State Of U.P. And Another vs Ramji Singh
2019 Latest Caselaw 4298 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 59
 

 
Case :- FIRST APPEAL No. - 1080 of 2004
 

 
Appellant :- State Of U.P. And Another
 
Respondent :- Ramji Singh
 
Counsel for Appellant :- S.C.Srivastava,Ashish Mishra
 
Counsel for Respondent :- R.K. Asthana
 
			With
 

 
Case :- FIRST APPEAL No. - 271 of 2009
 

 
Appellant :- Roop Chand And Another
 
Respondent :- State Of U.P. And Another
 
Counsel for Appellant :- M.A. Haseen,S.K. Dwivedi
 
Counsel for Respondent :- SC
 

 
Hon'ble Surya Prakash Kesarwani,J.

1. Heard learned standing counsel for the State-appellants in FIRST APPEAL No. - 1080 of 2004 and respondent in FIRST APPEAL No. - 271 of 2009 and Sri M.A. Haseen, learned counsel for the claimants-appellants in FIRST APPEAL No. - 271 of 2009. No one appears on behalf of the claimant-respondent in First Appeal No.1080 of 2004, even in the revised call.

2. By Notification dated 19.03.1989, under Section 4(1) of the Land Acquisition Act, 1894 (hereinafter referred to as the "Act") land of eight Villages total measuring 442.095 acres was acquired for District Headquarter and residential quarters for Officers and employees in District - Mau, which includes the acquisition of land measuring 54.962 acres land of village in question i.e. Village - Khwaja Jhanpur and 44.962 Acres of Village - Chandra Bhanpur. The Special Land Acquisition Officer made the award on 9.8.1989, offering compensation for land of Village - Khwaja Jhanpur @ Rs.23,554.60 per acre and for land of Village - Chandra Bhanpur @ Rs.25,000.00 per acre. Dissatisfied with the award several land owners filed references under Section 18 of the Act. By judgment dated 15.5.1991 in LAR No.87 of 1991 (Ramji Singh Vs. State), the compensation of land of Village - Khwaja Jhanpur, was determined @ Rs. 1 lac per acre and for land of Village - Chandra Bhanpur, the compensation has been determined @ Rs.80,000/- per acre. This judgment has been challenged by the State appellants in the present First Appeal No.1080 of 2004, praying for reduction of compensation.

3. By judgment dated 29.8.1996, in LAR No.50 of 1991 the compensation of the acquired land of Village - Chandra Bhanpur, under the same acquisition Notification has been determined @ Rs.46554.60 per acre against which the claimants have filed the connected First Appeal No.271 of 2005 for enhancement of compensation.

4. An affidavit of compliance dated 30.4.2019, relating to the acquisition in question was filed by the State-appellants in First Appeal No.668 of 2008 (State of U.P. Vs. Israil Haque). In paragraph 4 of the said affidavit the State-appellants have given particulars of other First Appeals relating to the acquisition in question of Village - Khwaja Jhanpur and Village - Chandra Bhanpur, which shows that First Appeal No.418 of 2000 (arising from the judgment in LAR No.11 of 1991); First Appeal No.5 of 1997 (arising from judgment in LAR No.28 of 1991); First Appeal No.114 of 2000 (arising from judgment in LAR No.39 of 1991); First Appeal No.212 of 2009 (arising from judgment in LAR No.40 of 1991) and in First Appeal No.72 of 2008 (arising from judgment in LAR No.88 of 1991), all relating to the acquisition in question of land of Village - Khwaja Jhanpur, were filed by the State Government which were dismissed by this Court. By judgment dated 16.5.2012 in the aforesaid First Appeal No.5 of 1997 (State of U.P. Vs. Sukkhu and another), this Court held, as under:-

"Heard learned standing counsel for the appellant. Inspite of sufficient service no one has appeared for the respondent.

This appeal is directed against award dated 25.9.1996 given by 2nd Additional district Judge Mau in L.A. Reference no.28 of 1991. The land of the respondent was acquired for constructing the District Headquarters in the newly carved out District Mau. A notification under Section 4, Land Acquisition Act was issued on 19.3.1989. S.L.A.O. determined the market value of the acquired land @ of about Rs.23500/- per acre. Dissatisfied with the offered compensation/market value respondents requested for making reference under Section 18 of Land Acquisition Act which was accordingly done. The reference Court enhanced the market value of respondents' acquired land to about Rs.47000/- per acre i.e. double the rate which had been determined/awarded by the S.L.A.O.

I do not find least error in the impugned judgment. Copies of two sale deeds of small portions of 56 kari and 70 kari (1 acre = 1000 kari) which were filed by the respondents through which lands were sold @ of about Rs.5,00,000/- and about Rs. 3,00,000/- per acre were discarded by the Reference court on the ground that they were of very small portions. Even sale deeds of small portions may be taken into consideration, if sale deeds of bigger portions are not available, after suitable deductions. However, learned A.D.J. held that taking the average rate from the sale deeds executed within three years from the date of Section 4 notification, the rate came to about Rs.47,000/- per acre which was also the rate mentioned in a sale deed executed by Dev Narayan in favour of Smt. Geeta. Even though the copies of the sale deeds (except of two sale deeds of 56 & 70 karies) were not filed by the respondents however, the Reference court looked into the details of all the sale deeds executed in the area in question within three years from the date of Section 4 notification as mentioned in the award given by S.L.A.O. Even though it is not very correct approach and normally reference must be decided on the basis of evidence brought on record before the reference Court including certified copies of sale deeds, however, copies of at least two sale deeds had been filed before the Reference Court. Even after allowing about 80% deduction in the rate on the ground of smallness of area sold through the sale deeds copies of which were filed before the Reference Court the rate would not come to less than Rs.47000/- as awarded by Reference Court.

Moreover this appeal was filed before the Joint Registrar on 7.1.1997, thereafter matter was listed before the Court on 21.1.1997, on that date no order was passed on the stay application. Appeal has been admitted on 16.9.2008. Till date no order has been passed on stay application. Respondents must have realised the enhanced compensation. Even if appeal is allowed it will not be just and proper to permit the appellant to realise the amount back from the claimants as held by the Supreme Court in Stanes Higher Secondary School Vs. SpecialTehsildar (L.A). A.I.R. 2010 SC 1323 (para 12) and Fida Husain Vs. M.D.A. A.I.R. 2011 S.C. 3001 (para 28).

Accordingly appeal is dismissed."

5. The principles of determination of compensation have been given in Section 23 of the Act.

6. 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)

7. Perusal of the impugned judgment dated 15.5.1991 in LAR No.87 of 1991, which is subject matter of challenge in First Appeal No.1080 of 2004, shows that the compensation has been determined without complying the principles laid down in Section 23 of the Act and in the judgment in the cases of Chimanlal Har Govinddas (supra), Dyagala Devamma and others (supra), Manoj Kumar and others (supra).

8. On the other hand, this Court in the case of State of U.P. Vs. Sukhu and another (supra) has considered the determination of market value of land of Village - Khwaja Jhanpur, acquired under the same Notification and held that the market value of Rs.47,000/- determined by the Reference Court to be slightly excessive but did not interfere with it on the ground that since no order on the stay application was passed and the claimants-respondents must have realised the enhanced compensation, therefore, it will not be just and proper to permit the State-appellant to realise the amount back from the claimants as held by Hon'ble Supreme Court in Stanes Higher Secondary School Vs. SpecialTehsildar (L.A). A.I.R. 2010 SC 1323 (para 12) and Fida Husain Vs. M.D.A. A.I.R. 2011 S.C. 3001 (para 28). Therefore, the impugned judgment dated 15.5.1991, passed in LAR No.87 of 1991 and challenged in First Appeal No.1080 of 2004 can not be sustained to the extent that the market value of the acquired land has been determined at Rs.1 lack per acre for land of Village - Khwaja Jhanpur. Consequently, the impugned judgment is modified and the market value is determined at Rs.47,000/- per acre. The appeal is partly allowed.

9. So far as the determination of market value of land of Village - Chandra Bhanpur, is concerned, I find that no foundation to determine compensation in terms of the principles laid down in Section 23 of the Act, has been given in the impugned judgment to arrive at the market value of Rs.80,000/- per acre. At the same time by judgment dated 29.8.1996 in LAR No.50 of 1991, Roop Chand and others Vs. State of U.P. and others, which has been challenged in the connected First Appeal No.271 of 2009; the Reference Court determined compensation of the acquired land of Village - Chandra Bhanpur, @ Rs.46554.60 per acre.

10. The sale deed exemplar dated 23.1.1989 relied in LAR No.87 of 1991 is of a very small piece of land disclosing selling rate of Rs.1,42,000/- per acre, while the other sale deed exemplar disclosed selling rate of Rs.28,000/- per acre. Since the sale deed exemplar dated 23.1.1989 is of a very small piece of land, therefore, the deduction of 65% deserves to be allowed towards largeness of area and development cost to arrive at the market value of the acquired land of Village - Chandra Bhanpur. Thus, on allowing the deduction of 65% the market value of the land of Village - Chandra Bhanpur, acquired under the Notification in question, would come to Rs.49,700/- per acre. Accordingly, the compensation of the acquired land of the claimants of Village - Chandra Bhanpur, acquired under the Notification in question, is determined at Rs.49,700/- per acre.

11. In result, the impugned judgment dated 29.8.1996 and the decree in LAR No.50 of 1991 (Roop Chand and others Vs. State of U.P. and other), passed by the 2nd Additional District Judg, Mau, is modified and the connected First Appeal No.271 of 2005 filed by the claimants is partly allowed. The claimants-appellants shall be entitled for compensation of their acquired land of Village - Chandra Bhanpur, @ Rs.49,700/- per acre alongwith other statutory benefits and interest. Accordingly, State-respondents shall pay compensation to the claimants-appellants after adjusting amount already paid.

12. The judgment dated 15.5.1991 and the decree in LAR No.87 of 1991 (Ramji Singh Vs. State), determining compensation @ Rs. 1 lac per acre for the land of Village - Khwaja Jhanpur and @ Rs. 80,000/- per acre for the land of Village - Chandra Bhanpur, is modified by reducing the compensation of the acquired land of Village - Khwaja Jhanpur to Rs. 47,000/- per acre and the land of Village - Chandra Bhanpur, to Rs.49,700/- per acre. The First Appeal No.1080 of 2004 filed by the State is partly allowed.

13. Thus, both the appeals are partly allowed as indicated above and the impugned judgments and decrees are accordingly modified.

Order Date :- 9.5.2019/vkg