Himachal Pradesh High Court
Land Acquisition Collector vs Usha Devi & Ors on 30 March, 2016
Author: Rajiv Sharma
Bench: Rajiv Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
RFA Nos. 67, 68, 69, 70, 72, 73, 74, 75 and 81 of 2011
and CO Nos. 538/2012, 991/2012, 699/2011, 700/2011, 992/2012, 461/2011,
.
468/2012, 701/2011, 445/2012 and 848/2012
Reserved on:21.03.2016.
Decided on: 30.03.2016.
1. RFA No. 67 of 2011 (with CO No. 538/2012)
Land Acquisition Collector, H.P. Housing and Urban Development Authority.
......Appellant.
of
Versus
Usha Devi & ors. .......Respondents.
2. RFA No. 68 of 2011 (with CO No. 991/2012)
rt
Land Acquisition Collector, H.P. Housing and Urban Development Authority.
......Appellant.
Versus
Shashi Kala and others .......Respondents.
3. RFA No. 69 of 2011 (with CO No. 699/2011)
Land Acquisition Collector, H.P. Housing and Urban Development Authority.
......Appellant.
Versus
Kiran Bala & ors. .......Respondents.
4. RFA No. 70 of 2011 (with CO No. 700/2011)
Land Acquisition Collector, H.P. Housing and Urban Development Authority.
......Appellant.
Versus
Balraj Singh & ors. .......Respondents.
5. RFA No. 72 of 2011 (with CO No. 992/2012)
Land Acquisition Collector, H.P. Housing and Urban Development Authority.
......Appellant.
Versus
Usha Devi & ors. .......Respondents.
6. RFA No. 73 of 2011 (with CO No. 461/2011)
Land Acquisition Collector, H.P. Housing and Urban Development Authority.
......Appellant.
Versus
Santosh Kumari & ors. .......Respondents.
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2
7. RFA No. 74 of 2011 (with CO No. 468/2012)
Land Acquisition Collector, H.P. Housing and Urban Development Authority.
......Appellant.
.
Versus
Saroj Bala & ors. .......Respondents.
8. RFA No. 75 of 2011 (with CO No. 701/2011)
Land Acquisition Collector, H.P. Housing and Urban Development Authority.
......Appellant.
Versus
Jatinder Pal & ors. .......Respondents.
9. RFA No. 81 of 2011 (with CO No. 445/2012 and 848/2012)
of
Land Acquisition Collector, H.P. Housing and Urban Development Authority.
......Appellant.
Versus
Shashi Kala & ors. rt .......Respondents.
Coram
The Hon'ble Mr. Justice Rajiv Sharma, Judge.
Whether approved for reporting? Yes.
For the appellant(s): Mr. Bhupender Gupta, Sr. Advocate with Mr. Neeraj Gupta,
Advocate for HIMUDA in all the appeals.
For the respondents: Mr. K.D. Sood, Sr. Advocate with Mr. Sanjeev Sood, Advocate,
Mr. G.D. Verma, Sr. Advocate with Mr. B.C. Verma, Advocate,
Mr. Shyam Chauhan, Advocate, for the respective respondents.
Mr. Parmod Thakur, Addl. Advocate General, for the
respondent-State.
----------------------------------------------------------------------------------------------
Justice Rajiv Sharma, J.
Since these appeals arise from the common award dated 31.12.2010, all these were taken up together and are being disposed of by a common judgment.
2. "Key facts" necessary for the adjudication of these regular first appeals are that the Land Acquisition Collector, H.P. Housing & Urban Development Authority has filed these appeals against the award dated 31.12.2010 rendered by the learned Addl. District Judge, (FTC), Una, Distt.
Una, H.P. in LAC Petition Nos. 3/05 RBT 14/05/05, 4/05 RBT 13/05/05 ::: Downloaded on - 15/04/2017 20:00:50 :::HCHP 3 5/05 RBT 12/05/05, 7/05 RBT 11/05/05, 2/05 RBT 8/05/05, 6/05 RBT 6/05/05, 8/05 RBT 9/05/05, 10/05, RBT 7/05/05, 9/05 RBT 10/05/05.
.
The claimants have also filed the Cross-objection Nos. 538/2012, 991/2012, 699/2011, 700/2011, 992/2012, 461/2011, 468/2012, 701/2011, 445/2012 and 848/2012 for enhancement of the compensation. Notification under Section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as the Act) was issued by the Government of Himachal Pradesh on 21.6.2002 of with intention to acquire the land measuring 12-37-58 hectares in village Bharolia Khurd, Tehsil and Distt. Una, H.P. for the construction of Housing rt Colony. The notification was published in two vernacular local newspapers, namely, the "Ajeet Samachar" and the "Dainik Vir Partap" on 7.8.2002. The same was also published in the Rajpatra dated 15.7.2002. Public notice was also caused to be circulated through the Tehsildar, Una on 19.8.2002 in the vicinity. The Government of Himachal Pradesh after considering report under Section 5A of the Act, issued a notification under Sections 6 & 7 dated 1.7.2003. The land was got marked on the spot by the relevant revenue field agency of Una in the presence of the land owners. Notice under Section 9 of the Act was served upon the land owners to file their claim, if any, with regard to compensation and interest in the land being acquired. Few of the land owners filed objections through their learned Advocates against the acquisition of their land and demanded Rs. 20 lacs per kanal.
3. The Land Acquisition Collector awarded the following rates of the land:
::: Downloaded on - 15/04/2017 20:00:50 :::HCHP 4 Sr. Land under acquisition Rate per Total
No. sqm/Centar compensation
Classification Area (in
hect.)
.
1. Barani-Awwal 1-37-53 883.31 1,21,48,162.00
2. Bajan 10-80-84 76.94 83,15,983.00
Kadeem/Karateer/Banjer
Jadeed
3. Gair Mumkin 0-19-21 6.16 11,833.00
Total Land 12-37-58 Total Value 2,04,75,978.00
of
4. The claimants, feeling aggrieved, by the award No. 1 of 2004, dated 1.12.2004, rt filed Reference Petitions for enhancement compensation. The matters were consolidated and the evidence was recorded of the separately in LAC Petition No. 2/05 RBT 8/05/05 titled as Rajpal Singh vrs.
LAC, HPHUDA and in LAC petition No. 10/05 RBT 7/05/05 titled Vikram Singh & ors. vrs. State of H.P. through Collector Una, though it was advisable to record the evidence in one case only when the matters already stood consolidated. The learned Addl. District Judge, (FTC), Una, Distt. Una, H.P. enhanced the compensation to Rs. 883.31 paise per square meter, irrespective of the classification of the land taking into consideration that the land in question was acquired by the HPHUDA for the same purpose i.e. for construction of the Housing Colony alongwith statutory benefits. The HPHUDA has challenged the award dated 31.12.2010. Hence these appeals and cross-objections.
5. Mr. Bhupender Gupta, learned Sr. Advocate with Mr. Neeraj Gupta, Advocate, appearing for the appellants has vehemently argued that ::: Downloaded on - 15/04/2017 20:00:50 :::HCHP 5 there was no tangible evidence available on record justifying the enhancement of the compensation. According to him, undue reliance has .
been placed on award No. 1 of 2004 rendered by the Land Acquisition Collector. He lastly contended that deductions have not been made towards the development charges. On the other hand, M/S. G.D. Verma and R.K.Gautam, Sr. Advocates, for the respective respondents have argued that the compensation for sum of Rs. 883.35 paise, irrespective of the market of value of the land is on the lower side. The learned Reference Court has failed to take into consideration the sale deeds and other relevant evidence.
rt
6. I have heard learned Senior Advocates for the parties and gone through the award and records of the case carefully. I have taken into consideration the evidence recorded in LAC Petition No. 2/05 RBT 8/05/05 titled as Rajpal Singh vrs. LAC, HPHUDA and in LAC petition No. 10/05 RBT 7/05/05 titled Vikram Singh & ors. vrs. State of H.P. through Collector Una & anr.
7. PW-1 Jugal Kishore, Registration Clerk, Tehsil Office, Una has brought the requisitioned record pertaining to sale deed Vasika No. 2082 dated 31.10.2002. He also placed on record certified copy of sale deed Ext.
PW-1/A. He also placed on record certified copy of sale deed Vasika No. 386 dated 11.3.2003 Ext. PW-1/B. He also placed on record certified copy of sale deed Vasika No. 1159 dated 21.6.2005 Ext. PW-1/C, sale deed Vasika No. 1758 dated 12.9.2002 Ext. PW-1/D.
8. PW-2 Yashpal has proved expert report Ext. PW-2/A. ::: Downloaded on - 15/04/2017 20:00:50 :::HCHP 6
9. PW-3 B.S.Thakur, deposed that the Revenue Committee headed by him was formed by the Deputy Commissioner, Una for verifying the nature .
and market value of the land in question. The Committee submitted its report Ext. PW-2/A. In his cross-examination, he admitted that the value suggested by them was on the basis of Krishna Colony. There were about 200-250 plots in this Colony. There was provision for roads and drains.
10. PW-4 Pyare lal Bains has proved site plan Ext. PW-4/A. In his of cross-examination, he admitted that the acquired land was in the vicinity of Housing Board Colony, Rakkar. Durga Colony was also at a distance of half rt kilometer.
11. PW-5 Ravi Kishore, Jr. Draftsman, Town and country Planning, Una deposed that he has brought the requisitioned record. Krishna Colony is situated in village Bharolian Khurd. Krishna Colony is also known as Mehta Colony. He deposed that the old housing colony is adjacent to the proposed housing colony of HIMUDA. He also deposed that the nearby land is covered by residential colony. 2 or 3% area is kept as commercial area near those colonies. The development plan of the area is approved by the Director, Town and Country Planning.
12. PW-6 Jaswinder Singh has led his evidence by filing affidavit.
According to the averments made in the affidavit, the acquired land was situated adjacent to the HP Housing Board Colony Rakkar and also in the vicinity of Mount Carmel School, Office of Town and Country Planning, Office of Executive Engineer, I & PH, HPSEB offices. Housing Colony was also in the vicinity of the acquired land.
::: Downloaded on - 15/04/2017 20:00:50 :::HCHP 713. The learned Addl. District Judge (FTC) Una has not taken into consideration the evidence led by Raj Pal Singh. He has also led his evidence .
by filing affidavit. According to him, the acquired land is situated adjacent to Rakkar Colony and also in the vicinity of Mount Carmel School, Office of Town and Country Planning, Office of Executive Engineer, I & PH, HPSEB offices. Housing Colony was also in the vicinity of the acquired land. As such the acquired land was fit for construction of house buildings, commercial of complex etc. In his cross-examination, he has admitted that acquired land does not touch the Una Nangal road. He also admitted that near the north rt side of the acquired land there is Durga Colony. The land was also sold by co-villagers.
14. Sh. R.C.Bhatia has appeared as RW-1. He has led his evidence by filing affidavit. According to him, the acquired land was uneven. The respondents have provided provision of establishment of health centre, educational institutions, commercial establishment and community centre for the benefit of residents of the colony. The estimated amount of Rs. 2 crores was likely to be incurred for the construction of over head water storage tank, installation of tube well, pumping machinery, construction of pump house, construction of retaining walls, sewerage treatment plants and development of green spaces etc. In his cross-examination, he categorically admitted that this land was to be sold after carving plots and houses were to be constructed on them. He also admitted that the department has given compensation as per the revenue record. He also admitted that the acquired land was banjar, barani, chahi and land was acquired for the same purpose. He also admitted ::: Downloaded on - 15/04/2017 20:00:50 :::HCHP 8 that on eastern side of the acquired land there is Housing Board Colony and on the northern side, there is Durga Colony and Krishna Colony. According .
to him, the acquired land was at a distance of 600 meters from Una Nangal road. He also admitted specifically that in the close vicinity of acquired land, there is educational institution, Electricity Superintending Engineer Office and Transmission Division of HPSEB.
15. RW-2 Diwan Chand has also led his evidence by filing affidavit.
of According to him, 20% of the area was to be used for the construction of roads and lanes for the colony. The respondents have also made provisions rt for establishment of educational institutions in the colony for the benefit of the residents of the colony and around 3% out of the acquired land has been reserved for the purpose. Besides other facilities, playgrounds, parks and green spaces had been provided for the benefit of the residents of the colony.
In his cross-examination, he admitted that the department has carved out 215 plots in the acquired land and all of them have been sold out.
16. In addition to evidence in LAC Petition No. 2/05 RBT 8/05/05 titled as Rajpal Singh vrs. LAC, HPHUDA evidence rendered in LAC petition No. 10/05 RBT 7/05/05 titled Vikram Singh & ors. vrs. State of H.P. through Collector Una was also considered. The claimant Vikram Singh in this petition has appeared as PW-5. He has led his evidence by filing affidavit. It is specifically averred in the affidavit that the acquired land abuts the Municipal Committee as well as National Highway Una-Nangal road. The Housing Board Colony was in existence. There is old office of forest department. There are other colonies adjacent to his acquired land.
::: Downloaded on - 15/04/2017 20:00:50 :::HCHP 917. RW-1 R.C.Bhatia in his affidavit has deposed that respondents have spent approx. 3.20 crores of amount for leveling, construction of roads, .
external water scheme and external sewerage system over the acquired land and to make it feasible for the construction of residential colony. The estimated amount of Rs. 2 crores was likely to be incurred for the construction of over head water storage tank, installation of tube well, pumping machinery, construction of pump house, construction of retaining of walls, sewerage treatment plants and development of green spaces etc. In his cross-examination, he could not narrate as to how much area was plain and rt how much was uneven. He also admitted in his cross-examination that the acquired land was banjar, barani, chahi and land was acquired for the same purpose i.e construction of the housing colony. RW-2 Diwan Chand has deposed that considerable amount was require to mitigate the acquired land smooth and feasible for construction of housing colony. He deposed that 20% of the area was to be used for the construction of roads and lanes for the colony and 39% of the acquired land could be utilized for the construction of houses of different categories as detailed in the lay out plan. 29% of the land was remaining unutilized.
18. The appellant-HPHUDA have not placed on record any tangible evidence that an amount of Rs. 3.20 crores was spent for leveling the acquired land. It has also come on record that adjoining acquired land there is housing colony, Krishna Colony and Durga Colony. The land is about 600 meters away from the Una Nangal road. It has come in the evidence that the drains and roads were already constructed in these colonies. There are also ::: Downloaded on - 15/04/2017 20:00:50 :::HCHP 10 no estimates placed on record by the appellants that Rs. 2 crores were likely to be spent for water storage tank and construction of pump house etc. .
There are educational institutions also nearby the acquired land. The office of the Electricity Boards is also in close proximity of the acquired land. The acquired land falls with the Municipal limits of M.C. Una. The learned Reference Court has not taken into consideration the sale deeds proved on record by PW-1 Jugal Kishore. He has only taken into consideration the of award No. 1 of 2004 made by the Land Acquisition Collector.
19. The amount of compensation should be just and adequate. The rt notification under Section 4 of the Act was issued on 21.6.2002. The sale deeds proved by PW-1 Jugal Kishore are dated 31.10.2002, 11.3.2003, 12.9.2002 and 21.6.2005. PW-1 Jugal Kishore was, however, not cross-
examined. Vide Sale deed Ext. PW-1/A dated 31.10.2002 Devender Kumar sold land measuring 0-00-59 hect. to Surinder Pal for Rs. 75,000/-. Vide sale deed Ext. PW-1/B dated 11.3.2003 Tilak Raj sold land measuring 0-4-16 hect, 0-68-93 hect. to Surjeet Singh and Sushma Singh for Rs. 3,00,000/-.
Vide sale deed Ext. PW-1/C dated 21.6.2005, Viram Dass sold land measuring 0-27-07 hect to Asha Devi for Rs.16,00,000/-. Vide sale deed Ext.
PW-1/A dated 12.9.2002 Devender Kumar sold land measuring 0-02-00 hect.
and 1-10-26 hect. to Ram Pal for an amount of Rs. 3,50 lacs.
20. Their Lordships of the Hon'ble Supreme Court in Shaji Kuriakose and another versus Indian Oil Corporation Limited and others, (2001) 7 SCC 650 have laid down the following factors for determination of market value of acquired land inter alia:
::: Downloaded on - 15/04/2017 20:00:50 :::HCHP 111) The sale must be a genuine transaction;
2) that the sale deed must have been executed at the time proximate to the date of issue of notification under Section 4 of the Act, .
3) that the land covered by the sale must be in the vicinity of the acquired land,
4) that the land covered by the sales must be similar to the acquired land and
5) that the size of plot of the land covered by the sales be comparable to the land acquired.
Their Lordships have held as under:
of "[3] It is no doubt true that Courts adopt Comparable Sales Method of valuation of land while fixing the market value of the acquired land. While fixing the market value of the acquired land, Comparable Sales Method of valuation is preferred than other methods of valution of land such as Capitalisation of Net Income Method or Expert Opinion rt 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 has been sold in 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. There are certain factors which are required to be fulfilled and on fulfillment of those factors the compensation can be awarded, according to the value of the land reflected in the sales. The factors laid down inter alia are : (1) the sale must be a genuine transaction, that (2) the sale-deed must have been executed at the time proximate to the date of issue of notification under Section 4 of the Act, that (3) the land covered by the sale must be in the vicinity of the acquired land, that (4) the land covered by the sales must be similar to the acquired land and that (5) the size of plot of the land covered by the sales be comparable to the land acquired. If all these factors are satisfied, then there is no reason why the sale vlaue of the land covered by the sales be not given for the acquired land. However, if there is a dissimilarity in regard to locality, shape, site or nature of land between land covered by sales and land acquired, it is open to Court to proportionately reduce the compensation for acquired land than what is reflected in the sales depending upon the disadvantages attached with the acquired land. In the present case, what we find is that the first two factors are satisfied. The sale transaction covered by the sale Ex. A-4 is genuine, inasmuch as sale was executed in proximity to the date of notification under Section 4 of the Act. However, there is a difference in the similarity in the land acquired and the land covered by Ex.A-4. The land covered by Ex. A-4 is situated at Kottayam and Ernakulam, PWD Road, whereas the acquired land is situated at a distance of 3 furlong from the main road. There is no access to the acquired land and there exists only an internal mud road which belonged to one of the claimants, whose land has also been acquired. Further, the land coverd by Ex.A-4 is a dry land and whereas the acquired land is a wet land. After acquisition, the acquired land has to be re-claimed and a lot of amount would be spent for filling the land. Moreover, the land covered by Ex.A-4 relates to a ::: Downloaded on - 15/04/2017 20:00:50 :::HCHP 12 small piece of land which do not reflect the true market value of the acquired land. If it is often seen that a sale for a smaller plot of land fetches more consideration than larger or bigger piece of land. For all these reasons, the High Court was fully justified in lowering the rate of .
compensation than what was the market value of the land covered by Ex.A-4.We, therefore, do not find any infirmity in the judgment of the High Court."
21. Their Lordships of the Hon'ble Supreme Court in Viluben Jhalejar Contractor (Dead) by LRs versus State of Gujarat, (2005) 4 SCC 789 have culled out the following principles to determine the market value of of the acquired land:
[18] One of the principles for determination of the amount of compensation for acquisition of land would be the willingness of an informed buyer to offer the rt price therefore. It is beyond any cavil that the price of the land which a willing and informed buyer would offer would be different in the cases where the owner is in possession and enjoyment of the property and in the cases where he is not.
[21] Whereas a smaller plot may be within the reach of many, a large block of land will have to be developed preparing a layout plan, carving out roads, leaving open spaces, plotting out smaller plots, waiting for purchasers and the hazards of an entrepreneur. Such development charges may range between 20% and 50% of the total price."
22. Their Lordships of the Hon'ble Supreme Court in Atma Singh (Dead) through LRs and others vs. State of Haryana and another, (2008) 2 SCC 568 have succinctly explained the general principles for determination of market value of the acquired land. Their Lordships have held as under:
[4] In order to determine the compensation which the tenure- holders are entitled to get for their land which has been acquired, the main question to be considered is what is the market value of the land. 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. The expression 'market value' has been subject-matter of consideration by this Court in several cases. The 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. In considering market value disinclination of the vendor to part with his land and the urgent necessity of the purchaser to buy should be disregarded. The guiding star would be the conduct of hypothetical willing vendor who would offer the land and a ::: Downloaded on - 15/04/2017 20:00:50 :::HCHP 13 purchaser in normal human conduct would be willing to buy as a prudent man in normal market conditions but not an anxious dealing at arms length nor facade of sale nor fictitious sale brought about in quick succession or otherwise to inflate the market value. The determination of market value is the .
prediction of an economic event viz., a price outcome of hypothetical sale expressed in terms of probabilities. See Thakur Kanta Prasad v. State of Bihar, AIR 1976 SC 2219; Prithvi Raj Taneja v. State of M. P., AIR 1977 SC 1560; Administrator General of West Bengal v. Collector, Varanasi, AIR 1988 SC 943 and Periyar v. State of Kerala, AIR 1990 SC 2192.
[5] 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. It is well settled that market value of a property has to be determined having due regard to its existing condition with all its existing advantages and its potential possibility when led out in its most advantageous manner. The question of 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 or has prospect of development have to be taken into consideration. See Collector Raigarh v. Hari rt Singh Thakur, AIR 1979 SC 472, Raghubans Narain v. State of U.P., AIR 1969 SC 465 and Administrator General, W. B. v. Collector Varanasi, AIR 1988 SC
943. It has been held in Kaushalya Devi v. L.A.O. Aurangabad, AIR 1984 SC 892 and Suresh Kumar v. T.I. Trust, AIR 1980 SC 1222 that failing to consider potential value of the acquired land is an error of principle.
23. Their lordships of the Hon'ble Supreme Court in the case of Satish and others vrs. State of Uttar Pradesh and ors., reported in (2009) 14 SCC 758, have held that for a certified copy of a registered deed of sale, vendor and vendee thereof need not be examined. All deeds of sale which have been brought on record should have been taken into consideration. It has been held as follows:
"20. At the outset, it must be noticed that the learned Reference Judge as also the High Court refused to take into consideration a large number of deeds of sale relying on or on the basis of a decision of this Court in P. Venkaiah (supra). Section 51A of the Land Acquisition Act construction of which fell for consideration before this Court therein reads as under :
"51A. Acceptance of certified copy as evidence.
--In any proceeding under this Act, a certified copy of a document registered under the Registration Act, 1908 (16 of 1908), including a copy given under section 57 of that Act, may be accepted as evidence of the transaction recorded in such document."::: Downloaded on - 15/04/2017 20:00:50 :::HCHP 14
23. A Constitution Bench of this Court in Cement Corporation of India v. Purya & Ors. [(2004) 8 SCC 270] opined that by reason of the insertion of Section 51A, the Parliament merely enabled a party to get over the problem, namely calling for the original from the vendor or the .
vendee and proving the same and, thus, the decision of this Court in Special Deputy Collector & Anr. v. Kurra Sambasiva Rao & Ors. [(1997) 6 SCC 41] was held to be not laying down the correct proposition of law, holding :
"18. From the above, it is seen that till the judgment of the three Judge Bench in Narasaiah's case (supra), the consensus of judicial opinion was that Section 51A was enacted for the limited purpose of enabling a party to produce certified copy of a registered sale of transaction in evidence only and for proving the contents of the said document the parties had to lead oral evidence as contemplated in the Evidence Act.
19. A careful perusal of the judgment in Kurra Sambasiva Rao's rt case and other cases which fall in line with the said view discloses that they proceeded on the basis that prior to the insertion ofSection 51A in the LA Act, the Evidence Act did not permit the production of a certified copy of the registered sale transaction in evidence. Therefore, by the insertion of Section 51A the legislature merely enabled a party to get over that problem.
Thereafter, according to the said judgments, the party concerned had to prove the contents of the document by adducing oral evidence separately to prove the contents of the document.
20. The above view of the Court in Kurra Sambasiva Rao's case, in our opinion, is not the correct position in law. Even prior to the insertion of Section 51A of the Act the provisions of the Evidence Act and the Registration Act did permit the production of a certified copy in evidence. This has been clearly noticed in the judgment in Narsaiah's case wherein the court relying on Sections 64 and65(f) of the Evidence Act read with Section 57(5) of the Registration Act held that production of a certified copy of a registered sale document in evidence was permissible in law even prior to insertion of Section 51A in the LA Act.
We are in agreement with the said view expressed by this Court in Narasaiah's case."
The Constitution Bench, thus, laid down the law that for praying a certified copy of a registered deed of sale, the vendor and vendee thereof need not be examined.
26. This legal position, thus, being neither in doubt nor dispute, all the deeds of sale which have been brought on record subject to the ::: Downloaded on - 15/04/2017 20:00:50 :::HCHP 15 applicability thereof, therefore, in our opinion should have been taken into consideration."
24. Their lordships of the Hon'ble Supreme Court in the case of .
Trishala Jain and another vrs. State of Uttaranchal and another, reported in (2011) 6 SCC 47, have held that deduction on account of expenses of development of the sites could vary from 10% to 86.33% depending on the nature of the land, its situation, the purpose and stage of of development. Their lordships further held that the cases where the acquired land itself is fully developed and has all essential amenities, before acquisition, for the purpose for which it is acquired requiring no additional rt expenditure for its development, falls under the purview of cases of `no deduction'. Furthermore, where the evidence led by the parties is of such instances where the compensation paid is comparable, i.e. exemplar lands have all the features comparable to the proposed acquired land, including that of size, is another category of cases where principle of `no deduction' may be applied. These may be the cases where least or no deduction could be made. It has been further held that normally deduction is to be applied on account of carrying out development activities like providing roads or civic amenities such as electricity, water, etc. when the land has been acquired for construction of residential, commercial or institutional projects. The sale instances even of smaller plots could be considered for determining the market value of a larger chunk of land with some deduction unless, there was comparability in potential, utilization, amenities and infrastructure with hardly any distinction. Their lordships have allowed a deduction of 10% from ::: Downloaded on - 15/04/2017 20:00:50 :::HCHP 16 the market value on account of development charges and other possible expenditures. It has been held as follows:
.
"41. The cases where the acquired land itself is fully developed and has all essential amenities, before acquisition, for the purpose for which it is acquired requiring no additional expenditure for its development, falls under the purview of cases of `no deduction'. Furthermore, where the evidence led by the parties is of such instances where the compensation paid is comparable, i.e. exemplar lands have all the features comparable to the proposed acquired land, including that of size, is another category of cases where principle of `no deduction' may be applied. These may be of the cases where least or no deduction could be made. Such cases are exceptional and/or rare as normally the lands which are proposed to be acquired for development purposes would be agricultural lands and/or semi or haphazardly developed lands at the time of issuance of notification under Section 4(1) of the Act, which is the relevant time to be rt taken into consideration for all purposes and intents for determining the market value of the land in question.
44. It is thus evident from the above enunciated principle that the acquired land has to be more or less developed land as its developed surrounding areas, with all amenities and facilities and is fit to be used for the purpose for which it is acquired without any further expenditure, before such land could be considered for no deduction. Similarly the sale instances even of smaller plots could be considered for determining the market value of a larger chunk of land with some deduction unless, there was comparability in potential, utilisation, amenities and infrastructure with hardly any distinction. On such principles each case would have to be considered on its own merits.
45. This Court, depending on the facts and circumstances of each given case, has taken the view that deduction on account of expenses of development of the sites could vary from 10% to 86.33% depending on the nature of the land, its situation, the purpose and stage of development. Reference can be made to the cases of K.S. Shivadevamma v. Assistant Commissioner and Land Acqusition Officer [(1996) 2 SCC 62], Ram Piari v. Land Acquisition Collector, Solan [(1996) 8 SCC 338],Chimanlal Hargovinddas v. Special Land Acquisition Officer, Poona [(1988) 3 SCC 751], Hasanali Walimchand (Dead) by L` v. State of Maharashtra [(1998) 2 SCC 388]."
25. In view of the facts and circumstances of the case, in the instant case also, the acquired land is adjacent to the fully developed colonies. It has come on record that the land is plain and thus least expenditure was required ::: Downloaded on - 15/04/2017 20:00:50 :::HCHP 17 for developmental charges. However, the fact of the matter is that the learned Reference Court, once the specific ground was taken for deduction of .
development charges, should have addressed the issue.
26. Their lordships of the Hon'ble Supreme Court in the case of Wave Industries Private Ltd. vrs. Atar Singh and others, reported in (2011) 14 SCC 745, relying upon the ratio in Atma Singh's case, (2008) 2 SCC 568 have of allowed the deduction of 10% by way of development charges. It has been held as follows:
rt "[9] We shall first consider the question whether the Reference Court or for that reason the High Court should have made appropriate deduction towards the development cost. In cases involving the acquisition of land which is proposed to be utilized for the purpose of development, the Courts have generally approved deduction of l/3rd of market value towards development cost.
10. In Kasturi v. State of Haryana, 2003 1 SCC 354, the Court held:
7. ...It is well settled that in respect of agricultural land or undeveloped land which has potential value for housing or commercial purposes, normally 1/3rd amount of compensation has to be deducted out of the amount of compensation payable on the acquired land subject, to certain variations depending on its nature, location, extent of expenditure involved for development and the area required for roads and other civic amenities to develop the land so as to make the plots for residential or commercial purposes. A land may be plain or uneven, the soil of the land may be soft or hard bearing on the foundation for the purpose of making construction; may be the land is situated in the midstf a developed area all around but that land may have a hillock or may be low-lying or may be having deep ditches. So the amount of expenses that may be incurred in developing the area also varies. A claimant who claims that his land is fully developed and nothing more is required to be done for developmental purposes, must show on the basis of evidence that it is such a land and it is so located. In the absence of such evidence, merely saying that the area adjoining his land is a developed area, is not enough particularly when the extent of the acquired land is large and even if a small portion of the land is abutting the main road in the developed area, does not give the land the character of a developed area. In 84 acres of land ::: Downloaded on - 15/04/2017 20:00:50 :::HCHP 18 acquired even if one portion on one side abuts the main road, the remaining large area where planned development is required, needs laying of internal roads, drainage, sewer, water, electricity lines, providing civic amenities, etc. However, in cases of some .
land where there are certain advantages by virtue of the developed area around, it may help in reducing the percentage of cut to be applied, as the developmental charges required may-be less on that account. There may be various factual factors which may have to be taken into consideration while applying the cut in payment of compensation towards developmental charges, may be in some cases it is more than l/3rd and in some cases less than 1/ 3rd. It must be remembered that there is difference between a developed area and an area having potential value, which is yet of to be developed. The fact that an area is developed or adjacent to a developed area will not ipso facto make every land situated in the area also developed to be valued as a building site or plot, particularly when vast tracts are acquired, as in this case, for rt development purpose.
11. The rule of 1/3rd deduction was reiterated in Tejumal Bhojwani v. State of U.P., 2003 10 SCC 525, V. Hanumantha Reddy v. Land Acquisition Officer & Mandal Revenue Officer, 2003 12 SCC 642, H.P. Housing Board v. Bharat S. Negi, 2004 2 SCC 184 and Kiran Tandon v. Allahabad Development Authority, 2004 10 SCC 745.
12. In Lai Chand v. Union of India, 2009 15 SCC 769, the Court indicated that percentage of deduction for development to be made for arriving at market value of large tracts of undeveloped agricultural land with potential for development can vary between 20 and 75 per cent of the price of developed plots and observed:
"14. The 'deduction for development' consists of two components. The first is with reference to the area required to be utilised for developmental works and the second is the cost of the development works....
20. Therefore the deduction for the 'development factor' to be made with reference to the price of a small plot in a developed layout, to arrive at the cost of undeveloped land, will be for more than the deduction with reference to the price of a small plot in an unauthorised private layout or an industrial layout. It is also well known that the development cost incurred by statutory agencies is much higher than the cost incurred by private developers, having regard to higher overheads and expenditure."
13. In Subh Ram v. State of Haryana, 2010 1 SCC 444, this Court held as under:
"24. 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 ::: Downloaded on - 15/04/2017 20:00:50 :::HCHP 19 value of a small developed plot and the value of a large undeveloped land is the "development cost". Two factors have a bearing on the quantum (or percentage) of deduction in the "retail price" as development cost. Firstly, the percentage of deduction is decided with .
reference to the extent and nature of development of the area/layout in which the small developed plot is situated. Secondly, the condition of the acquired land as on the date of preliminary notification, whether it was undeveloped, or partly developed, is considered and appropriate adjustment is made in the percentage of deduction to take note of the developed status of the acquired land.
25. The percentage of deduction (development cost factor) will be applied 'fully where the acquired land has no development. But where the acquired land can be considered to be partly developed (say for of example, having good road access or having the amenity of electricity, water, etc.) then the development cost (that is, percentage of deduction) will be modulated with reference to the extent of development of the acquired land as on the date of acquisition. But under no circumstances, rtwill the future use or purpose of acquisition play a role in determining the percentage of deduction towards development cost."
14. However, in Atma Singh's case, the Court, while considering challenge to the fixation of market value of land acquired for a sugar factory, held that deduction of 10% would be reasonable. Paragraphs 15 and 16 of the judgment, which contain the reasons for this conclusion are reproduced below:
"15. The question to be considered is whether in the present case those factors exist which warrant a deduction by way of allowance from the price exhibited by the exemplars of small plots which have been filed by the parties. The land has not been acquired for a housing colony or government office or an institution. The land has been acquired for setting up a sugar factory. The factory would produce goods worth many crores in a year. A sugar factory apart from producing sugar also produces many byproducts in the same process. One of the by-products is molasses, which is produced in huge quantity. Earlier, it had no utility and its disposal used to be a big problem. But now molasses is used for production of alcohol and ethanol which yield lot of revenue. Another by-product begasse is now used for generation of power and press mud is utilised in manure. Therefore, the profit from a sugar factory is substantial. Moreover, it is not confined to one year but will accrue every year so long as the factory runs. A housing board does not run on business lines. Once plots are carved out after acquisition of land and are sold to public, there is no scope for earning any money in future. An industry established on acquired -land, if run efficiently, earns money or makes profit every year. The return from the land acquired for the purpose of housing colony, or offices, or institution cannot even remotely be compared with the land which has been acquired for the purpose of setting up a factory or industry. After all the factory cannot be set up without land and if such land is giving substantial return, there is no justification for making any deduction from the price exhibited by ::: Downloaded on - 15/04/2017 20:00:50 :::HCHP 20 the exemplars even if they are of small plots. It is possible that a part of the acquired land might be used for construction of residential colony for the staff working in the factory. Nevertheless, where the remaining part of the acquired land is contributing to production of goods yielding .
good profit, it would not be proper to make a deduction in the price of land shown by the exemplars of small plots as the reasons for doing so assigned in various decisions of this Court are not applicable in the case under consideration.
16. Having regard to the entire facts and circumstances of the case, we are of the opinion that a deduction of 10% from the market value of the land, which has been arrived at by the High Court would meet the ends of justice. Therefore, the market value of the acquired land for the of purpose of payment of compensation to the landowners has to be assessed at Rs. 1,08,000 per acre".
16. In our view, the ratio of Atma Singh's case deserves to be invoked in these appeals because the Respondents' land was acquired for a sugar factory. In rt other words, it will be appropriate to allow a deduction of 10% by way of development charges."
27. Their lordships of the Hon'ble Supreme Court in the case of Indraj Singh (dead) through LRs and others vs. State of Haryana and another, reported in (2013) 14 SCC 491, have permitted only deduction of 10% of value towards developments taking into consideration that the area appears to be well developed. It has been held as follows:
"10. Upon hearing the learned counsel and upon perusal of the impugned judgment and relevant records, we are of the view that the appellants should have been awarded more compensation. Deduction to the extent of 1/3rd of the value of the land is definitely harsh even as per the observations made by the High Court as the land in question is very much in the developed area. The area has been developed by the HUDA and therefore, the deduction of 1/3rd of the value of the land is not justified.
11. Upon considering all relevant facts, in our opinion, it would be absolutely just if 10% value of the land is deducted instead of 1/3rd because the land is forming part of a well developed area.
12. The High Court, after deduction of 1/3rd of the amount of the value has awarded Rs.7,43,000/- per acre for irrigated and non-irrigated land.::: Downloaded on - 15/04/2017 20:00:50 :::HCHP 21
The said value is after deduction of 1/3rd amount of total valuation of the land. The High Court has, thus, in fact, determined the market value of the land at Rs.11,15,000/- per acre and after deducting 1/3rd of the said amount, it has awarded Rs. 7,43,000/- per acre, after rounding off the .
figure.
13. The market value of the land in question, as determined by the High Court, is Rs. 11.15 lacs per acre and instead of taking 1/3rd, we direct that 10% of the said value shall be deducted. The claimants shall be entitled to other statutory benefits like solatium, interest etc. on the enhanced compensation."
28. Their lordships of the Hon'ble Supreme Court in the case of of Union of India vrs. Raj Kumar Baghal Singh & ors., reported in (2014) 10 SCC 422, have held that deduction towards development costs depends rt on individual fact situations and in this case their lordships have upheld deduction of 20%. It has been held as follows:
"9. We have considered the rival submissions. Before considering the merits of the rival contentions, we consider it appropriate to refer to the discussion on the issue by the High Court which is as follows:- "In the present case, situation is altogether different. While deciding issue regarding cut, referred to above, argument of counsel for the Union of India that cut imposed is required to be enhanced is also liable to be rejected. In view of situation the land under acquisition, as referred to above, cut imposed to the extent of 20% was perfectly justified. Counsel for the Union of India has tried to support his argument by citing various judgments but no benefit of those judgments can be extended to Union of India because at the time when matter was argued before Additional District Judge, no serious dispute was raised by Union of India regarding potential value of the land under acquisition. No evidence was led to show that the land acquired had no potential for developing it into residential or commercial area. Argument to impose higher cut was rightly rejected by the learned Single Judge, after taking note of evidence on record.
Argument of counsel for the Union of India that since the land was situated at a distance of 1 to 1-1/2 kms of municipal limits, as such, higher cut be imposed, is not justified, in view of evidence on record. It had come in evidence that the land under acquisition was situated next to the municipal limits and was situated very near to golf course. In view of this, no case is made out for further cut as prayed for.::: Downloaded on - 15/04/2017 20:00:50 :::HCHP 22
In the present case, learned Single Judge has rightly placed reliance to award compensation upon sale instance Ex. P-21 and Ex.P-22. While determining compensation, reliance has also been placed on statements PW 4, P27, PW10. It had come on record that land subject matter of sale .
instance, referred to above, was situated within a distance of 20 killas or less from the land under acquisition. Sale deed Ex. P23 was rightly ignored as it pertained to constructed house and there was no evidence on record to show that what was the value of land underneath the constructed portion of the house. Under these circumstances, this Court is of the opinion that award of compensation @ Rs.105.80 paisa per square yard to the claimants by the learned Single Judge was perfectly justified."
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10. It is well settled in determining compensation for acquired land, price paid in a bona fide transaction of sale by a willing seller to a willing buyer is adopted subject to such transaction being adjacent to acquired land, proximate to the date of acquisition and possessing similar advantages. Of course, there are other well known methods of valuation rt like opinion of experts and yield method. In absence of any evidence of a similar transaction, it is permissible to take into account transaction of nearest land around the date of notification under Section 4 of the Act by making a suitable allowance. There can be no fixed criteria as to what would be the suitable addition or subtraction from the value of the relied upon transaction. In Chimanlal Hargovinddas vs. Special Land Acquisition Officer, Poona and anr.[4], this Court summed up the principle as follows:-
"4. The following factors must be etched on the mental screen:
(1) ................
(2) ................ (3) ................
(4) ................
(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.
::: Downloaded on - 15/04/2017 20:00:50 :::HCHP 23(8) Only genuine instances have to be taken into account. (Sometimes 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.
(10) 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.
of (11) Having identified the instances which provide the index of market [pic]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-à-vis land under acquisition by placing the two in juxtaposition.
rt (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 thereafter 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 |2. situation in the |
|road |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 |4. lower level |
|developed area |requiring the |
| |depressed portion to |
| |be filled up |
|5. regular shape |5. remoteness from |
| |developed locality |
|6. level vis-à-vis |6. some special |
|land under |disadvantageous |
|acquisition |factor which would |
| |deter a purchaser |
::: Downloaded on - 15/04/2017 20:00:50 :::HCHP
24
|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 10,000 sq. yds. or more. Firstly while a smaller plot is within the reach of many, a of 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 [pic]deduction by way of an allowance at an appropriate rate ranging rt approximately between 20 per cent to 50 per cent 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 locked 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." Again in Viluben Jhalejar Contractor (D) by LRs. vs. State of Gujarat [5], it was observed:-
"24. The purpose for which acquisition is made is also a relevant factor for determining the market value. In Basavva v. Spl. Land Acquisition Officer, (1996) 6 SCC 640, deduction to the extent of 65% was made towards development charges.
25. In Bhagwathula Samanna, (1991) 4 SCC 506, it has been held: (SCC pp. 510-11, para 11) "11. The principle of deduction in the land value covered by the comparable sale is thus adopted in order to arrive at the market value of the acquired land. In applying the principle it is necessary to consider all relevant facts. It is not the extent of the area covered under the acquisition which is the only relevant factor. Even in the vast area there may be land which is fully developed having all amenities and situated in an advantageous position. If smaller area within the large tract is already developed and suitable for building purposes and have in its vicinity roads, drainage, electricity, ::: Downloaded on - 15/04/2017 20:00:50 :::HCHP 25 communications, etc. then the principle of deduction simply for the reason that it is part of the large tract acquired, may not be justified."
26. In L. Kamalamma, (1998) 2 SCC 385, this Court held: (SCC p. 387, .
para
6) "Ext. B-30 is a sale deed dated 9-8-1976, the transaction having taken place prior to eight months from the issue of the preliminary notification for acquisition of land in the present case. Having found that the piece of land referred in Ext. B-30 is situated very close to the lands that are acquired under the notification in question the Reference Court and the High Court relied upon the said document and, in our view, rightly. Further when no sales of comparable land were available where large of chunks of land had been sold, even land transactions in respect of smaller extent of land could be taken note of as indicating the price that it may fetch in respect of large tracts of land by making appropriate deductions such as for development of the land by providing enough space for roads, sewers, drains, expenses involved in formation of a rt layout, lump sum payment as also the waiting period required for selling the sites that would be formed."
27. In Administrator General of W.B. v. Collector, (1988) 2 SCC 150, deduction to the extent of 53% was allowed.
28. In K.S. Shivadevamma v. Asstt. Commr. and Land Acquisition Officer, (1996) 2 SCC 62, it was held: (SCC p. 65, para 10) "10. It is then contended that 53% is not automatic but depends upon the nature of the development and the stage of development. We are inclined to agree with the learned counsel that the extent of deduction depends upon development need in each case. Under the Building Rules 53% of land is required to be left out. This Court has laid as a general rule that for laying the roads and other amenities 33-1/3% is required to be deducted. Where the development has already taken place, [pic]appropriate deduction needs to be made. In this case, we do not find any development had taken place as on that date. When we are determining compensation underSection 23(1), as on the date of notification under Section 4(1), we have to consider the situation of the land development, if already made, and other relevant facts as on that date. No doubt, the land possessed potential value, but no development had taken place as on the date. In view of the obligation on the part of the owner to hand over the land to the City Improvement Trust for roads and for other amenities and his requirement to expend money for laying the roads, water supply mains, electricity etc., the deduction of 53% and further deduction towards development charges @ 33- 1/3%, as ordered by the High Court, was not illegal."
29. In Hasanali Khanbhai & Sons v. State of Gujarat (1995) 5 SCC 422 and Land Acquisition Officer v. Nookala Rajamallu, (2003) 12 SCC 334 :
(2003) 10 Scale 307, it has been noticed that where lands are acquired ::: Downloaded on - 15/04/2017 20:00:50 :::HCHP 26 for specific purposes deduction by way of development charges is permissible.
30. We are not, however, oblivious of the fact that normally one-third .
deduction of further amount of compensation has been directed in some cases. (See Kasturi v. State of Haryana, (2003) 1 SCC 354, Tejumal Bhojwani v. State of U.P., (2003) 10 SCC 525, V. Hanumantha Reddy v. Land Acquisition Officer & Mandal R. Officer, (2003) 12 SCC 642, H.P. Housing Board v. Bharat S. Negi, (2004) 2 SCC 184 and Kiran Tandon v.
Allahabad Development Authority, (2004) 10 SCC 745.)
31. In Registrar, University of Agricultural Sciences5 whereupon Mr Ranjit Kumar placed strong reliance, the Court noticed that if the of acquisition is made for agricultural purpose, question of development thereof would not arise; but if the sale instance was in respect of a small piece of land whereas the acquisition is for a large piece of land, although development cost may not be deducted, there has to be deduction for largeness of the land and also for the fact that these are agricultural rt lands. In that view of the matter, deduction at the rate of 33% made by the High Court was upheld. It may not, therefore, be correct to contend, as has been submitted by Mr. Ranjit Kumar, that there cannot be different deductions, one for the largeness of the land and another for development costs."
29. Their lordships of the Hon'ble Supreme Court in the case of Bhupal Singh and Others vs. State of Haryana, reported in (2015) 5 SCC 801, have held that appropriate deductions are also required to be made and from a discussion of case laws it appears that a deduction of 20% to 75% may be valid, depending on the extent to which the acquired land is required to be developed. It has been held as follows:
"18. Law on the question as to how the Court is required to determine the fair market value of the acquired land is fairly well settled by several decisions of this Court and remains no more res integra. This Court has, inter alia, held that when the acquired land is a large chunk of undeveloped land having potential and was acquired for residential purpose then while determining the fair market value of the lands on the date of acquisition, the appropriate deductions are also required to be made.
19. It is apposite to take note of some of the decisions of this Court on the issue relevant for the disposal of these appeals:::: Downloaded on - 15/04/2017 20:00:50 :::HCHP 27
19.1 In Brig. Sahib Singh Kalha & Ors. v. Amritsar Improvement Trust & Ors., (1982) 1 SCC 419, this Court opined that where a large area of undeveloped land is acquired, provision has to be made for providing minimum amenities of town life. Accordingly, it was held that a .
deduction of 20% of the total acquired land should be made for land over which infrastructure has to be raised (space for roads, etc.). Apart from the aforesaid, it was also held that the cost of raising infrastructure itself (like roads, electricity, water, underground drainage, etc.) needs also to be taken into consideration. To cover the cost component for raising infrastructure, the Court held that the deduction to be applied would range between 20% to 33%. Commutatively viewed, it was held, that deductions would range between 40% and 53%.
of 19.2 In Chimanlal Hargovinddas v. Special Land Acquisition Officer, Poona & Anr. (1988) 3 SCC 751 while referring to the factors which ought to be taken into consideration while determining the market value of the acquired land, it was observed that a smaller plot was within the reach of many whereas for a larger block of land there were implicit rt disadvantages. As a matter of illustration, it was mentioned that a large block of land would first have to be developed by preparing its layout plan. Thereafter, it would require carving out roads, leaving open spaces, plotting out smaller plots, waiting for purchasers (during which the invested money would remain blocked). Likewise, it was pointed out that there would be other known hazards of an [pic]entrepreneur. Based on the aforesaid likely disadvantages it was held that these factors could be discounted by making deductions by way of allowance at an appropriate rate ranging from 20% to 50%. These deductions, according to the Court, would account for land required to be set apart for developmental activities. It was also sought to be clarified that the applied deduction would depend on, whether the acquired land was rural or urban, whether building activity was picking up or was stagnant, whether the waiting period during which the capital would remain locked would be short or long; and other like entrepreneurial hazards.
19.3 In Kasturi & Ors. v. State of Haryana, (2003) 1 SCC 354, this Court opined that in respect of agricultural land or undeveloped land which has potential value for housing or commercial purposes, normally 1/3rd amount of compensation should be deducted depending upon the location, extent of expenditure involved for development, the area required for roads and other civic amenities, etc. It was also opined that appropriate deductions could be made for making plots for residential and commercial purposes. It was sought to be explained that the acquired land may be plain or uneven, the soil of the acquired land may be soft or hard, the acquired land may have a hillock or may be low-lying or may have deep ditches. Accordingly, it was pointed out that expenses involved for development would vary keeping in mind the facts and circumstances of each case. In Kasturi case, it was held that normal deductions on account of development would be 1/3rd of the amount of ::: Downloaded on - 15/04/2017 20:00:50 :::HCHP 28 compensation. It was, however, clarified that in some cases the deduction could be more than 1/3rd in other cases even less than 1/3rd.
19.4 In Lal Chand v. Union of India & Anr., (2009) 15 SCC 769, it was .
held that to determine the market value of a large tract of undeveloped agricultural land (with potential for development), with reference to sale price of small developed plot(s), deductions varying between 20% to 75% of the price of such developed plot(s) could be made.
19.5 In A.P. Housing Board v. K. Manohar Reddy & Ors., (2010) 12 SCC 707, having examined the existing case law on the point it was concluded that deductions on account of development could vary between 20% to 75%. In the peculiar facts of the case, a deduction of of 1/3rd towards development charges was made from the awarded amount to determine the compensation payable.
19.6 In Special Land Acquisition Officer & Anr. v. M.K. Rafiq Saheb, (2011) 7 SCC 714, this Court after having concluded that the land which rt was the subject-matter of acquisition was not agricultural land for all practical purposes and no agricultural activities could be carried out on it, concluded that in order [pic]to determine fair compensation, based on a sale transaction of a small piece of developed land (though the acquired land was a large chunk), the deduction made by the High Court at 50%, ought to be increased to 60%.
20. After taking note of the aforesaid cases and placing reliance upon the principles laid down therein, this Court in Chandrashekar and Others, (supra) observed as under:
"20. It is essential to earmark appropriate deductions out of the market value of an exemplar land, for each of the two components referred to above. This would be the first step towards balancing the differential factors. This would pave the way for determining the market value of the undeveloped acquired land on the basis of market value of the developed exemplar land."
21. As far back as in 1982, this Court in Brig. Sahib Singh Kalha case held, that the permissible deduction could be up to 53%. This deduction was divided by the Court into two components. For the "first component" referred to in the foregoing paragraph, it was held that a deduction of 20% should be made. For the "second component", it was held that the deduction could range between 20% to 33%. It is therefore apparent that a deduction of up to 53% was the norm laid down by the Court as far back as in 1982. The aforesaid norm remained unchanged for a long duration of time, even though, keeping in mind the peculiar facts and circumstances emerging from case to case, different deductions were applied by this Court to balance the differential factors between the exemplar land and the ::: Downloaded on - 15/04/2017 20:00:50 :::HCHP 29 acquired land. Recently however, this Court has approved a higher component of deduction.
22. In 2009 in Lal Chand case and in 2010 in A.P. Housing .
Board case it has been held that while applying the sale consideration of a small piece of developed land, to determine the market value of a large tract of undeveloped acquired land, deductions between 20% to 75% could be made. But in 2009 in Subh Ram case, this Court restricted deductions on account of the "first component" of development, as also, on account of the "second component" of development to 33% each. The aforesaid deductions would roughly amount to 67% of the component of the sale consideration of the exemplar sale transaction(s)."
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30. In view of the definitive law laid down by the Hon'ble Apex Court, this Court is of the considered view that the Reference Court ought to have rt allowed 20% deduction towards development charges. The Court has already noticed that the learned Reference Court has not discussed the entire evidence in right perspective. The sale deeds Ext. PW-1/A to PW-1/C have been overlooked. The sale deeds are in proximity to the date of notification under Section 4 of the Act, except one sale deed, which is of the year 2005.
These are of the adjoining pieces of lands and even if deductions are made for smaller, exemplar, the claimants are entitled to 20% increase over and above what has been directed by the learned Reference Court on the basis of the Award made by the Land Acquisition Collector. Though, I hasten to add that the learned Reference Court was justified in granting uniform rate since land acquired was for the same purpose i.e. construction of housing colony, the learned Reference Court has overlooked that the land acquired was in the limits of M.C. Una. It was adjacent to the National Highway. Educational institutions and well developed colonies were in proximity to the acquired land. The value of the land is in proximity to the date of notification under ::: Downloaded on - 15/04/2017 20:00:50 :::HCHP 30 Section 4 of the Act. These factors are also required to be taken into consideration while granting compensation. However, in the interest of justice .
and in order to balance the equities, award made by learned Reference Court is not required to be modified since 20% of the amount which is ordered to be deducted towards development charges is bound to be set off by 20% increase on the basis of exemplar sale deeds.
31. The appeals and cross-objections are accordingly disposed of of without modifying the Award of the learned Reference Court dated 31.12.2010. The Award is upheld for the reasons stated herein above.
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March 30, 2016 (Rajiv Sharma)
(Karan) Judge
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