Madhya Pradesh High Court
Devendra Prasad Pandey vs The State Of M.P. on 22 November, 2016
1
HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT AT
JABALPUR
(SINGLE BENCH : HON'BLE SHRI JUSTICE J.P.GUPTA)
First Appeal No.392/1998
Dinendra Prasad Pandey
Vs.
State of Madhya Pradesh
First Appeal No.395/1998
Surendra Prasad and another
Vs.
State of Madhya Pradesh
Shri Atulanand Awashty, Advocate with Miss.Sudipta Choubey,
Advocate for the appellants.
Shri Vijay Kumar Pandey, Advocate for the respondent/State.
Whether approved for reporting : (Yes/No).
JUDGMENT
(22.11.2016) This judgment shall govern the disposal of both the aforesaid First Appeals, as common question is involved in both the appeals and parties and subject matter are common.
2. First Appeal No.392/1998 has been filed against the judgment dated 28.4.1998 passed in Land Acquisition Case No.6/85 whereas F.A.No.395/1998 has been filed against the judgment dated 28.4.1998 passed in Land Acquisition Case No.7/85 by Second Addl. District Judge, Hoshangabad, on the reference made by the appellants under section 18 of the Land Acquisition Act against the award dated 26.7.1974 passed in Revenue Case No.133-M.D.A./82/71-72 whereby the land bearing survey no.346/5, area 1.5 acres = situated at Itarsi, Tahsil and District Hoshangabad, which was of the ownership of the 2 appellant, was acquired by the notification dated 1.3.1972 under section 4 of the Land Acquisition Act for the purpose of construction / widening of the road. It is also not disputed that in both the cases, the Land Acquisition Officer determined the market value of the acquired land on the basis of belting system in which the land situated in front of the road, i.e. 0.66 acres was valued at the rate of Rs.1.25 per sqft. and the rest of the land valued at the rate of Rs.3,938/- per acres along with other statutory benefits.
3. The learned Reference Court found the aforesaid assessment of market value of the land to be just and proper and adjudicated accordingly.
4. In both the appeals, the appellants have objected that the approach of the Land Acquisition Officer and the learned Reference Court is contrary to law. The entire acquired land at the time of acquisition had the potential value for the purpose of residential and commercial construction. Therefore, determination of market value applying the belting system is not proper and justifiable. Even when the acquired area is larger, it cannot be divided in different parts for determination of value when the whole area has the same potentiality. On the evidence adduced by the party before the learned Reference court and the fact that the Land Acquisition Officer itself considered the front portion of the land useful for the construction of houses and fixed the value at the rate of Rs.5 per sqft, the value of the rest of the land cannot be fixed differently. Apart from it, the value of the land was Rs.5/- to Rs.7/- per sqft. In the year 1972, other lands acquired in the area were also valued at the rate of Rs.5/- per sqft. Therefore, the appellants is also entitled to minimum at the rate of Rs.5/- per sqft. market value of the land. Hence, it is prayed that the appeal be allowed and the impugned order be set aside and the respondents be directed to pay the compensation on the basis of market value of the land at the rate of Rs.5 per sqft. for the entire land along with other statutory benefits.
35. On behalf of the respondents, it is submitted that the impugned judgment does not require any interference as it is legal and in accordance with law, hence the appeal be dismissed.
6. Having heard learned counsel for the parties and on perusal of the record, following question arise for determination of this appeal :-
i) Whether the entire acquired land have a same potential value, therefore, the appellants are entitled to compensation on the basis of market value of the land at the rate of Rs.5 per sqft. along with other statutory benefits ?
ii) Relief and cost ?
7. Question No.1 : On perusal of record of the learned Reference Court, it is clear that appellants Dinendra Pandey, PW1, Ayodhya Prasad, PW2, have categorically stated in their statements that the entire land is situated in the Municipal Council of Itarsi on the roadside of Itarsi Nagpur Highway and near the acquired land residential houses are situated and the entire land can be used for the residential and commercial construction. This statement has not been challenged during the cross examination. The Land Acquisition Officer itself determined the market value of one part of the land considering the potentiality regarding residential and commercial use of the land.
Therefore, there is no hesitation in holding that the entire acquired land had the potentiality for residential and commercial use. In the aforesaid circumstances, belting system cannot be said to be justifiable. In this regard, reference of the judgment of the Apex Court in the case of Land Acquisition Officer, Revenue Divisional Officer, Chittor Vs. L.Kamalamma, AIR 1998 SC 781, would be profitable, wherein it is held that :-
7. The argument advanced by Shri Nageshwar Rao that the classification by Land Acquisition Officer was in order and ought not to have been interfered with by the Reference Court or the High Court does not appeal to us. When a land is acquired which has the potentiality of being developed into an urban land, merely because some portion of it abuts the main road, higher rate of compensation should be paid while in respect of the lands on the interior side should be at lower rate may not stand to reason because when sites are formed those abutting the main road may have its advantages as 4 well as disadvantages. Many a discerning customer may prefer to stay in the interior and far away from the main road and may be willing to pay reasonably higher price for that site. One cannot rely on the mere possibility so as to indulge in a meticulous exercise of classification of the land as was done by the Land Acquisition Officer when the entire land was acquired in one block and therefore classification of the same into different categories does not stand to reason.
8. In view of the aforesaid legal position, in the present case, where the whole acquired land has the potential value for construction of houses, as the entire acquired land is situated amidst the residential area, and the same is acquired in block, therefore, classification of the same into different two categories cannot be said to be just and proper.
9. In the circumstances, it is held that the entire acquired land having the same potentiality to be valued at the same rate for determination of compensation. In other words, the market value fixed at the rate of Rs.5 per sqft. for the front side of the land would be applicable to the rest of the land.
10. Now, the question is as to what was the market value of the land at the time of acquiring the land. On behalf of the appellant, sale-deed dated 16.12.1975, Ex.P/2, (which is enclosed in F.A.No.394/1998 as the common evidence recorded in this case and that case also) whereby appellant Dinendra Prasad himself has sold his land, which is part of the land of same survey no., at the rate of Rs.5/- per sqft. But, this sale- deed was executed after three and half years of the date of acquisition of the land, therefore, taking note of the fact of escalation in the market price at the rate of 10% per year and accordingly after deduction, market price of the acquired land may be assessed at the rate of Rs.3.50 per sqft. and, thus, in absence of other evidence on record, the market value of the acquired land is determined at the rate of Rs.3.50 per sqft.
11. Accordingly, it is held that the appellants are entitled to compensation of the entire acquired land on the basis of market value at the rate of Rs.3.50 per sqft. along with other statutory benefits like 30% solacium and 12% interest till the date of award or till the date of taking over possession of the land, whichever is earlier, and thereafter on 5 enhanced amount interest be paid as per the provisions of section 28 of the Act. Accordingly, question no.1 is answered.
12. Question No.2 : In view of the aforesaid discussion and finding, in answer to question no.2 it is held that both the appeals are allowed and impugned judgments are set aside and the respondents are directed to pay compensation to the appellants, as observed hereinabove in para 11 and also pay cost of the case. Advocate's fee be added Rs.5,000/- on certification in accordance with law, in the cost of the appellants.
(J.P.Gupta) JUDGE HS 6 HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT AT JABALPUR First Appeal No.392/1998 Dinendra Prasad Pandey Vs. State of Madhya Pradesh First Appeal No.395/1998 Surendra Prasad and another Vs. State of Madhya Pradesh JUDGMENT Post for : 22/11/2016 (J.P.GUPTA) JUDGE 21/11/2016