Telangana High Court
P.Vidyasagar, vs P.Dhanalaxmi, on 3 January, 2024
Author: G.Radha Rani
Bench: G.Radha Rani
IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH
AT HYDERABAD
(Special Original Jurisdiction)
WEDNESDAY, THE THIRTIETH DAY OF DECEMBER
TWO THOUSAND AND NINE
PRESENT
THE HON'BLE MR JUSTICE GHULAM MOHAMMED
and
THE HON'BLE MR JUSTICE NOOTY RAMAMOHANA RAO
A.S.Nos.503 of 2008 and 480 of 2009
Between:
A.S.No.503 of 2008
The Special Deputy Collector-cum-Land Acquisition Officer,
Municipal Corporation, Hyderabad.
..... Appellant
AND
Mohd. Abdul Razack (died) and others.
.....Respondents
A.S.No.480 of 2009
Mohd. Abdul Razack (died) and others.
..... Appellants
AND
The Special Deputy Collector-cum-Land Acquisition Officer,
Municipal Corporation, Hyderabad.
.....Respondent.
COMMON JUDGMENT:
(Per Sri Justice Ghulam Mohammed,J) Both these appeals are filed under Section 54 of the Land Acquisition Act, 1894 (for short 'the Act'), assailing the judgment and decree dated 19.02.2008 in O.P.No.14 of 2003 on the file of the First Senior Civil Judge, City Civil Court, Hyderabad.
2. The facts, in brief, are as follows:-
The Land Acquisition Officer issued a draft notification under Section 4(1) of the Act on 23.04.2002 for acquisition of lands for the purpose of road widening at Panjagutta center in Khairatabad Village and Mandal. As per the said notification, the land of an extent of 419.89 sq. yards situated at Panjagutta center in Khairatabad Village and Mandal, belonging to the respondents/claimants, was acquired by the Government. The Land Acquisition Officer, after considering the various aspects and the sale statistics, fixed the market value of the acquired property at the rate of Rs.4,000/- per square yard under the Award No.B/3294/01 dated 22.05.2002. Aggrieved by the same, the claimants sought for a reference under Section 18 of the Act, claiming higher compensation, and the same has been referred as per the directions of this Court in W.P.No.18876 of 2001 and was taken on file by the learned First Senior Civil Judge, City Civil Court, Hyderabad, as O.P.No.14 of 2003.
3. During trial, on behalf of the claimants, P.W.1 was examined and Exs.A1 to A9 were marked. On behalf of the respondent-Referring Officer, RW1 was examined and Exs.B1 to B4 were marked. Ex.C1-claim petition filed before the Land Acquisition Officer was also marked.
4. The learned First Senior Civil Judge, on consideration of the material available on record, fixed the market value of the acquired land at Rs.7,500/- instead of Rs.4,000/- per square yard fixed by the Land Acquisition Officer and the claimants are entitled for the difference amount. The claimants are entitled to solatium @ 30% per annum on the enhanced difference amount and also entitled to get additional market value at 12% on the enhanced amount from the date of draft notification dated 23.04.2002 to the date of passing of the award i.e., 22.05.2002. Aggrieved by the same, both these appeals have been preferred by the Special Deputy Collector-cum-Land Acquisition Officer and the claimants respectively.
5. Learned counsel appearing on behalf of the claimants vehemently contended that the land in question is situated in a developed commercial area, abutting the main road and has got all facilities and it is a prime land in the city of Hyderabad. He has drawn the attention of this Court to the sale deeds-Exs.A6 to A9 and contended that the Court below has committed error in determining the true market value of the land in question in proper perspective without referring those documents.
6. The learned Government Pleader for Land Acquisition contended that for the purpose of road widening, normally, small extents of lands have been acquired by the Government. He further contended that since the lands under Exs.A6 to A9 pertain to flats/apartments and shops along with car parking places, the Court below ought not to have enhanced the market value from Rs.4,000/- to Rs.7,500/- per square yard.
7. Heard the learned Government Pleader for Land Acquisition and the learned counsel for the claimants. Perused the impugned judgment under appeal.
8. Admittedly, the property in question was acquired for road widening at Panjagutta centre in Khairatabad village and Mandal, which is a prime locality in Hyderabad city and several commercial complexes and shops are located. It is settled proposition of law that the compensation for the land acquired must be determined by reference to the price which a willing vendor might reasonably accept to obtain from a willing purchaser. The best evidence to prove what a willing purchaser would pay for the land under acquisition would be the evidence of genuine sales effected at or about the time of the notification for acquisition in respect of the sale of lands precisely parallel in all its circumstances. In this case draft notification under Section 4 (1) of the Land Acquisition Act was issued on 23-4-2002 and as per the said notification the land in an extent of 419.89 sq. yards situated at Panjagutta center in Khairatabad Village and Mandal, Hyderabad was acquired for the purpose of road widening. Ex.A-6 is the certified copy of sale deed, dated 26.04.2000, wherein an extent of 636 sft of property along with parking place was sold for a sum of Rs.2,95,000/-. Ex.A7 is the certified copy of sale deed, dated 03.07.2000, wherein the flat in the ground floor admeasuring about 851 square feet with super built up area with undivided land admeasuring about 2 square yards in Surya Complex was sold for a sum of Rs.3,00,000/-. Ex.A8 is the certified copy of sale deed, dated 08.02.2001, wherein the shop room in the ground floor in an extent of 10 square yards with built up area of 540 square feet was sold for Rs.2,50,000/-. Ex.A9 is the certified copy of sale deed, dated 27.03.2002, wherein an extent of 125 square yards of property with structure of 3000 square feet with parking place in flat No.104 in premises No.6-3- 678 and 680 was sold for a sum of Rs.38,00,000/-. All the transactions under Exs.A6 to Ex.A9 are prior in time to the date of 4 (1) notification for the acquisition of the land in question.
9. In UNION OF INDIA vs. MANGAT (DEAD) BY LRS. (2000 10 SCC 609) the Apex Court, in respect of lands situated on national highway, when compared to the lands which is farther away from the national highway held that in fixation of market value for the acquired lands location of the land constitutes a prime factor in determining the just compensation. In LAND ACQUISITION OFFICER v. NOOKALA RAJAMALLU (2003 12 SCC 334) the Apex Court has ruled that where large area is the subject matter of acquisition, rate at which small plots are sold cannot be a safe criterion. However, it was further clarified that it cannot be laid down as an absolute proposition that the rates fixed for the small plots cannot be the basis for fixation of the compensation. In the instant case, Ex.A9 is proximately close to the date of notification of the acquisition. When we take the sale consideration under Exs.A6 to A8 into consideration, though they relate to flats, the notional value of the land can be taken for the purpose of determination of the land in question. The Apex Court In respect of urban property, acquired for the purpose of road widening, laid down the following guidelines in ADMINISTRATOR GENERAL OF WEST BENGAL v.
COLLECTOR, VARANASI (AIR 1988 SC 943):-
"The determination of market value of a land with potentialities for urban use is an intricate exercise which calls for collection and collation of diverse economic criteria. The market value of a piece of property, for purposes of S.23 is stated to be the price at which the property changes hands from a willing seller to a willing, but not too anxious a buyer, dealing at arms length. The determination of market value is the prediction of an economic event, viz., the price- outcome of a hypothetical sale, expressed in terms of probabilities. Prices fetched for similar lands with similar advantages and potentialities under bona fide transactions of sale at or about the time of the preliminary notification are the usual, and indeed the best, evidences of market value. Other methods of valuation are resorted to if the evidence of sale of similar lands is not available.
It is trite proposition that prices fetched for small plots cannot form safe basis for valuation of large tracts of land as the two are not comparable properties. The principle that evidence of market value of sales of small, developed plots is not a safe guide in valuing large extents of land with potentialities for urban use has to be understood in its proper perspective. The principle requires that prices fetched for small developed plots cannot directly be adopted in valuing large extents. However, if it is shown that the large extent to be valued does admit of and is ripe for use for building purposes, that building lots that could be laid-out on the land would be good selling propositions and that valuation on the basis of the method of a hypothetical lay-out could with justification be adopted, then in valuing such small, laid-out sites the valuation indicated by sale of comparable small sites in the area at or about the time of the notification would be relevant. In such a case, necessary deductions for the extent of land required for the formation of roads and other civic amenities; expenses of development of the sites by laying out roads, drains, sewers, water and electricity lines, and the interest on the outlays for the period of deferment of the realisation of the price; the profits on the venture etc., are to be made. Deductions for land required for roads and other developmental expenses can, together, come up to as much as 53%. Accordingly, the prices fetched for small plots cannot directly be applied in the case of large areas, for the reason that the former reflects the 'retail' price of land and the latter the 'wholesale' price."
10. Admittedly, the acquired property being house property situated on the south and east corner of Punjagutta main circle and from that circle the road leads to Banjara Hill (Road no.1) and thus the property is on the main road of Punjagutta X roads where commercial complexes were existing as on the date of the notification. It appears the claimant did not taken any alternative land. The sale transactions of properties under sale deeds (Exs.A-6 to A-9) are constructed properties situated within in the vicinity of the subject property and that itself indicate that the vicinity of the area was fully developed and had high commercial value. It has come in the evidence of RW-1 that as per serial no.7 of Ex.B-2 at page 3, the market value per sq. yard is about Rs.41,000/-. Taking all these facts cumulatively into account, we deem it appropriate to fix the market value of the land in question at Rs.25,000/- per square yard which is just and proper compensation for the acquired lands.
11. In the result, the appeal filed by the Special Deputy Collector-cum-Land Acquisition Officer i.e. A.S.No.503 of 2008 is dismissed. The appeal filed by the claimants i.e. A.S.No.480 of 2009 is allowed, enhancing the market value of the acquired land i.e. 419.89 square yards from Rs.7,500/- to Rs.25,000/- per square yard.
12. Apart from that under section 23 (1-A) of the Act, the claimants are entitled for the additional market value at the rate of 12% per annum from the date of 4 (1) notification till the date of passing of the Award as has been enunciated and clarified by the Larger Bench of the Apex Court in SIDDAPPA VASAPPA KURI VS. SPECIAL LAND ACQUISITION OFFICER (2001 AIR (SC) 2951), the relevant paras reads thus:
"3. Section 23 (1A) of the Act reads thus :
23 (1-A) In addition to the market-value of the land, as above provided, the Court shall in every case award an amount calculated at the rate of twelve per centum per annum on such market-value for the period commencing on and from the date of the publication of the notification under Section 4, sub-section (1), in respect of such land to the date of the award of the Collector or the date of taking possession of the land, whichever is earlier.
Explanation.- In computing the period referred to in this sub- section, any period or periods during which the proceedings for the acquisition of the land were held up on account of any stay or injunction by the order of any court shall be excluded.
4. It is the contention of the learned Counsel for the appellants that the appellants are entitled to compensation for the period 1/06/1977 to 8/03/1991, i. e, from the date on which possession of the said land was taken till the date of publication of the Section 4 (1) notification. He finds sustenance for this contention in the decision of this Court in Mathapathi Basavannewwa's case (1995 (6) SCC 355) where a similar contention was upheld. The provisions of Section 23 (1a) were analysed but, said the Court, "strict construction leads to unjust result, hardship to the owner and defeats legislative object. " In its view, therefore, the expression "whichever is earlier" in Section 23 (1a) had to be construed in that backdrop and the claimant was entitled to the additional amount from the date of taking possession. Since advance possession was taken before the publication of the notification under Section 4 (1), "the claimants, by necessary implication, are entitled to the payment of additional amount by way of compensation from the date of taking over the possession for loss of enjoyment of the land. "1995 AIR SCW 3668 : AIR 1995 SC 2492.
This Court in Special Tahsildar (LA), P. W. D. Schemes, Vijayawada v. M. A. Jabbar, (1995) 2 SCC 142, quoted Section 23 (1a) and said "in other words, the owner of the land who has been deprived of the enjoyment of the land by having been parted with possession, the Act intended that the owner be compensated by awarding an additional amount calculated at the rate of 12 per centum per annum on the enhanced market value for the period between the date of notification and the date of award or date of taking possession of the land, whichever is earlier. Admittedly , possession having already been taken on 15-2- 1965, before publication of the notification under Section 4 (1) on 6-3-1980, the award of additional amount for the period from 6- 3-1980 to 30-9-1983, i. e. , the date of making the award under Section 11 is perfectly correct. "1995 AIR SCW 5216 : AIR 1995 SC 762.
5. It is, as we see it, clear from Section 23 (1a) that the starting point for the purposes of calculating the amount to be awarded thereunder, at the rate of 12 per centum per annum on the market value, is the date of publication of the Section 4 notification. The terminal point for the purpose is either the date of the award or the date of taking possession, whichever is earlier. In the present case, possession of the land having been taken prior to the publication of the Section 4 notification, that terminal is not available. The only available terminal is the date of the award. The High Court, therefore, was in no error in holding that the appellants were entitled to the additional compensation under Section 23 (1a) for the period 8/03/1991 to 6/02/1993.
6. Section 23 (1A) admits of no meaning other than the meaning that we have placed upon it. There is no room here for any construction other than that given above. It is only where a provision is ambiguous that a construction that leads to a result that is more just can be adopted. Having regard to its clear terms, Section 23 (1A) must receive the only construction it can bear. We are of the view, therefore, that the law has been correctly laid down in the decision in Special Tahsildar (LA) , P. W. D. Schemes v. M. A. Jabbar (1995 (2) SCC 142) and that it has not been correctly laid down in Asstt. Commr. , Gadag Sub-Division v. Mathapathi Basavannewwa (1995 (6) SCC 355) and, for that matter in State of H. P. v. Dharam Das (1995 (5) SCC 683 )."
13. Since it is stated that advance possession was taken in an extent of 264.94 square yards in the year 1977 and 263.29 square yards in the year 1996 respectively and that there is an admission made by R.W.1 examined on behalf of the LAO, the claimants are entitled for damages/rents as has been enunciated by the Apex Court in R.L. JAIN v. D.D.A. ( AIR 2004 SC 1904 ). In RL Jain's case the Apex Court (Larger Bench) had an occasion to consider the correctness or otherwise of the two conflicting decisions of the Apex Court in Shri Vijay Cotton and Oil Mills v. State of Gujarat (1991 (1) SCC 262) and Union of India v. Budh Singh (1995 (9) SCC 233). The issue before the Larger Bench was whether in a case where possession is taken before the issuance of Notification under Section 4 (1) of the Land Acquisition Act, the claimant (owner of land) is entitled to interest for such anterior period of accordance with Section 34 of the said Act.
At paras 17 and 18 held thus:
"17. The normal rule, therefore, is that if on account of land a person is deprived of possession of his property he should be paid compensation immediately and if the same is not paid to him forthwith he would be entitled to interest thereon from the date of dispossession till the date of payment thereof. But here the land has been acquired only after the preliminary notification was issued on 9-9-1992 as earlier acquisition proceedings were declared to be null and void in the suit instituted by the land owner himself and consequently he was not entitled to compensation or interest thereon for the anterior period.
18. In a case where the landowner is dispossessed prior to the issuance of preliminary notification under section 4 (1) of the Act the Government merely takes possession of the land but the title thereof continues to vest with the land owner. It is fully open for the land owner to recover the possession of his land by taking appropriate legal proceedings. He is therefore only entitled to get rent or damages for use and occupation for the period the government retains possession of the property. Where possession is taken prior to the issuance of the preliminary notification, in our opinion, it will be just and equitable that the Collector may also determine the rent or damages for use of the property to which the land owner is entitled while determining the compensation amount payable to the land owner for the acquisition of the property..."
14. Following the above judgment of the Supreme Court in R.L.Jain's case (supra), the claimants are entitled to damages/rents from the date of taking possession of the lands in question. However, since damages/rent have to be ascertained, we deem it appropriate to permit the claimants to move an application before the concerned appropriate forum and on such an application being filed by the claimants, the same shall be adjudicated and disposed of within a period of six months in accordance with law.
15. The claimants are entitled to interest under section 34 of the Act, from the date of notification till the date of payment i.e. 1st year @ 9% per annum and for subsequent years at the rate of 15% per annum. The claimants are also entitled to all statutory benefits under the Act. There shall be no order as to costs.
_____________________ GHULAM MOHAMMED,J ___________________________ NOOTY RAMAMOHANA RAO, J Date:30.12.2009 Sj PRESENT THE HON'BLE MR JUSTICE GHULAM MOHAMMED and THE HON'BLE MR JUSTICE NOOTY RAMAMOHANA RAO A.S.Nos.503 of 2008 and 480 of 2009