Allahabad High Court
Ram Phal And Others vs State Of U.P. And Others on 25 March, 2019
Bench: Surya Prakash Kesarwani
HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
Court No. - 59
1. Case :- FIRST APPEAL No. - 467 of 2006
Appellant :- Ram Phal And Others
Respondent :- State Of U.P. And Others
Counsel for Appellant :- Arvind Srivastava,M.K.Mishra,Madan Mohan,N.K.Mishra,P.K. Bhardwaj,P.K.S.Paliwal,Rakesh Srivastava,Shri Krishna Mishra
Counsel for Respondent :- S.C., ,Ambrish Shukla,Anurag Khanna,Shivam Yadav
2. Case :- FIRST APPEAL No. - 386 of 2008
Appellant :- Chet Ram
Respondent :- State Of U.P. And Another
Counsel for Appellant :- P.N. Tripathi,Madan Mohan,Shri Krishna Mishra
3. Case :- FIRST APPEAL No. - 627 of 2009
Appellant :- Desh Raj And Others
Respondent :- State Of U.P. Thru Collector And Another
Counsel for Appellant :- P.N. Tripathi,Madan Mohan
Counsel for Respondent :- S.C.,Ambrish Shukla
4. Case :- FIRST APPEAL No. - 58 of 2014
Appellant :- Ratan Singh And Others
Respondent :- State Of U.P. And Others
Counsel for Appellant :- Pankaj Mithal,Madan Mohan
Counsel for Respondent :- Ambrish Shukla,S.C.
5. Case :- FIRST APPEAL No. - 685 of 2014
Appellant :- Tej Pal And Others.
Respondent :- State Of U.P. And Another.
Counsel for Appellant :- P.N. Tripathi,Madan Mohan,Shri Krishna Mishra
Counsel for Respondent :- S.C.,Ambrish Shukla
6. Case :- FIRST APPEAL No. - 757 of 2014
Appellant :- Khazan And Another
Respondent :- State Of U.P. Thru Collector And Another
Counsel for Appellant :- P.N. Tripathi,Madan Mohan
Counsel for Respondent :- S.C.,Ambrish Shukla
7. Case :- FIRST APPEAL No. - 88 of 2015
Appellant :- Chet Ram
Respondent :- State Of U.P. Thru Collector And Another
Counsel for Appellant :- P.N. Tripathi,Shri Krishna Mishra
Counsel for Respondent :- S.C.,Ambrish Shukla
8. Case :- FIRST APPEAL No. - 223 of 2015
Appellant :- Hem Singh
Respondent :- State Of U.P. Thru Collector And Another
Counsel for Appellant :- S.K. Lakhtakia,Madan Mohan
Counsel for Respondent :- S.C.
9. Case :- FIRST APPEAL No. - 225 of 2015
Appellant :- Nanak Chand And Others
Respondent :- State Of U.P. Thru Collector And Another
Counsel for Appellant :- S.K. Lakhtakia,Madan Mohan
Counsel for Respondent :- S.C.
10. Case :- FIRST APPEAL No. - 250 of 2015
Appellant :- Munshi
Respondent :- State Of U.P. Thru Collector And Another
Counsel for Appellant :- S.K. Lakhtakia,Madan Mohan
Counsel for Respondent :- S.C.
11. Case :- FIRST APPEAL No. - 680 of 2015
Appellant :- Khazan And Another
Respondent :- State Of U.P. And Another
Counsel for Appellant :- P.N. Tripathi,Madan Mohan
Counsel for Respondent :- Ambrish Shukla
12. Case :- FIRST APPEAL No. - 198 of 2016
Appellant :- Peetam Singh And Others
Respondent :- State Of U.P. And Another
Counsel for Appellant :- P.N. Tripathi,Madan Mohan
Counsel for Respondent :- Ambrish Shukla
13. Case :- FIRST APPEAL No. - 383 of 2016
Appellant :- Khairati And Others
Respondent :- State Of U.P. And Others
Counsel for Appellant :- Shvi Sagar Singh,Madan Mohan
Counsel for Respondent :- Ambrish Shukla,S.C.
14. Case :- FIRST APPEAL DEFECTIVE No. - 524 of 2003
Appellant :- Nanak Chand And Others
Respondent :- State Of U.P. Thru Collector And Another
Counsel for Appellant :- S.K. Lakhtakia,Madan Mohan
Counsel for Respondent :- Ambrish Shukla,S.C.
Hon'ble Surya Prakash Kesarwani,J.
Determination of compensation of the land of village Morna acquired by notification under Section 4(1) of the Land Acquisition Act, 1894 dated 02.02.1991 on the basis of award/ judgments determining compensation of the land acquired by notification dated 05.01.1991 of village Chhalera Bangar, sale deed exemplar of village Morna of the period within three years of the acquisition, is the question involved in the present first appeals.
1. Heard Sri Shri Krishna Mishra and Sri Madan Mohan, learned counsels for the claimants appellants, the learned standing counsel for the State-respondents and Sri Shashinandan, learned senior advocate, assisted by Sri Shivam Yadav and Sri Amrish Shukla, learned counsels for the respondent-NOIDA.
FACTS OF THE CASE:-
2. Briefly stated facts of the present case are that by notification under Section 4(1) of the Land Acquisition Act, 1894 (hereinafter referred to as ''the Act'), major portion of land of village Morna was acquired in the year 1976. Lands of adjoining villages were also acquired. Huge development took place on the aforesaid acquired land. Np3 road and several residential colonies were built. Facilities of road electricity, water, etc. all were developed by the year 1980. Subsequently, acquisition notification in question dated 02.02.1991, was issued for acquisition of land of village Morna measuring 276-12-15 bighas and finally the acquisition was made for 273-3-2 bighas. Notification under Section 6 of the Act was issued on 04.12.1991, which was published in the Gazettee on 04.01.1992. Possession was taken on 31.03.1992. The Special Land Acquisition Officer (SLAO) passed the award on 31.03.1995 offering Rs.74.40 per square yard as compensation for the acquired land along with statutory benefits. Dissatisfied with the award, number of land holders filed references under Section 18 of the Act. Thirty six such references were decided by the impugned common judgment dated 10.02.2003 passed by the court of Additional District Judge and Sessions Judge, Ghziabad determining the compensation @ Rs.264/- per square yard. Aggrieved with this judgment, the respondent NOIDA filed First Appeal No.752 of 2003 (NOIDA vs. Om Prakash and others) and First Appeal No.710 of 2003 (NOIDA vs. Ishwar and others). The aforesaid First Appeal No.752 of 2003 was disposed of by a Division Bench in terms of the judgment of the same Division Bench in First Appeal No.564 of 1997 (Khajan and others vs. State of U.P. and another) relating to acquisition of land of village Bhangel Begumpur by notifications issued in the year 1983, 1986 and 1988. Thus, the aforesaid First Appeal No.752 of 2003 filed by NOIDA stood dismissed by the Division Bench by order dated 11.10.2012. The First Appeal No.710 of 2003 filed by NOIDA was dismissed by order dated 20.11.2018. According to NOIDA, against the judgment in the aforesaid First Appeal No.752 of 2003 (NOIDA vs. Om Prakash and others), S.L.P. No.28435 of 2015 (NOIDA vs. Om Prakash) was filed by NOIDA, which was dismissed by Hon'ble Supreme Court by order dated 03.02.2015. It is relevant to mention that First Appeal No.564 of 1997 (Khajan and others vs. State of U.P.), relating to village Bhangel Begumpur was decided with respect to the lands acquired in the years 1983, 1986 and 1988 and compensation determined @ Rs.297/- per square yard by the Division Bench by judgment dated 11.10.2012, stood affirmed by the Hon'ble Supreme Court. The main submission of respondent-NOIDA before this court in the present appeals is that since the First Appeal No.752 of 2003 (NOIDA vs. Om Prakash) arising from the impugned common judgment in the present first appeals, was disposed of by the Division Bench in terms of the judgment in the case of Khajan and others (supra) in which compensation was determined @ Rs.297/- per square yard and the S.L.P. of the NOIDA stood dismissed by Hon'ble Supreme Court and, therefore, the compensation in the present first appeals should be determined @ Rs.297/- per square yard.
3. The present bunch of first appeals were heard on several occasions. On 02.02.2016, the claimants-appellants argued for compensation @ Rs.340/- per square yard on the basis of Division Bench judgment in First Appeal Defective No.374 of 2002 (Gyan Chand vs. NOIDA and another) decided on 23.07.2014 and First Appeal No.1169 of 2003 (NOIDA vs. Balraj) decided on 18.05.2015 and First Appeal No.444 of 2006 (Bir Singh vs. State of U.P. and others) decided on 03.02.2015 arising from acquisition of land of village Chhalera Bangar acquired on 05.01.1991 and thereupon, learned counsel for the respondent-NOIDA prayed for adjournment to enable the authority to explore the possibility of compromise on agreed rate of compensation. However, nothing was done by NOIDA and as such this court passed a detailed order dated 16.12.2016 in First Appeal No.710 of 2003 and other connected first appeals including the present first appeals observing as under:
"Although, prima-facie, it appears that the submission of the learned counsel for the claimants for their entitlement for compensation @ Rs.340/- per Sq. yard with respect to the acquired land, is strongly supported by the Division Bench judgment in the case of Balraj (supra) and other Division Bench judgments followed therein yet the claimants still expressed desire before the Court for entering into a compromise with NOIDA, so as to buy peace and to get-rid-of from luxurious litigation, provided NOIDA offers compensation around Rs.320/- per Sq. yard.
Shri Shivam Yadav, learned counsel for NOIDA states that instructions in this regard are awaited from NOIDA authority and, therefore, the matter may be taken up on 20.12.2016.
As prayed by Sri Shivam Yadav, learned Counsel for NOIDA, put up on 20.12.2016 along with connected appeals, on which date the instructions shall be brought on record by means of an affidavit of a competent officer of NOIDA. "
4. Subsequently, the First Appeal No.710 of 2003 (NOIDA vs. Ishwar and others) was dismissed by order dated 20.11.2018, as having been concluded against NOIDA by order in First Appeal No.730 of 2003 (NOIDA vs. Ishwar Singh and others), which was dismissed following the judgment dated 15.04.2015 in First Appeal No.737 of 1995 (NOIDA vs. Surendra Singh) and other connected first appeals. The aforesaid First Appeal No.737 of 1995 and other connected appeals, were partly allowed determining compensation without any deduction @ Rs.135/- per square yard, which on remand by the Supreme Court, was enhanced by the Division Bench to Rs.297/- per square yard by judgment dated 21.04.2016 in First Appeal No.522 of 2009 (Pradeep Kumar vs. State of U.P. and another) and other connected first appeals in which acquisition made under Section 4(1) of the Act was dated 15.03.1988 relating to village Makanpur. Thus, the respondent NOIDA got dismissed its First Appeal No.710 of 2003, relating to village in question i.e. village Morna for acquisition dated 02.02.1991.
5. On 09.01.2019, a detailed order was passed extracting certain undisputed facts of the case, the supplementary affidavit of the respondent NOIDA dated 16.12.2018 and the judgment of Hon'ble Supreme Court dated 09.11.2017 in First Appeal No.18620-18623 of 2017 (Bir Singh vs. NOIDA) determining compensation @ Rs.449/- per square yard which arose from the Division Bench judgment in First Appeal No.444 of 2006 (Bir Singh vs. State of U.P. and others) decided on 03.02.2015 in which compensation of land of village Chhalera Bangar was determined @ Rs.340/- per square yard. Again a statement was made by learned counsel for the claimants appellants for their readiness to accept Rs.340/- per square yard as compensation of the acquired land to buy peace and to avoid any further litigation. Learned counsel for the respondent - NOIDA sought time to obtain instructions as to whether NOIDA would be ready to pay compensation @ Rs.320/- or Rs.340/- per square yard. Consequently, after passing a detailed order on 14.03.2019, the matter was adjourned. Today, learned counsel for the respondent NOIDA has stated that NOIDA has decided to not enter into any compromise and, therefore, these first appeals may be decided on merit. In these circumstances, these first appeals are now being heard on merit.
SUBMISSION ON BEHALF OF CLAIMANTS APPEALLANTS:-
6. Learned counsel for the claimants appellants refers to several findings of fact recorded in the impugned judgment with respect to potential value of the acquired land, its location and developments etc., which are undisputed. He further submits that so far as NOIDA is concerned, these findings cannot be opposed inasmuch as the first appeals of NOIDA arising from the impugned common judgment were dismissed. Present first appeals are first appeals of claimants-appellants for enhancement. He submits that it is undisputed that acquisition of land of the adjoining village Chhalera Bangar, was made by notification under Section 4(1) of the Act dated 05.01.1991 and about a month thereafter, the acquisition of land of village Morna was made by notification dated 02.02.1991. In the matter of compensation of village Chhalera Bangar, a Division Bench of this court determined compensation @ Rs.340/- per square yard, which was enhanced to Rs.449/- per square yard by Hon'ble Supreme Court in the case of Bir Singh and others vs. State of U.P. and another (Civil Appeal No.18620-18623 of 2017). Therefore, the claimants-appellants are entitled for compensation @ Rs.449/- per square yard.
Submission of Respondent - NOIDA:-
7. Learned counsel for the respondent - NOIDA submits as under:-
(i) The First Appeal No.752 of 2003 (NOIDA vs. Om Prakash) arising from the impugned common judgment of the reference court was disposed of by a Division Bench by order dated 11.10.2012 in view of the Division Bench judgment in First Appeal No.564 of 1997 (Khajan and others vs. State of U.P.). In the case of Khajan and others, the compensation was determined by Division Bench @ Rs.297/- per square yard. The S.L.P. No.28435 of 2015 (NOIDA vs. Om Prakash) filed by NOIDA was dismissed on 03.02.2015. Since the First Appeal No.752 of 2003 filed by NOIDA arose from the impugned common judgment as aforesaid and since it has attained finality, therefore, the claimants are entitled for compensation only @ Rs.297/- per square yard.
(ii) The appellants have not demonstrated any additional fact as compared to the facts in First Appeal No.752 of 2003 or First Appeal No.564 of 1997 indicating higher compensation and as such, they are not entitled for compensation over and above Rs.297/- per square yard.
(iii) Value of land of village Chhalera Bangar was very high. Its potentiality cannot be equated with the acquired land of village in question, i.e. village Morna.
(iv) The judgment of Hon'ble Supreme court in the case of Bir Singh (supra) enhancing compensation from Rs.340/- to Rs.449/- per square yard, is based on a sale deed exemplar whereas no such sale deed exemplar is available in the present first appeals.
DISCUSSION AND FINDINGS:-
8. I have carefully considered the submissions of the learned counsels for the parties and perused the record.
9. It is undisputed that First Appeal No.710 of 2003 (NOIDA vs. Ishwar and others) filed by NOIDA and arising from the impugned common judgment was dismissed by this court by order dated 20.11.2018 as having been concluded against the appellant by judgment in First Appeal No.730 of 2003 and allied matters. The First Appeal No.730 of 2003 (NOIDA vs. Ishwar Singh and others) and 18 other connected first appeals filed by NOIDA and arising from the impugned common judgment, were dismissed by the Division Bench by order dated 21.05.2015 for reasons observed in paragraph-8, as under:-
"For the reasons contained in judgment of this Court dated 15.04.2015 in First Appeal No. 737 of 1995 (N.O.I.D.A. Vs. Surendra Singh) (supra) and having found that the facts and legal issues involved in these matters are same as involved in that matter, we follow the aforesaid judgment and dismiss these appeals filed by NOIDA"
10. The First Appeal No.737 of 1995 (NOIDA vs. Surendra Singh) and other connected 91 first appeals including various first appeals of claimants, were decided by the Division by judgment dated 15.04.2015 determining compensation @ Rs.135/- per square yard with respect to land of village Makanpur acquired by notification under Section 4(1) of the Act dated 15.03.1988. The aforesaid claimants-appellants filed civil appeals being Civil Appeal No.1506-1517 of 2016 (Pradeep Kumar etc. etc. Vs. State of U.P. and another), which was allowed and the matter was remanded to the High Court by order of Hon'ble Supreme Court dated 16.02.2016. On remand, the First Appeal No.522 of 2009 (Pradeep Kumar vs. State of U.P. and another) and all 91 other connected first appeals including first appeals of other claimants as well as of NOIDA, were decided by the Division Bench determining the compensation @ Rs.297/- per square yard by judgment dated 21.04.2016. All the appeals of NOIDA were dismissed and the appeals of claimants-appellants were allowed.
11. Thus, with respect to the acquisition made by notification dated 15.03.1988 of land of village Makanpur, the compensation was finally determined @ Rs.297/- per square yard along with other statutory benefits, which has attained finality. As already noted, the Division Bench by judgment dated 11.10.2012, as corrected by order dated 08.11.2012, determined the compensation @ Rs.297/- per square yard with respect to acquisition of land of village Bhangel Begumpur made by notifications issued in the years 1986-88.
12. In view of the facts noted above, I find no substance in the first argument of respondent NOIDA that compensation @ Rs.297/- per square yard in the matter of present acquisition, has attained finality. Dismissal of first appeals of NOIDA, being First Appeal No.710 of 2003, does not mean that the claimants appellants are debarred from pressing their first appeals for enhancement of compensation. The first argument is totally merit-less and, therefore, it is rejected.
LOCATION AND POTENTIAL VALUE OF ACQUIRED LAND:-
13. Undisputedly, a major portion of land of village in question i.e. village Morna was acquired for NOIDA in the year 1976. Land of other adjoining villages were also acquired at that time. The land so acquired were well developed by the year 1980. Several residential colonies, government degree colleges, bus-stand, golf course, NP3 road, various commercial establishments, etc. etc. were developed over it. Subsequently, the present acquisition of village Morna by notification under Section 4(1) of the Act was made on 02.02.1991. The land of adjoining village Chhalera Bangar, was also acquired by another notification under Section 4(1) of the Act dated 05.01.1991. A finding has been recorded by the reference court that golf course is adjoining to the acquired land of village Chhalera Bangar and Morna. Some of the findings recorded by the reference court, are reproduced below:
"---------------- vr% ,slh fLFkfr esa ;fn Hkw&lanHkZdrkZx.k o foi{khx.k iz'uxr xkao eksjuk dk dksbZ lqlaxr fodz;&i= izLrqr ugh dj ikrs gS rks bu pkjksa xkaoks Nysjk] vkxkgiqj] eksjuk] dksf'k;kjiqj ds cSukeksa dks rFkk bu pkjksa xkaoks dh tehu ls lEcfU/kr vfHkfu.kZ; esa izfrikfnr tehu ds cktkjh ewY; dks iz'uxr Hkwfe ds cktkjh ewY; dk fu/kkZj.k djus esa fopfjr fd;k tk ldrk gSA ----------------------
--------------- ,slh fLFkfr esa tcfd foi{khx.k ds lk{kh Mh-MCyw&1 Loa; gh ;g Lohdkj dj jgs gS fd uks,Mk esa lHkh xkaoksa dk eqvkotk leku nj ij fn;k tk jgk Fkk rFkk Mh-MCyw- 1 us ;g Hkh Lohdkj fd;k Fkk fd lSDVj&50&1 eksjuk] vkxkgiqj] cjkSyk ,oa gksf'k;kjiqj dh tehuksa ls feys gq, Fks rFkk lSDV&39 xzke eksjuk Nysjk] vkxkgiqj dh iwoZ vftZr Hkwfe ls cuk gqvk Fkk rc ,slh fLFkfr esa xzke Nysjk] vkxkgiqj cjkSyk o gksf'k;kjiqj dh Hkwfe dks xzke eksjuk dh iz'uxr vftZr Hkwfe ls fHkUu izd`fr dh Hkwfe ugh ekuk tk ldrk FkkA
---------------- ,slh fLFkfr esa tcfd xkao eksjuk dh tehu ds vU; ;qfDr;qDr fodz; ij U;k;ky; ds le{k miyC/k ugh Fks rc blh Hkwfe ls layXu nwljs xkao vkxkgiqj] gksf'k;kjiqj] cjkSyk ,oa Nysjk o lehiLFk Hkxsy ds leku Hkwfe ds fodz; i= o bu xkaoks dh Hkwfe ds lEcU/k esa le{k vf/kdkjh }kjk /kkjk&4 dh foKfIr ds fnukad ds vkl&ikl ds vf/kxzg.k ds lEcU/k esa fn, x, izfrdj ds vfHkfu.kZ; esa iznRr cktkjh ewY; ds vk/kkj ij iz'uxr Hkwfe dk cktkjh ewY; fu/kkZfjr djuk fdlh Hkh izdkj ls vlaxr ugh ekuk tk ldrk FkkA
---------------- tSlk fd eS mij fo'ysf"kr dj pqdh gwWA fd Nysjk o eksjuk xkao dh tehu vkil esa feyh gqbZ gSA ----------------"
14. However, after recording findings as briefly noted above, the reference court determined compensation @ Rs.264/- per square yard on the basis of compensation offered by NOIDA @ Rs.284/- per square yard to certain land owners whose land was acquired in the year 1992, observing as under:
"--------------- ;g ns[krs gq, fd o"kZ 1982 ds vf/kxzg.k ds lEcU/k eas Loa; uks,Mk izkf/kdj.k }kjk lsDVj 50&51 ftlesa fd iz'uxr xkao eksjuk dh vf/kxzfgr Hkwfe rFkk gksf'k;kjiqj dh Hkwfe ¼ftlds lEcU/k esa 284 :i;s izfr oxZxt dh nj ls cktkjh ewY; iznku fd;k x;k Fkk½ dher iznku dh xbZ Fkh rFkk ;g ns[krs gq, fd fnukad 30-11-89 dks Hkh U;kf;d fu.kZ; esa uks,Mk ds gh vU; xkao Hkkaxsy dh tehu dh dher [email protected]& :i;s izfr oxZxt vkadfyr dh xbZ Fkh] iz'uxr vf/kxzfgr Hkwfe dk rRdkyhu cktkjh ewY; [email protected]& :i;s izfr oxZxt vkadfyr fd;k tkuk mfpr gksxkA ;g dher vkadfyr djrs le; U;k;ky; }kjk bl rF; dks Hkh /;ku esa j[kk x;k gS fd uks,Mk izkf/kdj.k us 284 :i;s izfr oxZxt Hkwfe dk ewY; fu/kkZfjr djrs le; Hkw&lanHkZdrkZvksa d`"kdksa dks iquokZl gsrq 10 izfr'kr vfodflr Hkwfe iznku djus dk Hkh izkfo/kku j[kk FkkA "
15. The conclusion part of the impugned judgment of the reference court as reproduced above, determining compensation @ Rs.264/- per square yard is neither in conformity with the provisions of Section 23 of the Act nor it can be sustained in view of the law laid down by Hon'ble Supreme Court in the case of Chimanlal Har Govinddas v. Special Land Acquisition Officer (1988)3 SCC 751 (Para 4), which has been consistently followed and has recently been followed in Manoj Kumar and others v. State of Haryana and others (2018)13 SCC 96 (Para 25).
16. For the reasons afore-stated, the compensation determined by the impugned judgment @ Rs.264/- per square yard, cannot be sustained and it deserves to be enhanced.
PRINCIPLES FOR DETERMIANTION OF COMPENSATION:-
17. The provisions of Section 23(1) of the Act providing for determination of compensation, has been authoritatively explained by Hon'ble Supreme Court in series of the judgments.
18. 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 recent decisions in Union of India vs. Dyagala Devamma and others, (2018) 8 SCC 485 and 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)
What is Market Value:-
19. Thus, as per settled principle of law, compensation for the land acquired has to be determined at market value. 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.
Principles for Determination of Market Value:-
20. Important principles for determination of market value of acquired land as settled by Hon'ble Supreme Court in various judgments may be summarized as under:-
(i) 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.
(ii) 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.
(iii) 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.
(iv) 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.
(v) When there are several exemplars with reference to similar lands, it is the general rule that the highest of the exemplars, if it is satisfied, that it is a bonafide transaction has to be considered and accepted. When the land is being compulsorily taken away from a person, he is entitled to the highest value which similar land in the locality shown to have fetched in a bona fide transaction entered into between a willing purchaser and a willing seller near about the time of the acquisition. (Ref. (2012) 5 S.C.C 432, Mehrawal Khewaji Trust (Registered ), Faridkot and others Vs. State of Punjab and others).
(vi) In view of Section 51A of the Act, 1894 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).
(vii) 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.
(viii) 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.
(ix) 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.
(x) 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 {Reference: (2011) 8 SCC 91, Valliyamal and another vs. Special Tehsildar Land Acquisition and another (Paras 13 to 19)}.
(xi) 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 para 21, Sabhia Mohammed Yusuf Abdul Hamid Mulla (dead) and others Vs. Special Land Acquisition Officer and (2010) 1 SCC 444 (Paras- 24 & 25), Subh Ram vs. State of Haryana].
(xii) The circle rate filed 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: 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
21. 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% depending on the nature of land, its situation and stage of development etc., vide Brig. Sahib Singh Kalha Vs. Amritsar Improvement Trust, (1982) 1 SCC 419 (deductions between 20% and 33%), 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).
22. Recently, in Major General Kapil Mehra Vs. Union of India and another (2015)2 SCC 262, Hon'ble Supreme Court again observed that while fixing market value of acquired land, Land Acquisition Collector is required to keep in mind the following factors:-
(i) Existing geographical situation of land.
(ii) Existing use of land.
(iii) Already available advantages, like proximity to National or State Highway or road and/ or developed area,
(iv) Market value of other land situated in the same locality/ village/ area or adjacent or very near the acquired land.
COMPARATIVE SALE METHOD OF MARKET VALUE
23. It is settled law that market value of the land acquired is determined with reference to the market sale of comparable land in the neighbourhood by a willing seller to a willing buyer on or before the date of preliminary notification i.e. under Section 4(1) of the Act 1894, as that would give a fair indication of market value.
24. In Bhupal Singh Vs. State of Haryana, (2015) 5 SCC 801 Hon'ble Supreme Court specifically considered similar question of determination of market value under Section 23 of the Act and held that the fair market value of the acquired land is required to be determined on the basis of the market rate of the adjacent lands similarly situated to the acquired lands prevailing on the date of acquisition or/ and prior to acquisition but not subsequent to the date of acquisition.
25. In the case of Union of India and another Vs. Raghubir Singh (dead) by LRs. Etc. (1989) 2 SCC 754 (para-33), Constitution Bench of Hon'ble Supreme Court considered the provisions of Section 23 and Section 11 of the Act and and held as under:
"33. We find substance in the contention of the learned Attorney General that if Parliament had intended that the benefit of enhanced solatium should be extended to all pending proceedings it would have said so in clear language. On the contrary, as he says, the terms in which Section 30(2) is couched indicate a limited extension of the benefit. The Amendment Act has not been made generally retrospective with effect from any particular date, and such retrospectivity as appears is restricted to certain areas covered by the parent Act and must be discovered from the specific terms of the provision concerned. Since it is necessary to spell out the degree of retrospectivity from the language of the relevant provision itself, close attention must be paid to the provisions of Section 30(2) for determining the scope of retrospective relief intended by Parliament in the matter of enhanced solatium. The learned Attorney General is also right when he points out that it was never intended to define the scope of the enhanced solatium on the mere accident of the disposal of a case in appeal on a certain date. Delays in the superior Courts extend now to limits which were never anticipated when the right to approach them for relief was granted by statute. If it was intended that Section 30(2) should refer to appeals pending before the High Court or the Supreme Court between April 30, 1982 and September 24, 1984, they could well refer to proceedings in which an award had been made by the Collector from anything between 10 to 20 years before. It could never have been intended that rates of compensation and solatium applicable to acquisition proceedings initiated so long ago should now enjoy the benefit of statutory enhancement. It must be remembered that the value of the land is taken under Section 11(1) and Section 23(1) with reference to the date of publication of the notification under Section 4(1), and it is that date which is usually material for the purpose of determining the quantum of compensation and solatium. Both Section 11(1) and Section 23(1) speak of compensation being determined on the basis, inter alia, of the market value of the land on that date, and solatium by Section 23(2), is computed as a percentage on such market value."
(Emphasis supplied by me)
26. In the case of Ashok Kumar and another Vs. State of Haryana, (2016) 4 SCC 544 (Para-12), Hon'ble Supreme Court considered situation of two acquired lands and held as under:
"In the case of the appellants herein, it is an admitted position that the properties do not abut the national highway. Admittedly, it is situated about 375 yards away from the national highway and it appears that there is only the narrow Nahan Kothi Road connecting the properties of the appellants to the national highway. Therefore, it will not be just and proper to award land value of Rs.250/- per square yard, which is granted to the property in adjoining village. Having regard to the factual and legal position obtained above, we are of the considered view that the just and fair compensation in the case of appellants would be Rs.200/- per square yard."
27. 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.
Relevance of Previous Award/ Judgments for Determining Compensation:-
28. In a recent decision in the case of Manoj Kumar and other v. State of Haryana and others (2018)13 SCC 96 (Paragraphs 11 to 20 and 23), Hon'ble Supreme Court considered the relevance of previous award/judgment for determination of compensation under Section 23 of the Act, 1894, which are summarised as under:
(I) In such cases, where such judgments/awards are relied on as evidence, though they are relevant, but cannot be said to be binding with respect to the determination of the price, that has to depend on the evidence adduced in the case. Such decisions in other cases cannot be adopted without examining the basis for determining compensation whether sale transaction referred to therein can be relied upon or not and what was the distance, size and also bonafide nature of transaction before such judgments/awards are relied on for deciding the subsequent cases. It is not open to accept determination in a mechanical manner without considering the merit. Such determination cannot be said to be binding.
(II) The determination of compensation in each case depends upon the nature of land and the evidence adduced in each case. It may be that better evidence has been adduced in later case regarding the actual value of property. It is not proper to ignore the evidence adduced in the case at hand.
(III) The compensation cannot be determined by blindly following the previous award/judgment. It has to be considered only a piece of evidence not beyond that. Court has to apply the judicial mind and is supposed not to follow the previous awards without due consideration of the facts and circumstances and evidence adduced. In the case in question.
(IV) The current value reflected by comparable sale deeds is more reliable and binding for determination of compensation in such cases award/judgment relating to an acquisition made before 5 to 10 years cannot form the safe basis for determining compensation.
(V) The awards and judgment in the cases of others not being inter parties are not binding as precedents. Trend of the courts to follow them blindly is probably under the misconception of the concept of equality and fair treatment. The courts are being swayed away and this approach in the absence of and similar nature and situation of land is causing more injustice and tantamount to giving equal treatment in the case of unequal's.
(VI) As per situation of a village, nature of land its value differ from the distance to distance even two to three-kilometer distance may also make the material difference in value. Land abutting Highway may fetch higher value but not land situated in interior villages.
(VII) The previous awards/judgments are the only piece of evidence at par with comparative sale transactions. The similarity of the land covered by previous judgment/award is required to be proved like any other comparative exemplar. In case previous award/judgment is based on exemplar, which is not similar or acceptable, previous award/judgment of court cannot be said to be binding. Such determination has to be out rightly rejected. In case some mistake has been done in awarding compensation, it cannot be followed on the ground of parity. An illegality cannot be perpetuated. Such award/judgment would be wholly irrelevant.
(VIII) To base determination of compensation on a previous award/ judgment, the evidence considered in the previous judgment/ award and its acceptability on judicial parameters has to be necessarily gone into, otherwise, /gross injustice may be caused to any of the parties. In case some gross mistake or illegality has been committed in previous award/judgment of not making deduction etc. and/or sufficient evidence had not been adduced and better evidence is adduced in case at hand, previous award/judgment being not inter-parties cannot be followed and if land is not similar in nature in all aspects it has to be out-rightly rejected as done in the case of comparative exemplars. Sale deeds are at par for evidentiary value with such awards of the court as court bases its conclusions on such transaction only, to ultimately determine the value of the property.
(IX) To rely upon judgment/award in case it does not form part of evidence recorded by reference court, an application under Order 41 Rule 27 is to be filed to adduce evidence and if it is allowed opposite party has to be given opportunity to lead evidence in rebuttal. The award/judgment cannot be taken into consideration while hearing arguments unless they form part of evidence in the case. An appellate court should be satisfied that the additional evidence is required to enable it either to pronounce judgment or for any other substantial cause.
(X) Section 43 of the Evidence Act enacts that judgments other than those falling under Sections 40 to 42 are irrelevant unless they fall under some other provision of the Evidence Act; and, even if they do fall under any such other provision, all that is relevant, under Section 43 of the Evidence Act, is "the existence" of such judgment, order, or decree provided it "is a fact in issue, or is relevant under some other provision of this Act. An obvious instance of such other provision is a judgment falling under Section 13 of the Evidence Act. The illustration to Section 13 of the Evidence Act indicates the kind of facts on which the existence of judgments may be relevant.
(XI) The existence of a judgment would not prove the value of some piece of land not dealt with at all in the judgment admitted in evidence. Even slight differences in situation can, sometimes, cause considerable differences in value.
(XII) Judgments to be relevant if they relate to similarly situated properties and contain determinations of value on dates fairly proximate to the relevant date in a case.
29. In Printers House Pvt. Ltd. vs. Mst. Saiyadan (dead) by L.Rs. & Ors. (1994) 2 SCC 133, A three-Judge Bench of Hon'ble Supreme Court had considered previous awards and sale exemplar and held these to be similar for determination of market value. It observed:
"16. If the comparable sales or previous awards are more than one, whether the average price fetched by all the comparable sales should form the ''price basis' for determination of the market value of the acquired land or the price fetched by the nearest or closest of the comparable sales should alone form the ''price basis' for determination of the market value of the acquired land, being the real point requiring our consideration here, we shall deal with it. When several sale-deeds or previous awards are produced in court as evidence of comparable sales, court has to necessarily examine every sale or award to find out as to what is the land which is the subject of sale or award and as to what is the price fetched by its sale or by the award made therefor.
17. If the sale is found to be a genuine one or the award is an accepted one, and the sale or award pertains to land which was sold or acquired at about the time of publication of preliminary notification under the Act in respect of the acquired land, the market value of which has to be determined, the court has to mark the location and the features (advantages and disadvantages) of the land covered by the sale or the award. This process involves the marking by court of the size, shape, tenure, potentiality etc. of the land. Keeping in view the various factors marked or noticed respecting the land covered by the sale or award, as the case may be, presence or absence of such factors, degree of presence or degree of absence of such factors in the acquired land the market value of which has to be determined, should be seen. When so seen, if it is found that the land covered by the sale or award, as the case may be, is almost identical with the acquired land under consideration, the land under the sale or the market value determined for the land in the award could be taken by the court as the ''price basis' for determining the market value of the acquired land under consideration. If there are more comparable sales or awards of the same type, no difficulty arises since the ''price basis' to be got from them would be common. But, difficulty arises when the comparable sales or awards are not of the same kind and when each of them furnish a different ''price basis'. This difficulty cannot be overcome by averaging the prices fetched by all the comparable sales or awards for getting the ''price basis' on which the market value of the acquired land could be determined. It is so, for the obvious reason that such ''price basis' may vary largely depending even on comparable sales or awards. Moreover, ''price basis' got by averaging comparable sales or awards which are not of the same kind, cannot be correct reflection of the price which the willing seller would have got from the willing buyer, if the acquired land had been sold in the market. For instance, in the case on hand, there are three claimants. The plots of their acquired land, which are five in number, are not similar, in that, their location, size, shape vary greatly. One plot of land of one claimant and another plot of another claimant appear to be of one type. Another plot of land of one of them appears to be of a different type. Yet another plot of the second of them appears to be different. Insofar as third claimant's plot of land is concerned, it appears to be altogether different from the rest. Therefore, if each of the claimants were to sell her/his respective plots of land in the open market, it is impossible to think that they would have got a uniform rate for their lands. The position cannot be different if the comparable sales or awards when relate to different lands. Therefore, when there are several comparable sales or awards pertaining to different lands, what is required of the court is to choose that sale or award relating to a land which closely or nearly compares with the plot of land the market value of which it has to determine, and to take the price of land of such sale or award as the basis for determining the market value of the land under consideration."
(Emphasis supplied by me)
30. In Karan Singh & Ors. vs. Union of India (1997) 8 SCC 186, Hon'ble Supreme Court held that evidence has to be adduced to show similarity of the land in question to the one covered by previous award/judgment and observed:
"8. Learned counsel for the appellants then urged that the High Court erroneously discarded Ext. A-11 which was an award in respect of a land at Village Jhilmil Tahirpur on the ground that it was not a previous judgment of the Court. The land comprised in the award was acquired under notification issued under Section 4 of the Act on 27-7-1981. By the said award, the Court awarded compensation @ Rs 625 per sq. yd. It has earlier been seen that in the present case the notification issued under Section 4 of the Act was earlier in point of time than the notification issued for acquisition of land comprised in Ext. A-11. There is no quarrel with the proposition that judgments of courts in land acquisition cases or awards given by the Land Acquisition Officers can be relied upon as a good piece of evidence for determining the market value of the land acquired under certain circumstances. One of the circumstances being that such an award or judgment of the court of law must be a previous judgment. In the case of Pal Singh v. Union Territory of Chandigarh(1992) 4 SCC 400, it was observed thus: (SCC pp. 402-03, para 5) "But what cannot be overlooked is, that for a judgment relating to value of land to be admitted in evidence either as an instance or as one from which the market value of the acquired land could be inferred or deduced, must have been a previous judgment of court and as an instance, it must have been proved by the person relying upon such judgment by adducing evidence aliunde that due regard being given to all attendant facts and circumstances, it could furnish the basis for determining the market value of the acquired land." Following this decision, we hold that it is only the previous judgment of a court or an award which can be made the basis for assessment of the market value of the acquired land subject to party relying on such judgment to adduce evidence for showing that due regard being given to all attendant facts it could form the basis for fixing the market value of acquired land."
(Emphasis supplied)
31. From the principles laid down in the case of Manoj Kumar (supra), it is clear that previous award/judgment is merely a piece of evidence and it may form part of evidence only if an application under Order 41 Rule 27 C.P.C. is filed to adduce evidence and if it is allowed, the opposite party has to be given opportunity to lead evidence in rebuttal. An award/judgment cannot be taken into consideration, while hearing arguments, unless they form part of evidence in the case. It is only the previous judgment of a Court or an award which can be made basis for assessment of market value of the acquired land subject to party relying on such judgments to adduce evidence for showing that due regard being given to all attendant facts it could form the basis for fixing the market value for acquired land. To base determination of compensation on a previous award/judgment the evidence in the previous judgment/award and its acceptability on judicial parameters has to be necessarily gone into, otherwise, gross injustice may be caused to any of the party.
Principles administering justice of compensation and costs:-
32. In Narendra and others vs. State of U.P. and others (2017) 9 SCC 426, Hon'ble Supreme Court in a matter of determination of compensation of land acquired by Ghaziabad Development Authority, explained the provisions of Section 28A of the Act (redetermination of compensation of the amount of compensation on the basis of the award of the court) and principles administering justice to marginalized section of the society and the objection to the denial of compensation at a rate higher than the rate on which court fees was paid, and held as under:
"8. The purpose and objective behind the aforesaid provision is salutary in nature. It is kept in mind that those land owners who are agriculturist in most of the cases, and whose land is acquired for public purpose should get fair compensation. Once a particular rate of compensation is judicially determined, which becomes a fair compensation, benefit thereof is to be given even to those who could not approach the court. It is with this aim the aforesaid provision is incorporated by the Legislature. Once we keep the aforesaid purpose in mind, the mere fact that the compensation which was claimed by some of the villagers was at lesser rate than the compensation which is ultimately determined to be fair compensation, should not be a ground to deny such persons appropriate and fair compensation on the ground that they claimed compensation at a lesser rate. In such cases, strict rule of pleadings are not be made applicable and rendering substantial justice to the parties has to be the paramount consideration. It is to be kept in mind that in the matter of compulsory acquisition of lands by the Government, the villagers whose land gets acquired are not willing parties. It was not their voluntary act to sell of their land. They were compelled to give the land to the State for public purpose. For this purpose, the consideration which is to be paid to them is also not of their Civil Appeal Nos. 10429-10430 of 2017 [@SLP(C) Nos. 2354-2355 of 2017] Page 8 of 16 choice. On the contrary, as per the scheme of the Act, the rate at which compensation should be paid to the persons divested of their land is determined by the Land Acquisition Collector. Scheme further provides that his determination is subject to judicial scrutiny in the form of reference to the District Judge and appeal to the High Court etc. In order to ensure that the land owners are given proper compensation, the Act provides for ''fair compensation'. Once such a fair compensation is determined judicially, all land owners whose land was taken away by the same Notification should become the beneficiary thereof. Not only it is an aspect of good governance, failing to do so would also amount to discrimination by giving different treatment to the persons though identically situated. On technical grounds, like the one adopted by the High Court in the impugned judgment, this fair treatment cannot be denied to them.
12. Justice is a core value of any judicial system. It is the ultimate aim in the decision making process. In post-traditional liberal democratic theories of justice, the background assumption is that all humans have equal value and should, therefore, be treated as equal, as well as by equal laws. This can be described as ''Reflective Equilibrium'. The method of Reflective Equilibrium was first introduced by Nelson Goodman in ''Fact, Fiction and Forecast' (1955). However, it is John Rawls who elaborated this Civil Appeal Nos. 10429-10430 of 2017 [@SLP(C) Nos. 2354-2355 of 2017] Page 11 of 16 method of Reflective Equilibrium by introducing the concept of ''Justice as Fairness'. While on the one hand, we have the doctrine of ''justice as fairness', as propounded by John Rawls and elaborated by various jurists thereafter in the field of law and political philosophy, we also have the notion of ''Distributive Justice' propounded by Hume which aims at achieving a society producing maximum happiness or net satisfaction. When we combine Rawls's notion of ''Justice as Fairness' with the notions of ''Distributive Justice', to which Noble Laureate Prof. Amartya Sen has also subscribed, we get jurisprudential basis for achieving just results for doing justice to the weaker section of the society.
13. From the human rights perspective, persons belonging to the weaker sections are disadvantaged people who are unable to acquire and use their rights because of poverty, social or other constraints. They are not in a position to approach the courts even when their rights are violated; they are victimized or deprived of their legitimate due. Here lies the importance of access to justice for socially and economically disadvantaged people. When such people are denied the basic right of survival and access to justice, it further aggravates their poverty. Therefore, even in order to eliminate poverty, access to justice to Civil Appeal Nos. 10429-10430 of 2017 [@SLP(C) Nos. 2354-2355 of 2017] Page 12 of 16 the poor sections of the society becomes imperative. In the instant case, it is the poverty which compelled the appellants to restrict the claim to Rs.115/- per sq. yard, as they were not in a position to pay the court fee on a higher amount.
17. The High Court, in the process, also took aid of Section 28 of the Act. Thus, even those villagers whose land was acquired subsequently, are given compensation at the rate of Rs.297/- per square yards. Depriving this rate to the appellants herein would be nothing but travesty of justice."
(Emphasis supplied by me)
33. In Ashok Kumar Vs. State of Haryana, (2016) 4 SCC 544 (Para-7), Hon'ble Supreme Court held that after the amendment in the Act in the year 1984 the cap on maximum has been expressly omitted and the cap that is put is only on minimum, it is clear that the amount of compensation that a court can award is no longer restricted to the amount claimed by the applicant. It is the duty of the Court to award just and fair compensation taking into consideration the true market value and other relevant factors, irrespective of the claim made by the owner.
34. In the case of Mahanadi Coal Fields Ltd. & Anr Vs. Mathias Oram & Ors. 2010 (11) SCC 269 (paras 10 and 11) after quoting the remarks of Dr. B.R. Ambedkar, the chief architect of the Constitution of India, Hon'ble Supreme Court while considering a land acquisition matter, observed that it is very often the process of development that most starkly confirms the fears expressed by Dr. Ambedkar about our democracy. A blinkered vision of development, complete apathy towards those who are highly adversely affected by the development process and a cynical unconcern for the enforcement of the laws lead to a situation where the rights and benefits promised and guaranteed under the constitution hardly ever reach the most marginalized citizens. Even when laws relating to land acquisition and resettlement are implemented perfectly and comprehensively which happens rarely, uncomfortable questions remain. For people whose lives and livelihoods are intrinsically connected to the land, the economic and cultural shift to a market economy can be traumatic.
35. In the case of Bhusawal Municipal Council Vs Nivrutti Ramchandra Phalak and others, 2014(2) AWC 1407 (SC) (paras 16,17,18), Hon'ble Supreme Court considered the plight of farmers affected by land acquisition and creation of compulsive situation to indulge in luxury litigation and held as under :
"16. The judicial process of the court cannot subvert justice for the reason that the court exercises its jurisdiction only in furtherance of justice. The State/authority often drags poor uprooted claimants even for payment of a paltry amount upto this Court, wasting the public money in such luxury litigation without realising that poor citizens cannot afford the exorbitant costs of litigation and, unfortunately, no superior officer of the State is accountable for such unreasonable conduct. It would be apt to quote the well known words of Justice Brennan:
"Nothing rankles more in the human heart than a brooding sense of injustice. Illness we can put up with. But injustice makes us want to pull things down. When only the rich can enjoy the law, as a doubtful luxury, and the poor, who need it most, cannot have it because its expense puts it beyond their reach, the threat to the continued existence of free democracy is not imaginary but very real, because democracy's very life depends upon making the machinery of justice so effective that every citizen shall believe in and benefit by its impartiality and fairness."
(Emphasis supplied by me)
36. The fundamental right of a farmer to cultivate his land is a part of right to livelihood. Agricultural land is the foundation for a sense of security and freedom from fear. Assured possession is a lasting source for peace and prosperity. India being predominantly an agricultural society, there is a "strong linkage between the land and the person's status in the social system." "A blinkered vision of development, complete apathy towards those who are highly adversely affected by the development process and a cynical unconcern for the enforcement or the laws lead to a situation where the rights and benefits promised and guaranteed under the Constitution hardly ever reach the most marginalised citizens. For people whose lives and livelihoods are intrinsically connected to the land, the economic and cultural shift to a market economy can be traumatic." (Vide: Mahanadi Coal Fields Ltd. & Anr. v. Mathias Oram & Ors., (2010) 11 SCC 269; and Narmada Bachao Andolan v. State of Madhya Pradesh & Anr., AIR 2011 SC 1989)
37. A farmer's life is a tale of continuous experimentation and struggle for existence. Mere words or a visual can never convey what it means to live a life as an Indian farmer. Unless one experiences their struggle, that headache he will never know how it feels. The risks faced by the farming community are many; they relate to natural calamities such as drought and floods; high fluctuation in the prices of input as well as output, over which he has no control whatsoever; a credit system which never extends a helping hand to the neediest; domination by middlemen who enjoy the fruits of a farmer's hard work; spurious inputs, and the recent phenomenon of labour shortages, which can be conveniently added to his tale of woes. Of late, there have been many cases of desperate farmers ending their lives in different parts of the country. The Principles of Economics provides for the producer of a commodity to determine his prices but an Indian farmer perhaps is the only exception to this principle of economics, for even getting a decent price for their produce is difficult for them. Economic growth through the 1990's had made India a more market- oriented economy, but had failed to benefit all Indians equally. The problems that plagued the farmers several decades ago are still glaringly present today. Income through farming is not enough to meet even the minimum needs of a farming family. Thankfully the Central Government has recently started a support system like free health facilities under the scheme "Ayushman Bharat". Number of steps are yet to be taken to achieve the dreams of Dr. B.R. Ambedkar, the Chief Architect of the Constitution of India; and Mahatma Gandhi, the father of the Nation.
38. I would like to add something more to justify imposition of costs upon the respondent-NOIDA for payment of compensation to the claimants - appellants (poor farmers) who were not only deprived of their means of livelihood (agriculture), their sense of economic security, peace, prosperity and social status, on account of compulsory acquisition of their lands but difficult situation has also been created by the respondents for the claimants appellants by dragging them in luxury litigation for more than twenty eight years from the date of acquisition including about 16 years in this court to get just and fair compensation, without realising that poor farmers cannot afford the exorbitant cost of litigation. This reminds the court the fear expressed by Dr. B.R. Ambedkar, the Chief architect of the Constitution of India, about our democracy as noted by Hon'ble Supreme Court in the case of Mahanadi Coal Fields Ltd. and another (supra).
Determination of Compensation in present cases:-
39. Having set forth the facts of the present case, principles for determination of compensation under Section 23 of the Act, evidentiary value of a previous award/judgment and determination of market value of acquired land on the basis of market value prevailing on the date of acquisition and/or prior to acquisition but not subsequent to the date of acquisition, now I proceed to examine the rival submissions and the evidences on record so as to determine the market value of the acquired land for compensation under section 23 of the Act.
40. Admittedly no sale deed exemplar of sale of plot of village Morna of a date within three years before the acquisition dated 02.02.1991, was filed in evidence. The sale deed exemplar being 24ga dated 13.01.1992 disclosing sale of a land of village Morna @ Rs.418/- per square yard was filed in evidence by the claimants which is of a subsequent date, i.e. about one year after the present acquisition. In most of the acquisitions of land of adjoining villages in the years 1989-90, compensation was determined by the High Court @ Rs.297/- per square yard. The compensation of land of nearby village Bhangel Begumpur relating to acquisition of 30.11.1989 (paper No.27ga in L.A.R. No.384 of 1993) was determined @ Rs.300/- per square yard.
41. The Division Bench of this court in the case of Bir Singh (supra) determined compensation @ Rs.340/- per square yard with respect to the land of village Chhalera Bangar acquired by a notification dated 05.01.1991 which was enhanced to Rs.449/- per square yard by Hon'ble Supreme Court in the case of Bir Singh and others vs. State of U.p. and another (Civil Appeal No.18620-18623 of 2017) in view of a sale deed exemplar of 16.12.1988 which was filed in evidence reflecting sale of a land of village Chhalera Bangar @ Rs.400/- per square yard. On the basis of that sale deed exemplar, Hon'ble Supreme Court took the market value of land after deduction as on 16.12.1988 to be Rs.340/- and thereafter added 15% enhancement for two years and four months to arrive at the market value of Rs.449/- per square yard as on the date of acquisition, i.e. 05.01.1991. In the present case, no such sale deed exemplar of village Morna of a date within three years of the date of acquisition has been filed in evidence by the parties. Even copy of the judgment of Hon'ble Supreme Court in the case of Bir Singh (supra) has also not been filed in additional evidence under Order XLI Rule 27, C.P.C.
42. However, paper No.24ga is the sale deed of 13.01.1992 relating to land of village Morna sold @ Rs.418/- per square yard. This evidence was led by the claimants appellants disclosing highest selling rate of a land of village Morna @ Rs.418/- per square yard but it is of 13.01.1992 which is subsequent to the present acquisition dated 02.02.1991. Thus, the outer limit reflecting market value of land of village Morna after about one year of the present acquisition, has been established by the claimants appellants to be Rs.418/- per square yard. On the other hand, judgments of this court or Hon'ble Supreme Court as briefly discussed in the body of this judgment, reveal determination of compensation mostly @ Rs.297/- per square yard for acquisitions of lands of adjoining or nearby villages in the year 1989-90. Thus, the evidences as led by the parties and the judgments of Hon'ble Supreme Court reflects following figures relevant for consideration of market value of the land of village Morna acquired by notification dated 02.02.1991:-
(i) On the basis of compensation of land of adjoining or nearby villages determined by this court or by Hon'ble Supreme Court @ Rs.297/- per square yard with respect to acquisitions made in the year 1989-90, the market value on adding 15% escalation for one year would come to Rs.345/- per square yard as on 02.02.1991.
(ii) On the basis of paper No.27ga pertaining to acquisition of 30.11.1989 reflecting determination of compensation @ Rs.300/- per square yard, the market value on enhancement by 15% per annum for one year and two months would come to Rs.353/- per square yard as on the date of acquisition in question, i.e. 02.02.1991.
(iii) Judgments of this court and of Hon'ble Supreme Court, on determination of compensation of adjoining or nearby villages in the year 1989-90 @ Rs.297/- per square yard and paper No.24ga dated 13.01.1992 indicates range of market value between the year 1990 and January, 1992 to be Rs.297/- to Rs.418/- per square yard. The date of present acquisition is 02.02.1991 which falls in the mid of the aforesaid period. Therefore, if the mean of the aforesaid range of market value is taken then as on 02.02.1991, it would come to about Rs.357.50 per square yard.
43. On the basis of the above discussion, it transpires that fair market value of the land of village Morna acquired on 02.02.1991 should be Rs.355/- per square yard. Therefore, the compensation of the land of the claimants appellants of village Morna acquired by notification under Section 4(1) of the Act, 1894 dated 02.02.1991 is determined @ Rs.355/- per square yard. The impugned judgment dated 10.02.2003 and decree passed by the IInd Additional District and Sessions Judge, Ghaziabad is accordingly modified. The claimants-appellants shall be entitled to compensation of their acquired land @ Rs.355/- per square yard and other statutory benefits and interest.
44. In result, all the above noted first appeals are allowed to the extent indicated above, with costs of Rs.5000/- to each of the appellants in each appeal. The compensation and costs shall be paid by the respondent NOIDA to the claimants appellants within three months.
45. The deficiency of court fees, if any, on determination of compensation as aforesaid, shall be computed/ reported by Stamp Reporter within two weeks and thereupon, the concerned claimants appellants shall deposit it within next four weeks.
Order Date :- 25.03.2019
NLY
