Allahabad High Court
Vimal Kumar Misra vs Collector Mainpuri And Others on 13 March, 2019
Author: Surya Prakash Kesarwani
Bench: Surya Prakash Kesarwani
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 59 1-Case :- FIRST APPEAL No. - 892 of 1995 Appellant :- Vimal Kumar Misra Respondent :- Collector Mainpuri And Others Counsel for Appellant :- H.O.K.Srivastava Counsel for Respondent :- Upendra Singh,Ajit Singh 2-Case :- FIRST APPEAL No. - 880 of 1995 Appellant :- Kabir Misra Respondent :- Collector Mainpuri And Others Counsel for Appellant :- H.O.K.Srivastava Counsel for Respondent :- P.K. Singhal,Ajit Singh Rana 3-Case :- FIRST APPEAL No. - 881 of 1995 Appellant :- Bhikham And Others Respondent :- Collector Mainpuri And Others Counsel for Appellant :- H.O.K.Srivastava,Arvendra Singh,Raghvendra Counsel for Respondent :- P.K. Singhal,Ajit Singh Rana 4-Case :- FIRST APPEAL No. - 882 of 1995 Appellant :- Sone Lal And Others Respondent :- Collector Mainpuri And Others Counsel for Appellant :- H.O.K.Srivastava Counsel for Respondent :- P.K. Singhal,Ajit Singh Rana 5-Case :- FIRST APPEAL No. - 883 of 1995 Appellant :- Rajiv Lochan Misra And Another Respondent :- Collector Mainpuri And Others Counsel for Appellant :- H.O.K.Srivastava Counsel for Respondent :- P.K. Singhal,Ajit Singh Rana 6-Case :- FIRST APPEAL No. - 884 of 1995 Appellant :- Nandan Misra Respondent :- Collector Mainpuri And Others Counsel for Appellant :- H.O.K.Srivastava Counsel for Respondent :- P.K. Singhal 7-Case :- FIRST APPEAL No. - 885 of 1995 Appellant :- Surendra Nath Misra And Another Respondent :- Collector Mainpuri And Others Counsel for Appellant :- H.O.K.Srivastava Counsel for Respondent :- P.K.Singhal 8-Case :- FIRST APPEAL No. - 886 of 1995 Appellant :- Hari Champa Ram Misra Respondent :- Collector Mainpuri And Others Counsel for Appellant :- H.O.K.Srivastava,K.B. Bhatt Counsel for Respondent :- P.K.Singhal,Ajit Singh (Rana) 9-Case :- FIRST APPEAL No. - 887 of 1995 Appellant :- Khanjan Respondent :- Collector Mainpuri And Others Counsel for Appellant :- H.O.K.Srivastava,K.B. Bhatt Counsel for Respondent :- P.K. Singhal 10-Case :- FIRST APPEAL No. - 888 of 1995 Appellant :- Surendra Nath Misra Respondent :- Collector Mainpuri And Others Counsel for Appellant :- H.O.K.Srivastava,K.B. Bhatt Counsel for Respondent :- P.K. Singhal 11- Case :- FIRST APPEAL No. - 889 of 1995 Appellant :- Ram Ratan And Others Respondent :- Collector Mainpuri And Others Counsel for Appellant :- H.O.K.Srivastava,Raghvendra Counsel for Respondent :- P.K.Singhal,S.C. 12-Case :- FIRST APPEAL No. - 890 of 1995 Appellant :- Wing Commander Bhavesh Kumar Misra Alias Bhavesh Misra Respondent :- Collector Mainpuri And Others Counsel for Appellant :- H.O.K.Srivastava Counsel for Respondent :- Upendra Singh,Ajit Singh (Rana),P.K. Singhal 13-Case :- FIRST APPEAL No. - 891 of 1995 Appellant :- Udal Singh And Others Respondent :- Collector Mainpuri And Others Counsel for Appellant :- H.O.K.Srivastava,Raghvendra Counsel for Respondent :- Upendra Singh,Ajit Singh (Rana),P.K. Singhal 14-Case :- FIRST APPEAL No. - 893 of 1995 Appellant :- Khagendra Nath Respondent :- Collector Mainpuri And Others Counsel for Appellant :- H.O.K.Srivastava Counsel for Respondent :- Upendra Singh,Ajit Singh (Rana),P.K. Singhal,Shri Kant 15-Case :- FIRST APPEAL No. - 894 of 1995 Appellant :- Bharat Champa Ram Misra Respondent :- Collector Mainpuri And Others Counsel for Appellant :- H.O.K.Srivastava Counsel for Respondent :- Upendra Singh,Ajit Singh Rana,P.K. Singhal 16-Case :- FIRST APPEAL No. - 895 of 1995 Appellant :- Benche Lal And Another Respondent :- Collector Mainpuri And Others Counsel for Appellant :- H.O.K.Srivastava Counsel for Respondent :- Upendra Singh,S.C. 17-Case :- FIRST APPEAL No. - 896 of 1995 Appellant :- Lal Man Respondent :- Collector Mainpuri And Others Counsel for Appellant :- H.O.K.Srivastava Counsel for Respondent :- Ajit Singh (Rana),P.K.Singhal 18-Case :- FIRST APPEAL No. - 520 of 1999 Appellant :- Munna Lal And Another Respondent :- Collector Mainpuri And Others Counsel for Appellant :- H.O.K.Srivastava Counsel for Respondent :- Ajit Singh Rana 19- Case :- FIRST APPEAL No. - 110 of 2006 Appellant :- Khyali Ram Verma And Others Respondent :- Collector Mainpuri And Others Counsel for Appellant :- H.O.K.Srivastava,Raghvendra Counsel for Respondent :- P.K. Singhal,Ajit Singh Rana,N.C. Tripathi,P.K. Singh Hon'ble Surya Prakash Kesarwani,J.
1- Learned counsel for the parties have no objection to the substitution applications pending in First Appeal No.885 of 1995 and First Appeal No.888 of 1995. Therefore, substitution applications are allowed after condoning the delay, if any. Necessary correction in the array of parties shall be carried out.
2- Heard Sri Satya Prakash holding brief of Sri H.O.K. Srivastava and Sri Arvendra Singh, learned counsels for the claimant-appellant, Sri Ajit Singh Rana and Sri Shrikant, learned counsels for the respondent respondent no.3, U.P. Avas Evam Vikas Parishad, U.P., Lucknow, and Sri P.P. Chaudhary, learned standing counsel for the State-respondents.
3- An affidavit of compliance of District Collector, Mainpuri, dated 11.3.2019 and two affidavits of compliance of Executive Engineer, U.P. Avas Evam Vikas Parishad, Construction Division, Sikandara Yojana, Agra, both dated 13.3.2019 have been filed today in compliance to the order dated 8.2.2019 and 27.2.2019, which are taken on record.
4- As per paragraph-7 of the aforesaid affidavit of the Collector, Mainpuri, 30 land acquisition references relating to land of Village Akuduia Dehat, were preferred and out of which 23 land acquisition references were decided by the reference court by the impugned common judgment dated 16.8.1994 passed by the District Judge, Mainpuri. The remaining references are pending before the reference court. Present 19 first appeals arise from the impugned common judgment. It has also been stated in para-7 that against the impugned common judgment 23 first appeals were also filed by U.P. Avas Evam Vikas Parishad, Lucknow, being First Appeal Nos. 706, 707, 708, 709, 710, 711, 712, 713, 714, 715, 716, 717, 718, 719, 720, 721, 722, 723, 724, 725, 726, 727 and 728, which all were dismissed by this Court by a common judgment dated 9.9.2008.
5- Since, all the present first appeals filed by the land owners arise from the impugned common judgment and the facts and evidences are common and as such with the consent of the learned counsel for the parties, all these first appeals are being heard together.
FACTS OF THE CASE 6- By notification dated 8.3.1980, under Section 28 of the U.P. Avas Evam Vikash Parishad Adhiniyam, 1965 (pari-materia with Section 4(1) of the Land Acquisition Act), the land measuring 39.41 acres of Village Akuduia Dehat, Pargana, Tehsil and District Mainpuri, were acquired. The notification under Section 32 of the Adhiniyam (pari-materia with Section 6 of the Land Acquisition Act) was issued on 23.10.1982. The possession of the land was taken on 26.6.1984. The Special Land Acquisition Officer passed the award on 22.9.1986 determining market value of levelled land @ Rs.18.10 per Sq. yard. After making deduction of 25% on account of the largeness of the area, the compensation of the levelled land was determined by the Special Land Acquisition Officer @ Rs.13.58 per Sq. yard. Out of the total acquired land of 39.41 acres, according to the SLAO, the land measuring 12.83 acres was lower in level than normal land and, therefore, he made further deduction of 25% for compensation for 12.83 acres land which he computed @ Rs.10.19 per Sq. yard.
7- As per award passed by the SLAO dated 22.9.1986 and the impugned judgment of the reference court dated 16.8.1994, the situation of the acquired land measuring 39.41 acres of village Akuduia Dehat, was as under:
(i) it is within the Municipal limit of Mainpuri City.
(ii) The acquired land is situate between Agra-Kanpur Byepass (Radha Raman Road) and Agra-Kanpur Highway (Kachehari Road).
(iii) The acquired land is surround-
(a) On Northern side- By Kachehari road, Collectorate, P.W.D. office, Planning Offie, Zila Parishad Office, residential area of Civil Lines, Developed area of Mainpuri Development Authority, District Jail, Police Lines, Nagla Pajawa Housing Scheme, residence of the District Judge and Abadi of village Akuduia.
(b) On Southern side- Abadi of Deopura, Housing and Industrial area of Deopura, Railway Station, District employment Exchange Office of Superintending Engineer, Tube Wells, residence of Executive Engineer, P.W.D.
(c) On Eastern side- Civil Courts, Offices and residential quarters of Executive Engineer Canal and Tube-well, Canal and Tube-well Departments and Inspection House Canal, Office and residential quarters of Manipuri Development Block and T.E.P. Centre, Abadi of Village Akuduia Dehat.
(d) On Western side- Mahabir Mills, District Hospital, Ram Chandra Singh Girls Degree College, Sehgal Rice Mills, D.A.V. College, Old Mainpuri Township, Ambedkar Nagar Housing Colony and business establishments, Christian Inter College ground, Kotwali Mainpuri, U.P. Roadways Busstand, Old Tehsil Office, Main market Mainpuri, Dharamshala, Old Hospital and District Co-operative Bank.
8- The SLAO obtained copies of the sale-deeds from the office of Sub-Registrar, Mainpuri, executed within three years before the date of acquisition. He segregated 14 sale-deeds exemplars in Ist set and has not considered it for determination of market value on the ground that these sale-deeds have been filed by interested persons i.e. claimants. The remaining sale-deeds numbering 16 were kept by him in the IInd set but again he did not consider these sale-deeds exemplars merely on an observation without any reason that these sale-deeds are not ideal sale-deeds. He chosen to rely upon a sale-deed of a land of another village i.e. Village Deopura, which is said to be an adjoining village. Some land of village Deopura was also acquired by a notification dated 8.3.1980 for the same purpose i.e. housing purpose. On the basis of this sale-deed exemplar, he determined the market value as aforementioned.
9- The SLAO relied upon a sale-deed being Exh. A3 dated 16.3.1979 (paper no.122-Ga) and after making deduction of 25% towards largeness of area and further deduction of 25% for low level land, determined compensation @ Rs.13.58 per Sq. yard for normal land and Rs.10.19 per Sq. yard for low level land.
10- Aggrieved with the determination of the compensation at the aforesaid rates, the claimants-appellants have filed these first appeals.
SUBMISSIONS 11- Learned counsel for the appellant submits that sale-deeds exemplars being Exh. Nos. 1,2,7,10 and 13 were of dates falling within three years prior to the date of acquisition, therefore, these sale-deeds were good exemplars to determine the market value of the acquired land. Exh. No.13 related to a nearby land of adjoining village Deopura, which could have also been considered as good exemplar for determining the market value of the acquired land. The reference court acted arbitrarily and illegally in relying upon a sale deed exemplar (Paper No.122-Ga), which relates to the sale of a land situate in a narrow lane and, therefore, it could not have been adopted to determine the market value of the acquired land situate on a very prime location. He submits that the deduction has been made on a very higher rate and, therefore, the deduction on account of largeness area and on account of low level should be reduced. He submits that three sale-deeds exemplars being Exhibit Nos. 1,10 and 13 were of lands situate in close proximity of the acquired land. Therefore, these sale-deeds, i.e. sale-deed dated 20.5.1977 for 2808 Sq. Feet, sale deed dated 24.5.1977 for 655 Sq. Feet and Sale-deed dated 12.2.1980 for 27275 Sq. Feet or 3030 Sq. Yards, disclosing selling rate per Sq. yard of Rs. 52/-, Rs. 54/- and Rs.58.50 were good exemplars for determination of market value. These sale-deeds were of period within three years from the date of acquisition and also represent the sale of bigger plots. He submits that even if the average selling rate is drawn on the basis of three sale-deeds, it would come about Rs.55/- per Sq. yard and after a reasonable deduction, the compensation of the acquired land should have been determined.
12- Learned counsel for U.P. Avas Evam Vikas Parishad, Lucknow, supports the impugned judgment and submits that the sale-deed exemplars (Paper No.122-Ga) was correctly relied by the reference court to determine compensation. He submits that the deduction should have been made at a higher rate and, therefore, the deduction does not require any interference.
13- I have carefully considered the submissions of the learned counsel for the parties.
DISCUSSION AND FINDING 14- With the consent of the learned counsel for the parties, the following question is framed for determination:
Whether the compensation of the acquired land determined by the court below is inadequate ?
15- The only controversy involved in present first appeals is as to whether court below has correctly determined compensation of the acquired land on the basis of sale-deed exemplars filed in evidence before it. The location of the acquired land as has been extracted above, is wholly undisputed. The spot inspection memo dated 12.10.1985 (Paper No.84Ga) was prepared by the SLAO, Agra in which he mentioned the location of the acquired land to be bounded by-
North- Agra-Mainpuri-Kanpur Highway at a little distance office of the District Magistrate, Mainpuri and District Jail, Mainpuri.
South- Acquired land of village Deopura and Railway Station. East- Radha Raman Byepass and on a little distance, Civil Court, Mainpuri. West- Sri Ram Chand Singh Degree College, D.A.V. College, Christian Ground and District Hospital and Mainpuri City.
16- In the aforesaid spot inspection report, he observed that the land of Village Deopura and the acquired land of the village in question i.e., Akuodiya are mostly similar. He found the acquired land to be of high potential value and observed as under :
"अर्जित की जाने वाली भूमि दॊ पक्की सड़को के मध्य तथा मैनपुरी शहर से लगी होने के कारण इसकी उपयोगिता बढ़ गयी है। यहां बिजली, पानी की सभी सुविधाये उपलब्ध है। अतः भूमि अच्छी कीमत की है। यह भूमि अधिकतर समतल है तथा इसके साथ साथ कुछ भूमि निचली भी पायी गयी जिसका विवरण प्रस्तावित अभिनिर्णय में किया जायेगा।"
17- A spot inspection was also made by the reference court in which similar facts were found, as found by the SLAO in his spot inspection, referred to above. In his spot inspection the reference court also made inspection of plot No.39 being subject matter of sale-deed dated 16.3.1979 (Paper no.122-Ga) measuring 1740 Sq. Feet and made observation in para-5 of the report, as under:
"The situation of plot no.39 was also inspected. The plots from which one sale deed has been taken as exemplar by the Special Land Acquisition Officer, Plot No.39 is situated amidst the Abadi in a lane 8' in width linked with a way 12'6" in width leading towards station road. This 12'6" wide way also leads to another way which has been closed by the boundary wall of District Hospital but people are using it by breaking the boundary wall on the spot".
18- From the facts as extracted above, it is clear that it is the admitted case of the respondents that the entire land has very high potential, it is valuable and its location is prime. The sale-deed exemplar (Paper No. 122Ga) relates to sale of plot No.39 which is in a very narrow lane of 8 Feet in width and is linked with a 12 Feet 6 Inch wide lane leading towards Station Road, whereas the acquired land is on a very prime location, as was found in the spot inspection by the SLAO and the court below. Undisputed location of the acquired land has already been extracted in para 7 above. Therefore, the sale deed exemplar being Paper No.122-Ga led in evidence by the respondents and relied by the court below, cannot be said to be a good exemplar, particularly, when better sale-deed exemplars were filed in evidence by the claimants-appellants and the genuineness of transactions of those sale-deeds exemplars were neither disputed nor doubted either by the respondents or by the court below.
19- Out of several sale deed exemplars, five Sale-deeds exemplars being Exhibit. Nos. 1, 2, 7,10 and 13 are of dates within three years prior to the date of present acquisition. Out of these five sale-deeds exemplars, the following sale-deeds exemplars are of bigger area, necessary details of which are being mentioned below:
Date of Sale-deed Exh. No. Plot No. Sold Area of Plot Consideration Rate Per Sq. Yard 20.5.1977 1 122( Part) 2808 Sq. Feet Rs. 16,200/-
Rs. 52/-
24.5.1977 10 122 (Part) 655 Sq. Feet Rs. 3,940/-
Rs. 54.19 12.2.1980 13 303 312 27275 Sq. Feet or 3030 Sq. Feet Rs. 27,468/-
Rs.58.50 per Sq. yard.
20- It has not been disputed before me by the respondents that these plots being subject matter of Exh. nos.1, 10 and 13 are near to the acquired land. Under the circumstances, the sale-deed exemplars of plots of similar location should have been considered for determination of market value of the acquired land and compensation should have been determined after giving reasonable deduction for largeness of area and further deduction with respect to low level land.
21- The reasons given by the reference court for not relying upon the Exhibit No.1, Exhibit No.10 and Exhibit No.13 are wholly unsustainable, inasmuch as, these sale-deed exemplars have been brushed aside observing that "It was Abadi and not an agriculture plot" whereas the sale deed exemplar (Paper No.122Ga) relied by the reference court, itself was a Abadi land situate in a very narrow lane.
22- Perusal of the sale-deed exemplars being Exh. Nos.10 and 13 reveals that the plots sold under these sale-deeds were not surrounded by houses or Abadi.
23- The Exh. No.10 (Sale-deed dated 24.5.1977 for part of Plot No.122) shows the boundaries as under :
East- Agriculture land of Satish Chandra and Diwakar Nath Chaubey. West- Plot of Ravendra Nath Singh and others North- "Gher Udal Kreta se Mila Hua South- Road.
24- Exh.No.13 being Sale-deed dated 12.2.1980 of Plot Nos.303 and 312 shows the boundaries as under:
East- Dada Deopura West- Annapurna Industrial Company.
North- Annapurna Industrial Company South- Araji and house of Manjar Nawaj Singh 25- 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)
26. 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)
(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 bonafide 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-
27- 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).
28- 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.
29- 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 30- 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.
31- In my view, compensation of the acquired land may be better determined by applying average selling rate disclosed by Exh. Nos.1 10 and 13, since these sale-deed exemplars are of sale of similar land with marginal price variation. The average selling rate comes to Rs. 54.90/- per Sq. yard which may be rounded off to Rs. 55/- per Sq. yard.
32- Keeping in mind the ratio of decision of Hon'ble Supreme Court in various judgments referred above, the size of plots sold under the sale-deeds exemplars being Exh. Nos. 1,10 and 13 and the area acquired (39.41 acres of Village Akuoudia), I find that a deduction of 30% towards largeness of the area would be justified to be applied to determine compensation of the levelled land. Thus, after deduction, the compensation of the levelled land comes to Rs. 38.5 per Sq. yard, which is rounded off to Rs.39/- per Sq. yard.
33- Since, a finding of fact has been recorded by the Court below on the basis of spot inspection and other evidences that some of the acquired land is low in level by about 2 Feet, therefore, with respect to such low level land a further deduction of 15% would be justified to determine true and fair market value of such land. Thus, compensation for low level land comes to Rs.33.15 per Sq. yard, which is rounded off to Rs.33/- per Sq. Yard.
34- Considering the facts and for all the reasons mentioned above, I determine the compensation of levelled acquired land @ Rs.39/- per Sq. yard and compensation of low level acquired land @ Rs.33/- per Sq. yard. The claimants-appellants shall be entitled to other statutory benefits in accordance with law. The impugned judgment and decree passed in Land Acquisition References of the present claimant-appellants are accordingly modified. All these first appeals are partly allowed, as indicated above.
Dt. 13.3.2019 Ak/