of Section 23(1) of the Act, has been authoritatively explained by Hon'ble Supreme Court in series of the judgments. Those principles including the nature of proceeding in reference under Section 18 of the Act, are being summarized below.
12- In Chimanlal Har Govinddas v. Special Land Acquisition Officer (1988)3 SCC 751 (Para 4), Hon'ble Supreme Court laid down broad principles to be followed in determination of compensation of land acquired under Section 4 of the Act, which has been consistently followed and has also been followed in a recent decision in Manoj Kumar and others v. State of Haryana and others (2018)13 SCC 96 (Para 25) as under:
"4. The following factors must be etched on the mental screen:
(1) A reference under section 18 of the Land Acquisition Act is not an appeal against the award and the Court cannot take into account the material relied upon by the Land Acquisition officer in his Award unless the same material is produced and proved before the Court.
(2) So also the Award of the Land Acquisition officer is not to be treated as a judgment of the trial Court open or exposed to challenge before the Court hearing the Reference. It is merely an offer made by the Land Acquisition officer and the material utilised by him for making his valuation cannot be utilised by the Court unless produced and proved before it. It is not the function of the Court to sit in appeal against the Award,approve or disapprove its reasoning, or correct its error or affirm, modify or reverse the conclusion reached by the Land Acquisition officer, as if it were an appellate court.
(3) The Court has to treat the reference as an original proceeding before it and determine the market value afresh on the basis of the material produced before it.
(4) The claimant is in the position of a plaintiff who has to show that the price offered for his land in the award is inadequate on the basis of the materials produced in the Court. Of course the materials placed and proved by the other side can also be taken into account for this purpose.
(5) The market value of land under acquisition has to be determined as on the crucial date of publication of the notification under Section 4 of the Land Acquisition Act (dates of Notifications under sections 6 and 9 are irrelevant).
(6) The determination has to be made standing on the date line of valuation (date of publication of notification under Section 4) as if the valuer is a hypothetical purchaser willing to purchase 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.
(7) 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.
(8) Only genuine instances have to be taken into account. (Some times instances are rigged up in anticipation of Acquisition of land).
(9) 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 the purchaser to pay a higher price on account of the resultant improvement in development prospects.
(l0) The most comparable instances out of the genuine instances have to be identified on the following considerations:
(i) proximity from time angle,
(ii) proximity from situation angle.
(11) Having identified the instances which provide the index of market value the price reflected therein may be taken as the norm and the market value of the land under acquisition may be deduced by making suitable adjustments for the plus and minus factors vis-a-vis land under acquisition by placing the two in juxtaposition.
(12) A balance-sheet of plus and minus factors may be drawn for this purpose and the relevant factors may be evaluated in terms of price variation as a prudent purchaser would do.
(13) The market value of the land under acquisition has there after to be deduced by loading the price reflected in the instance taken as norm for plus factors and unloading it for minus factors.
(14) The exercise indicated in clauses (11) to (13) has to be undertaken in a common sense manner as a prudent man of the world of business would do. We may illustrate some such illustrative (not exhaustive) factors:
Plus factors Minus factors
1. smallness of size
1. largeness of area
2. proximity to a road
2. situation in the interior at a distance from the Road
3. frontage on a road
3. Narrow strip of land with very small frontage compared to depth
4. nearness to developed area
4. lower level requiring the depressed portion to be filled up
5. regular shape
5. remoteness from developed locality
6. level vis-a-vis land under acquisition
6. some special disadvantageous factor which would deter a purchaser
7. special value for an owner of an adjoining property to whom it may have some very special advantage (15) The evaluation of these factors of course depends on the facts of each case. There cannot be any hard and fast or rigid rule. Common sense is the best and most reliable guide. For instance, take the factor regarding the size. A building plot of land say 500 to 1000 sq. yds cannot be compared with a large tract or block of land of say l0000 sq. yds or more. Firstly while a smaller plot is within the reach of many, a large block of land will have to be developed by preparing a lay out, carving out roads, leaving open space, plotting out smaller plots, waiting for purchasers (meanwhile the invested money will be blocked up) and the hazards of an entrepreneur. The factor can be discounted by making a deduction by way of an allowance at an appropriate rate ranging approximately between 20 percent to 50 percent to account for land required to be set apart for carving out lands and plotting out small plots. The discounting will to some extent also depend on whether it is a rural area or urban area, whether building activity is picking up, and whether waiting period during which the capital of the entrepreneur would be looked up, will be longer or shorter and the attendant hazards.
(16) Every case must be dealt with on its own fact pattern bearing in mind all these factors as a prudent purchaser of land in which position the Judge must place himself.
(17) These are general guidelines to be applied with understanding informed with common sense."
(Emphasis supplied by me)
13. In a recent Division Bench decision of this Court in First Appeal No. 454/2003 and other connected matters, Meerut Development Authority through Its Secretary Vs. Basheshwar Dayal (since deceased), through His L.Rs. and another decided on 01.08.2013, the legal principles settled by Apex Court in various judgments, relevant for determination of market value, have been crystallized as under:
(i) Function of the Court in awarding compensation under the Act is to ascertain the market value of the land on the date of the notification under Section 4(1),
(ii) The method for determination of market value may be : -
(a) Opinion of experts,
(b) the price paid within a reasonable time in bonafide transactions of purchase of the lands acquired or the lands adjacent to the lands acquired and possessing similar advantages,
(c) a number of years purchase of the actual or immediately prospective profits of the land acquired. (Ref. (1994) 4 S.C.C 595 para 5 Jawajee Nagnatham Vs. Revenue Divisional Officer & others)
(iii) While fixing the market value of the acquired land, comparable sales method of valuation is preferred than other methods of valuation of land such as capitalisation of net income method or expert opinion method. Comparable sales method of valuation is preferred because it furnishes the evidence for determination of the market value of the acquired land at which a willing purchaser would pay for the acquired land if it had been sold in the open market at the time of issue of notification under Section 4 of the Act. However, comparable sales method of valuation of land for fixing the market value of the acquired land is not always conclusive but subject to the following factors:-
(a) Sale must be a genuine transaction,
(b) the sale deed must have been executed at the time proximate to the date of issue of notification under Section 4 of the Act,
(c) the land covered by the sale must be in the vicinity of the acquired land,
(d) the land covered by the sales must be similar to the acquired land
(e) the size of plot of the land covered by the sales be comparable to the land acquired.
(f) if there is dissimilarity in regard to locality, shape, site or nature of land between land covered by sales and land acquired, it is open to the Court to proportionately reduce the compensation for acquired land.
(iv) The amount of compensation cannot be ascertained with mathematical accuracy. A comparable instance has to be identified having regard to the proximity from time angle as well as proximity from situation angle. For determining the market value of the land under acquisition, suitable adjustment has to be made having regard to various positive and negative factors vis-a-vis the land under acquisition which are as under :-
Positive factors Negative factors
(i) Smallness of size
(i) Largeness of area
(ii) Proximity to a road.
(ii) Situation in the interior at a distance from the road.
(iii) Frontage on a road.
(iii) Narrow strip of land with very small frontage compared to depth.
(iv) Nearness to developed area.
(iv) Lower level requiring the depressed portion to be filled up.
(v) Regular shape.
(v) Lower level requiring the depressed portion to be filled up.
(vi) Level vis-a-vis land under acquisition.
(vi) Some special disadvantageous factor which would deter a purchaser.
(vii) Special value for an owner of an adjoining property to whom it may have some very special advantage.
(v) For ascertaining the market value of the land, the potentiality of the acquired land should also be taken into consideration. Potentiality means capacity or possibility for changing or developing into state of actuality.
(vi) Deduction not to be done when land holders have been deprived of their holding 15 to 20 years back and have not been paid any amount.
(vii) In fixing market value of the acquired land, which is undeveloped or under-developed, the Courts have generally approved deduction of 1/3rd of the market value towards development cost except when no development is required to be made for implementation of the public purpose for which land is acquired. (Ref. (2011) 8 S.C.C page 9, Valliyammal and another Vs. Special Tahsildar Land Acquisition and another, paras 13, 14, 15, 16, 17, 18 and 19).
(viii) When there are several exemplars with reference to similar lands, it is the general rule that the highest of the exemplars, if it is satisfied, that it is a bonafide transaction has to be considered and accepted. When the land is being compulsorily taken away from a person, he is entitled to the highest value which similar land in the locality shown to have fetched in a bona fide transaction entered into between a willing purchaser and a willing seller near about the time of the acquisition. (Ref. (2012) 5 S.C.C 432, Mehrawal Khewaji Trust (Registered ), Faridkot and others Vs. State of Punjab and others).
(ix) In view of Section 51A of the Act certified copy of sale deed is admissible in evidence, even the vendor or vendee thereof is not required to examine themselves for proving the contents thereof. This, however, would not mean that contents of the transaction as evidenced by the registered sale deed would automatically be accepted. The legislature advisedly has used the word 'may'. A discretion, therefore, has been conferred upon a Court to be exercised judicially, i.e., upon taking into consideration the relevant factors. Only because a document is admissible in evidence, the same by itself would not mean that the contents thereof stand proved. Having regard to the other materials brought on record, the Court may not accept the evidence contained in a deed of sale. (Ref. (2004) 8 S.C.C 270 para 28 and 38, Cement Corpn. Of India Ltd. Vs. Purya and others).
(x) While fixing the market value of the acquired land, the Land Acquisition Collector is required to keep in mind the following factors:
(a) Existing geographical situation of the land.
(b) Existing use of the land.
(c) Already available advantages, like proximity to National or State Highway or road and/ or developed area,
(d) Market value of other land situated in the same locality/ village/ area or adjacent or very near the acquired land.
(xi) Section 23(1) of the Act lays down what the Court has to take into consideration while Section 24 lays down what the Court shall not take into consideration and have to be neglected. The main object of the enquiry before the Court is to determine the market value of the land acquired. Market value is the price that a willing purchaser would pay to a willing seller for the property having due regard to its existing condition with all its existing advantages and its potential possibilities when led out in most advantageous manner excluding any advantage due to carrying out of the scheme for which the property is compulsorily acquired. The determination of market value is the prediction of an economic event viz. a price outcome of hypothetical sale expressed in terms of probabilities. For ascertaining the market value of the land, the potentiality of the acquired land should also be taken into consideration. Potentiality means capacity or possibility for changing or developing into state of actuality.
(xii) The question whether a land has potential value or not, is primarily one of fact depending upon its condition, situation, user to which it is put or is reasonably capable of being put and proximity to residential, commercial or industrial areas or institutions. The existing amenities like water, electricity, possibility of their further extension, whether near about town is developing.
(xiii) In fixing market value of the acquired land, which is undeveloped or under-developed, the Courts have generally approved deduction of 1/3rd of the market value towards development cost except when no development is required to be made for implementation of the public purpose for which land is acquired. Deduction of "development cost" is the concept used to derive the "wholesale price" of a large undeveloped land with reference to the "retail price" of a small developed plot. The difference between the value of a small developed plot and the value of a large undeveloped land is the "development cost".(Ref. (2012) 7 S.C.C 595 paras 16, 17, 18, 21 and 22, Sabhia Mohammed Yusuf Abdul Hamid Mulla (dead) and others).
(xiv) The circle rate flied by the Collector or valuation register maintained by the Revenue Authorities under the Stamp Act, 1899 are irrelevant and cannot form a valid criteria to determine market value of land acquired under the Act, 1894, unless such determination is under a statutory obligation and after following a prescribed procedure. Reference in this regard may be had to the judgment of Hon'ble Supreme Court in Jawajee Nagnatham v. Revenue Divisional Officer, Adilabad, A.P. and others, (1994) 4, SCC 595, the Land Acquisition Officer v. Jasti Rohini (1995)1 SCC 717, U.P. Jal Nigam v. M/s Kalra Properties (P) Ltd. (1996) 3 SCC 124, Krishi Utpadan Mandi Samiti v. Bipin Kumar, (2004) 2 SCC 283.
DEDUCTIONS 14- The principles regarding deduction to be applied while determining market value of a land for compensation under the Act, 1894, has been applied by Hon'ble Supreme Court, providing for deduction ranging up to 75% vide Brig. Sahib Singh Kalha Vs. Amritsar Improvement Trust, (1982) 1 SCC 419 (deductions between 40% and 53%), Administrator General of West Bengal Vs. Collector, Varanasi, (1988) 2 SCC 150 ( upheld deduction of 40%), Chimanlal Hargovinddas Vs. Special Land Acquisition Officer, Poona and another (supra),( deduction between 20% to 50%), Land Acquisition Officer Revenue Divisional Officer, Chottor vs. L. Kamalamma (Smt.) Dead by and others, (1998) 2 SCC 385, ( deduction of 40% as development cost), Kasturi and others vs. State of Haryana (supra), (1/3rd deduction was upheld on development),Land Acquisition Officer vs. Nookala Rajamallu and others, (2003) 12 SCC 334, ( 53% deduction), V. Hanumantha Reddy (Dead) Versus Land Acquisition Officer, (2003) 12 SCC 642, (37% deduction towards development), Viluben Jhalejar Contractor Versus State of Gujarat, (2005) 4 SCC 789, (20 to 50% towards development), Atma Singh Versus State of Haryana and another, (2008)2 SCC 568, (20% deduction towards largeness of area), Subh Ram and others Vs. State of Haryana and others, (supra), (where valuation of a large area of agricultural or undeveloped land has to be determined on the basis of sale price of a small developed plot, standard deductions would be 1/3rd towards infrastructural space and 1/3 towards infrastructural developmental cost, i.e. 2/3rd % i.e. 67%), Andhra Pradesh Housing Board Versus K. Manohar Reddy and others, (2010) 12 SCC 707, (deductions on account of development could vary between 20% to 75%), Special Land Acquisition Officer and another Versus M.K. Rafiq Sahib, (2011) 7 SCC 714, ( 60% deduction).
15- Recently, in Major General Kapil Mehra Vs. Union of India and another (2015)2 SCC 262, Hon'ble Supreme Court observed that while fixing market value of acquired land, Land Acquisition Collector is required to keep in mind the following factors:-
(i) Existing geographical situation of land.
(ii) Existing use of land.
(iii) Already available advantages, like proximity to National or State Highway or road and/ or developed area,
(iv) Market value of other land situated in the same locality/ village/ area or adjacent or very near the acquired land.
COMPARATIVE SALE METHOD OF MARKET VALUE 16- It is settled law that market value of the land acquired is determined with reference to the market sale of comparable land in the neighbourhood by a willing seller to a willing buyer on or before the date of preliminary notification i.e. under Section 4(1) of the Act 1894, as that would give a fair indication of market value.
17- With respect to factors of comparable sales, Hon'ble Supreme Court in Major General Kapil Mehra (supra) has referred to its earlier decision in Urban Water Supply and Drainage Board and Others Versus K.S. Gangadharappa and another, (2009) 11 SCC 164, and has observed that element of speculation is reduced to minimum if underlying principles of fixation of market value with reference to comparable sales are satisfied, i.e.,(i) when sale is within a reasonable time of the date of notification under Section 4(1); (ii) it should be a bona fide transaction; (iii)) it should be of the land acquired or of the land adjacent to the land acquired; and (iv) It should possess similar advantages.
AVERAGING- WHEN PERMISSIBLE 18- Where there are several exemplars showing different rates, it has been said that averaging is not permissible, if land acquired are of different types and different locations. But where there are several sales of similar land, more or less, at the same time, prices whereof have marginal variation, averaging thereof is permissible. It is further held that for the purpose of fixation of fair and reasonable market value of any type of land, abnormally high value or abnormally low value sales should be carefully discarded.
BELTING METHOD
19. In certain cases, where nature, extent, size, surrounding and location of the acquired land greatly varies, Courts have applied belting system to determine market rate of acquired land. It is applied in appropriate cases when different parcels of lands with different survey numbers belonging to different owners and having different locations, are acquired. Such chunk cannot be taken as a compact block.
20. In Belting System, acquired land is usually divided in two or three belts depending upon the facts of each case. Appreciating this aspect in Bijender and others Vs. State of Haryana and others (2018) 11 SCC 180 (Para 35),Hon'ble Supreme Court held as under :
"The market value of the front belt abutting the main road is taken to fetch maximum value whereas the second belt fetches two third or so of the rate determined in relation to the first belt and the third belt, if considered proper to carve out, fetches half or so of the maximum. It is again depending upon facts of each case."
21- In Union of India and others Vs. Mangatu Ram (1997) 6 SCC 59, a Three-Judge Bench of Hon'ble Supreme Court considered the question as to when belting system should be applied and held that when a large extent of land under acquisition comprises of lands of several persons and some lands are abutting the main road and some lands are in the interior, the same would not have the uniform rate of market value. Reasonable demarcation/classification should be made before determination of the compensation. Upholding the belting system to be applied in that case, Hon'ble Supreme Court observed that lands situated around 500 yards from the main road should be classified as 'A' class land. Irrespective of the quality of the land, an uniform rate of compensation should be applied to "A' class land. Remaining land should be placed in category 'B' and apply lesser rate. An argument was made that if different rates are applied, it will violate fundamental right of equality enshrined under Article 14. Rejecting it Hon'ble Supreme Court observed:
"It is equally settled law that Article 14 has no application vis-a-vis determination of the compensation for the obvious reason that it is hardly possible that all the lands are equal in all respects; they differ from one another and bear different features, e.g., nature, quality and character; therefore, all the lands do not command the same market value when they are sold to a willing purchaser by a willing vendor in the open market."
22- In a recent decision in the case of Manoj Kumar and other v. State of Haryana and others (2018)13 SCC 96 (Paragraphs 11,12, 13, 14, 16, 17, 18, 19, 20 and 23), Hon'ble Supreme Court considered the relevance of previous award/judgment for determination of compensation under Section 23 of the Act, 1894 and held as under :
"11. In our opinion, the High Court could not have placed an outright reliance on the decision of Swaran Singh's case, without considering the nature of transaction relied upon in the said decision. The decision could not have been applied ipso facto to the facts of the instant case. In such cases, where such judgments/awards are relied on as evidence, though they are relevant, but cannot be said to be binding with respect to the determination of the price, that has to depend on the evidence adduced in the case. However, in the instant case, it appears that the land in Swaran Singh's case was situated just across the road as observed by the High Court as such it is relevant evidence but not binding. As such it could have been taken into consideration due to the nearness of the area, but at the same time what was the nature of the transaction relied upon in the said case was also required to be looked into in an objective manner. Such decisions in other cases cannot be adopted without examining the basis for determining compensation whether sale transaction referred to therein can be relied upon or not and what was the distance, size and also bonafide nature of transaction before such judgments/awards are relied on for deciding the subsequent cases. It is not open to accepting determination in a mechanical manner without considering the merit. Such determination cannot be said to be binding.
12. We have come across several decisions where the High Court is adopting the previous decisions as binding. The determination of compensation in each case depends upon the nature of land and what is the evidence adduced in each case, may be that better evidence has been adduced in later case regarding the actual value of property and subsequent sale deeds after the award and before preliminary notification under section 4 are also to be considered, if filed. It is not proper to ignore the evidence adduced in the case at hand. The compensation cannot be determined by blindly following the previous award/judgment. It has to be considered only a piece of evidence not beyond that. Court has to apply the judicial mind and is supposed not to follow the previous awards without due consideration of the facts and circumstances and evidence adduced in the case in question. The current value reflected by comparable sale deeds is more reliable and binding for determination of compensation in such cases award/judgment relating to an acquisition made before 5 to 10 years cannot form the safe basis for determining compensation.
13. The awards and judgment in the cases of others not being inter parties are not binding as precedents. Recently, we have seen the trend of the courts to follow them blindly probably under the misconception of the concept of equality and fair treatment. The courts are being swayed away and this approach in the absence of and similar nature and situation of land is causing more injustice and tantamount to giving equal treatment in the case of unequal's. As per situation of a village, nature of land its value differ from the distance to distance even two to three-kilometer distance may also make the material difference in value. Land abutting Highway may fetch higher value but not land situated in interior villages.
14. The previous awards/judgments are the only piece of evidence at par with comparative sale transactions. The similarity of the land covered by previous judgment/award is required to be proved like any other comparative exemplar. In case previous award/judgment is based on exemplar, which is not similar or acceptable, previous award/judgment of court cannot be said to be binding. Such determination has to be out rightly rejected. In case some mistake has been done in awarding compensation, it cannot be followed on the ground of parity an illegality cannot be perpetuated. Such award/judgment would be wholly irrelevant.
16. To base determination of compensation on a previous award/ judgment, the evidence considered in the previous judgment/ award and its acceptability on judicial parameters has to be necessarily gone into, otherwise, /gross injustice may be caused to any of the parties. In case some gross mistake or illegality has been committed in previous award/judgment of not making deduction etc. and/or sufficient evidence had not been adduced and better evidence is adduced in case at hand, previous award/judgment being not inter-parties cannot be followed and if land is not similar in nature in all aspects it has to be out-rightly rejected as done in the case of comparative exemplars. Sale deeds are at par for evidentiary value with such awards of the court as court bases its conclusions on such transaction only, to ultimately determine the value of the property.
17. To rely upon judgment/award in case it does not form part of evidence recorded by reference court, an application under Order 41 Rule 27 is to be filed to adduce evidence and if it is allowed opposite party has to be given opportunity to lead evidence in rebuttal. The award/judgment cannot be taken into consideration while hearing arguments unless they form part of evidence in the case. A three- Judge Bench of this Court has considered the value of previous award and sale exemplar in The Land Acquisition Officer, City Improvement. Trust Board vs. H. Narayana & Ors. (1976) 4 SCC 9, judgment of the Court was accepted as relevant evidence under Order 41 Rule 27 by the High Court. Though, appeal was pending against it. This Court held that there could be no res judicata. In such cases, as the previous judgment was not inter-parties. The opposite party was not given opportunity by the High Court to show that land was different. The decision of High Court was held to be against the provisions of the Evidence Act which regulate admissibility of all evidence including judgments. Such judgments are in personam. This Court has observed:
"26. It is apparent that Section 43 enacts that judgments other than those falling under Sections 40 to 42 are irrelevant unless they fall under some other provision of the Evidence Act; and, even if they do fall under any such other provision, all that is relevant, under Section 43 of the Evidence Act, is "the existence" of such judgment, order, or decree provided it "is a fact in issue, or is relevant under some other provision of this Act". An obvious instance of such other provision is a judgment falling under Section 13 of the Evidence Act. The illustration to Section 13 of the Evidence Act indicates the kind of facts on which the existence of judgments may be relevant.
27. In Special Land Acquisition Officer, Bombay v. Lakhamsi Ghelabhai AIR 1960 Bom 78, Shelat, J. held that judgments not inter partes, relating to land acquired are not admissible merely because the land dealt with in the judgment was situated near the land of which the value is to be determined. It was held there that such judgments would fall neither under Section 11 nor under Section 13 of the Evidence Act. Questions relating to value of particular pieces of land depend upon the evidence in the particular case in which those facts are proved. They embody findings or opinions relating to facts in issue and investigated in different cases. The existence of a judgment would not prove the value of some piece of land not dealt with at all in the judgment admitted in evidence. Even slight differences in situation can, sometimes, cause considerable differences in value. We do not think it necessary to take so restrictive a view of the provisions of Section 11 and 13 of the Evidence Act as to exclude such judgments altogether from evidence even when good grounds are made out for their admission. In Khaja Fizuddin v. State of Andhra Pradesh (C.A. No. 176 of 1962, decided on April 10, 1963), a Bench of three Judges of this Court held such judgments to be relevant if they relate to similarly situated properties and contain determinations of value on dates fairly proximate to the relevant date in a case.
28. The Karnataka High Court had, however, not complied with provisions of Order 41 Rule 27 of the CPC which require that an appellate court should be satisfied that the additional evidence is required to enable it either to pronounce judgment or for any other substantial cause. It had recorded no reasons to show that it had considered the requirements of Rule 27 Order 41 of the CPC We are of opinion that the High Court should have recorded its reasons to show why it found the admission of such evidence to be necessary for some substantial reason. And if it found it necessary to admit it, an opportunity should have been given to the appellant to rebut any inference arising from its existence by leading other evidence.
29. The result is that we allow these appeals and set aside the judgment and order of the Karnataka High Court and direct it to decide the cases afresh on evidence on record, so as to determine the market value of the land acquired on the date of the notification under Section 16 of the Bangalore Act. It will also decide the question, after affording parties opportunities to lead necessary evidence, whether the judgment, sought to be offered as additional evidence, could be admitted. (Emphasis supplied by me)
18. This Court has clearly laid down that such judgment/award cannot be received in evidence and considered without giving an opportunity of rebuttal to opposite parties by adducing evidence. At the stage of appeal if award/ judgment has to be read in evidence an application has to be filed under Order 41 Rule 27 of the Act to take additional evidence on record and if allowed, opportunity to lead evidence in rebuttal has to be allowed.
19. In Printers House Pvt. Ltd. vs. Mst. Saiyadan (dead) by L.Rs. & Ors. (1994) 2 SCC 133, A three-Judge Bench of this Court had considered the value of previous awards and sale exemplar to be similar. It observed:
"16. If the comparable sales or previous awards are more than one, whether the average price fetched by all the comparable sales should form the ''price basis' for determination of the market value of the acquired land or the price fetched by the nearest or closest of the comparable sales should alone form the ''price basis' for determination of the market value of the acquired land, being the real point requiring our consideration here, we shall deal with it. When several sale-deeds or previous awards are produced in court as evidence of comparable sales, court has to necessarily examine every sale or award to find out as to what is the land which is the subject of sale or award and as to what is the price fetched by its sale or by the award made therefor.
17. If the sale is found to be a genuine one or the award is an accepted one, and the sale or award pertains to land which was sold or acquired at about the time of publication of preliminary notification under the Act in respect of the acquired land, the market value of which has to be determined, the court has to mark the location and the features (advantages and disadvantages) of the land covered by the sale or the award. This process involves the marking by court of the size, shape, tenure, potentiality etc. of the land. Keeping in view the various factors marked or noticed respecting the land covered by the sale or award, as the case may be, presence or absence of such factors, degree of presence or degree of absence of such factors in the acquired land the market value of which has to be determined, should be seen. When so seen, if it is found that the land covered by the sale or award, as the case may be, is almost identical with the acquired land under consideration, the land under the sale or the market value determined for the land in the award could be taken by the court as the ''price basis' for determining the market value of the acquired land under consideration. If there are more comparable sales or awards of the same type, no difficulty arises since the ''price basis' to be got from them would be common. But, difficulty arises when the comparable sales or awards are not of the same kind and when each of them furnish a different ''price basis'. This difficulty cannot be overcome by averaging the prices fetched by all the comparable sales or awards for getting the ''price basis' on which the market value of the acquired land could be determined. It is so, for the obvious reason that such ''price basis' may vary largely depending even on comparable sales or awards. Moreover, ''price basis' got by averaging comparable sales or awards which are not of the same kind, cannot be correct reflection of the price which the willing seller would have got from the willing buyer, if the acquired land had been sold in the market. For instance, in the case on hand, there are three claimants. The plots of their acquired land, which are five in number, are not similar, in that, their location, size, shape vary greatly. One plot of land of one claimant and another plot of another claimant appear to be of one type. Another plot of land of one of them appears to be of a different type. Yet another plot of the second of them appears to be different. Insofar as third claimant's plot of land is concerned, it appears to be altogether different from the rest. Therefore, if each of the claimants were to sell her/his respective plots of land in the open market, it is impossible to think that they would have got a uniform rate for their lands. The position cannot be different if the comparable sales or awards when relate to different lands. Therefore, when there are several comparable sales or awards pertaining to different lands, what is required of the court is to choose that sale or award relating to a land which closely or nearly compares with the plot of land the market value of which it has to determine, and to take the price of land of such sale or award as the basis for determining the market value of the land under consideration."
(Emphasis supplied by me)
20. In Karan Singh & Ors. vs. Union of India (1997) 8 SCC 186, this Court held that evidence has to be adduced to show similarity of the land in question to the one covered by previous award/judgment. This Court observed:
"8. Learned counsel for the appellants then urged that the High Court erroneously discarded Ext. A-11 which was an award in respect of a land at Village Jhilmil Tahirpur on the ground that it was not a previous judgment of the Court. The land comprised in the award was acquired under notification issued under Section 4 of the Act on 27-7-1981. By the said award, the Court awarded compensation @ Rs 625 per sq. yd. It has earlier been seen that in the present case the notification issued under Section 4 of the Act was earlier in point of time than the notification issued for acquisition of land comprised in Ext. A-11. There is no quarrel with the proposition that judgments of courts in land acquisition cases or awards given by the Land Acquisition Officers can be relied upon as a good piece of evidence for determining the market value of the land acquired under certain circumstances. One of the circumstances being that such an award or judgment of the court of law must be a previous judgment. In the case of Pal Singh v. Union Territory of Chandigarh(1992) 4 SCC 400, it was observed thus: (SCC pp. 402-03, para 5) "But what cannot be overlooked is, that for a judgment relating to value of land to be admitted in evidence either as an instance or as one from which the market value of the acquired land could be inferred or deduced, must have been a previous judgment of court and as an instance, it must have been proved by the person relying upon such judgment by adducing evidence aliunde that due regard being given to all attendant facts and circumstances, it could furnish the basis for determining the market value of the acquired land." Following this decision, we hold that it is only the previous judgment of a court or an award which can be made the basis for assessment of the market value of the acquired land subject to party relying on such judgment to adduce evidence for showing that due regard being given to all attendant facts it could form the basis for fixing the market value of acquired land." (Emphasis supplied)
23. Basic principle before following award/judgment or comparative sales is that land should be comparable in nature and quality as laid down in State of Madhya Pradesh vs. Kanshi Ram (2014) 100 SCC 506 and Hirabai & Ors. vs. Land Acquisition Officer-cum-Assistant Commission (2010) 10 SCC 492 and in close proximity of time to preliminary notification under section 4 of the Act. In the instant case, we hold that the High Court could not have followed the judgment in a blind manner as done without due consideration of various aspects".
(Emphasis supplied by me) 23- From the principles laid down in the case of Manoj Kumar (supra), it is clear that previous award/judgment is merely a piece of evidence and it may form part of evidence only if an application under Order 41 Rule 27 C.P.C. is filed to adduce evidence and if it is allowed, the opposite party has to be given opportunity to lead evidence in rebuttal.The award/judgment cannot be taken into consideration, while hearing arguments, unless they form part of evidence in the case. It is only the previous judgment of a Court or an award which can be made the basis for assessment of the market value of the acquired land subject to party relying on such judgments to adduce evidence for showing that due regard being given to all attendant facts it could form the basis for fixing the market value for acquired land. In case, some mistake has been done in awarding compensation, it cannot be followed; on the ground of parity as an illegality cannot be perpetuated. Therefore, such award/judgment would be wholly irrelevant. To base determination of compensation on a previous award/judgment the evidence in the previous judgment/award and its acceptability on judicial parameters has to be necessarily gone into, otherwise, gross injustice may be caused to any of the party. In case, some gross mistake or illegality has been committed in previous award/judgment of not making deduction etc. and/or sufficient evidence had not been adduced and better evidence is adduced in case at hand, previous award/judgment being not inter-parties cannot be followed and if land is not similar in nature in all aspects it has to be outrightly rejected as is done in the case of comparative exemplars. The sale deeds are at par for evidentiary value with such award of the Court as Court base its conclusion on such transaction only, to ultimate determine the market value of the property.
24- Section 23 of the Act clearly stipulates the principles for determination of compensation by court to be awarded for land acquired under the Act. The first principle clearly mandates that market value of acquired land shall be determined as prevailing on the date of publication of notification under Section 4(1) of the Act. In the present set of facts, the notification under Section 4(1) of the Act was published in the Gazette on 5.1.1982. Therefore, the market value of the acquired land has to be determined under the Act as on 5.1.1982.
25- In Bhupal Singh Vs. State of Haryana, (2015) 5 SCC 801 Hon'ble Supreme Court specifically considered similar question of determination of market value under Section 23 of the Act and held that the fair market value of the acquired land is required to be determined on the basis of the market rate of the adjacent lands similarly situated to the acquired lands prevailing on the date of acquisition or/ and prior to acquisition but not subsequent to the date of acquisition. Para-27 of the aforesaid judgment is reproduced below:
"27. As rightly argued by learned counsel for the respondent, the fair market value of the acquired land is required to be determined under Section 23 of the Act on the basis of the market rate of the adjacent lands similarly situated to the acquired lands prevailing on the date of acquisition or/and prior to acquisition but not subsequent to the date of acquisition. In appropriate cases, addition of 10% per annum escalation in the prices specified in the sale deeds (if filed and relied on) in relation to adjacent similarly situated lands for fixing the market value of the acquired land may be permitted. Such is, however, not the case in hand. Here is the case where firstly, no sale deeds were filed by the appellants to prove the fair market value of the acquired land and secondly, what they now want this Court to do is to take into consideration the rate of those lands which were acquired ten years after the date of acquisition in question and then reduce the value of such land by 10% every year so as to determine the fair market value of the acquired land in question. In our view, such procedure for determination is not provided in the Act."
(Emphasis supplied by me) 26- In the case of Union of India and another Vs. Raghubir Singh (dead) by LRs. Etc. (1989) 2 SCC 754 (para-33), Constitution Bench of Hon'ble Supreme Court considered the provisions of Section 23 and Section 11 of the Act and and held as under:
"33. We find substance in the contention of the learned Attorney General that if Parliament had intended that the benefit of enhanced solatium should be extended to all pending proceedings it would have said so in clear language. On the contrary, as he says, the terms in which Section 30(2) is couched indicate a limited extension of the benefit. The Amendment Act has not been made generally retrospective with effect from any particular date, and such retrospectivity as appears is restricted to certain areas covered by the parent Act and must be discovered from the specific terms of the provision concerned. Since it is necessary to spell out the degree of retrospectivity from the language of the relevant provision itself, close attention must be paid to the provisions of Section 30(2) for determining the scope of retrospective relief intended by Parliament in the matter of enhanced solatium. The learned Attorney General is also right when he points out that it was never intended to define the scope of the enhanced solatium on the mere accident of the disposal of a case in appeal on a certain date. Delays in the superior Courts extend now to limits which were never anticipated when the right to approach them for relief was granted by statute. If it was intended that Section 30(2) should refer to appeals pending before the High Court or the Supreme Court between April 30, 1982 and September 24, 1984, they could well refer to proceedings in which an award had been made by the Collector from anything between 10 to 20 years before. It could never have been intended that rates of compensation and solatium applicable to acquisition proceedings initiated so long ago should now enjoy the benefit of statutory enhancement. It must be remembered that the value of the land is taken under Section 11(1) and Section 23(1) with reference to the date of publication of the notification under Section 4(1), and it is that date which is usually material for the purpose of determining the quantum of compensation and solatium. Both Section 11(1) and Section 23(1) speak of compensation being determined on the basis, inter alia, of the market value of the land on that date, and solatium by Section 23(2), is computed as a percentage on such market value."
(Emphasis supplied by me) 27- In the case of Ashok Kumar and another Vs. State of Haryana, (2016) 4 SCC 544 (Para-12), Hon'ble Supreme Court considered situation of two acquired lands and held as under:
"In the case of the appellants herein, it is an admitted position that the properties do not abut the national highway. Admittedly, it is situated about 375 yards away from the national highway and it appears that there is only the narrow Nahan Kothi Road connecting the properties of the appellants to the national highway. Therefore, it will not be just and proper to award land value of Rs.250/- per square yard, which is granted to the property in adjoining village. Having regard to the factual and legal position obtained above, we are of the considered view that the just and fair compensation in the case of appellants would be Rs.200/- per square yard."
28- In view of provision of Section 23 of the Act and the law laid down by Hon'ble Supreme Court in Manoj Kumar (supra), Bhupal Singh (supra) and Raghubir Singh (supra), the market value of the acquired land in the present set of facts; cannot be determined at the same rate as has been determined in the case of Mangu and others (supra). The reason is that present acquisition was made on 5.1.1982 whereas in Mangu's case acquisition was made on 2.2.1991.
29- Having setforth the facts of the present case, principles of law for determination of compensation under Section 23 of the Act, evidentiary value of a previous award/judgment and determination of market value of acquired land on the basis of market value prevailing on the date of acquisition and/or prior to acquisition but not subsequent to the date of acquisition, now I proceed to examine the rival submissions and the evidences on record so as to determine the market value of the acquired land for compensation under section 23 of the Act.
30- Along with paper book filed on 18.2.2011, the appellant has merely filed copy of the memorandum of appeal (cross appeal arising out of A.L.R. No.28 of 1998), copy of the impugned judgment dated 17.8.1993 and the copy of the impugned decree dated 1.9.1993. Along with application under Order 41 Rule 23 C.P.C., copy of certain judgments including the judgment in the case of Mangu and others (supra) has been filed against which a counter affidavit has been filed by respondent NOIDA as discussed above briefly. Therefore, it would be relevant to look into the sale exemplars filed by the parties in evidence before the reference court, which are summarized as under:
SALE DEED/LEASE DEED EXEMPLARS FILED BY THE CLAIMANT-APPELLANTS BEFORE THE COURT BELOW Paper No. Date and Nature of Deed Name of seller Name of Purchaser Area/Village sold Consideration Rate 10 GA 23.8.1984 Sale-deed Shanti Devi Dayanand 1-14-0 102000 Bhangel Begampur Rs 30,000/-
per Bigha 13 GA 27.10.78 Sale-deed Yaseen Ummed Khan 1-5-0 Kakrala khawaspur Rs. 8000.00 Rs.1500/ 26 GA 29.12.81 Lease-deed of developed plot by NOIDA Noida Mahadevan P. Ramaswami 112.58 Verg Meter Noida Sector -26 Rs.20,812.50 Rs.153.38 per Sq. yard 28 GA 28.12.81 Sale-deed Sohan lal Mahaveer 0-2-0 Bhangel Begampur Rs. 7500.00 Rs. 25.00 per Sq. yard SALE DEED EXEMPLARS FILED BY NOIDA Paper No. Date of Deed Name of seller Name of Purchaser Area/Village sold Consideration Rate 47 GA 6.3.81 Shanker Kishan Kakrala khawaspur 8-7-0 Ka 1/6 Rs.67.50 Rs. 1.80 per Sq. Yard 48 GA 30.7.82 Raghuraj Smt. Krishna 0-5-0 Bhangel Begampur Rs. 7500.00 Rs.10.00 Sq yard 49 GA 14.4.81 Hukmi Fateh Kakrala khawaspur 3-8-13 Ka 1/3 Rs.15500.00 Rs.1.50 per Sq. yard 31- The sale-deed exemplars (Paper No.10Ga, 13Ga and 26 Ga) filed by the claimant-appellants were not found by the reference court to be good exemplars. Similarly, the sale -deed exemplars (Paper No.47Ga and 48 Ga) filed by NOIDA were not found to be good exemplars. The reference Court selected the sale-deed (Paper No.28Ga) as good exemplars for reason that this sale deed was of the land of a adjoining village and no sale-deed of village Kakrala Khwaspur of a date prior to the date of acquisition was available. At this stage, I need not to comment upon selection of the exemplar by the court below, since the respondent NOIDA has not challenged the impugned judgment.
32- After giving deduction of 20% towards largeness of the area acquired i.e., 274-14-4 pacca bigha, the court below determined the market value of the acquired land @ Rs.20/- per Sq. yard. Thus, the amount of compensation determined by the court below on the basis of sale deed of a plot measuring merely 0-2-0 bigha cannot be said to be inadequate. The sale-deed exemplar (Paper No.28Ga) filed by the claimant-appellants in evidence before the court below reflects the highest selling rate of a very small piece of land which has been made basis by the reference court to determine compensation of the acquired land measuring 274-14-4 bighas.
33- In the absence of any evidence in the form comparative sale-deed exemplars reflecting higher market value of land in proximity of the date of acquisition, the compensation determined by the reference court @ Rs. 20/- per Sq. yard based on a sale deed exemplar (paper No.28 Ga) cannot be said to be inadequate. Therefore, I do not find any good reason to interfere with the impugned judgment.
Question No.(ii)
(ii) Whether the Claimant-appellants are entitled for compensation of their land acquired by Notification dated 5.1.1982 at the same rate i.e., Rs.297/- per Sq. yard, as was determined in the case of Mangu and others (supra), which involved acquisition of land by notification dated 2.2.1991 ?
34- It is undisputed that the land of claimant-appellants was acquired by notification dated 5.1.1982. Therefore, the compensation of the acquired land in terms of Section 23 of the Act, 1894 and the law settled by Hon'ble Supreme Court in series of judgments, (as discussed above), shall be the prevailing market rate of similar land on 5.1.1982. The determination of compensation in the case of Mangu and others (supra), was with respect to the land acquired by notification dated 2.2.1991. Thus, the acquisition of land in the case of Mangu and others (supra) was made after about ten years of the acquisition involved in the present appeal.
35- Perusal of the judgment in the case of Mangu and others (supra), which has been reproduced above, would show that neither the date of acquisition as involved in the case of Mangu and others (supra) and 21 other similar connected first appeals was brought to the notice of the Court nor the Court was informed that 7 connected first appeals relate to acquisition dated 1.11.1977 and 8 first appeals relate to acquisition dated 5.1.1982. Totally uninformed of this most relevant fact for determination of market value in terms of Section 23 of the Act, it appears that an impression was given to the Court, that all first appeals connected with the appeals in the case of Mangu and others (supra) involved the same acquisition, i.e., the acquisition dated 2.2.1991. The judgment in the case of Mangu and others (supra) also does not refer to any evidence or considers the principles for determination of compensation as laid down in Section 23 of the Act, 1894 and in the judgment of Hon'ble Supreme Court in Chimanlal Hargovinddas (supra).
36- On the other hand, the impugned judgment has been passed on the basis of evidences in the form of sale-deed exemplars filed before the reference court. The sale deed exemplars filed and relied by the claimant-appellants of highest value, was accepted by the court below and after giving deduction of 20% towards largeness of area, the compensation was determined @ Rs.20/- per Sq. yard. Thus, neither any benefit of judgment in the case of Mangu and others (supra) can be extended to the claimant-appellants nor they can claim any parity on that basis nor it is a good evidence in view of the law laid down by Hon'ble Supreme Court in the case of Manoj Kumar and others (supra), Bhupal Singh (supra) and Raghubir Singh (dead) by LRs. (supra). For the same reason, the judgment in First Appeal No.1056 of 1999 (Raghuraj Singh and others v. State of U.P. and another), decided on 19.5.2010 is of no help to the claimant-appellants, inasmuch as the acquisition involved in it was dated 5.10.1989 of Village Bhangelpur and Begumpur, while the acquisition involved in the present appeal is of 5.1.1982. That apart the said judgment was passed with respect to two acquisitions, namely, acquisition dated 28.3.1986 and 5.1.1982 without consideration to any evidence.
37- For all the reasons stated above, it is held that the compensation determined by the court below by the impugned judgment is not inadequate. The claimant-appellants are not entitled to compensation of their land acquired on 5.1.1982 @ Rs.297/- per Sq. yard as was determined in case of Mangu and others (supra) with respect to the land acquired on 2.2.1991. Both the questions are answered accordingly.
38- For all the reasons stated above, I do not find any merit in this first appeal. Consequently, it is dismissed. There shall be no order as to costs.
Order Date :- 7.3.2019 Ak/