Allahabad High Court

Smt. Kailasho Devi vs State Of U.P. on 6 April, 2022

Bench: J.J. Munir




HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 6							Reserved
 
									   A.F.R.
 
Case :- FIRST APPEAL No. - 546 of 1994
 

 
Appellant :- Smt. Kailasho Devi
 
Respondent :- State of U.P. and another
 
Counsel for Appellant :- Bishnu Sahai,Ashok Kumar Tripathi (Now Ashok Tripathi),B. Dayal,P.K. Rajput,R.P. Singh Yadav,R.P.S. Raghav,R.P.S. Yadav,Sanjay Srivastava,V. Sahai
 
Counsel for Respondent :- S.C.,Nipun Singh
 

 
Hon'ble J.J. Munir,J.

1. This first appeal is directed against a judgment and award of Mr. M.P.S. Tejan, the then 7th Additional District Judge, Bulandshahr dated 24th July, 1991 rejecting L.A.R. No.233 of 1987 and affirming an award of the Special Land Acquisition Officer (Second), Uttar Pradesh Avas Evam Vikas Parishad, Kamla Nagar, Agra (for short, 'the SLAO') dated 11.10.1984, awarding the claimant-appellant compensation at the rate of Rs.29.08 per square yard for her land acquired by the Uttar Pradesh Avas Evam Vikas Parishad (for short, 'the Parishad').

2. One Kallan son of Ganga Sahai had agricultural land in Village Tanda, Pargana Baran, Tehsil and District Bulandshahr comprising Khasra No.157 admeasuring 1 bigha 17 biswa and Khasra No.158 admeasuring 2 biswa. The land was of good quality and described as class 'Sinchit Bada'. It was assessed to land revenue in the sum of Rs.12.50 per bigha. The land aforesaid shall hereinafter be referred to as, ''the acquired land'. A notification under Section 28 of the Uttar Pradesh Avas Evam Vikas Parishad Adhiniyam, 1965 (for short, 'the Act') relating to the acquired land was published on 29.09.1977 in the State Gazette. This was followed by a notification under Section 32 of the Act dated 25.11.1979, also published in the Official Gazette. On 11.10.1984, an award was made under the Act by the SLAO, assessing the value of the land at Rs.38.77 per square yard. After deducting 25% per square yard, compensation for Kallan's land was assessed at the rate of Rs.29.08 per square yard.

3. In accordance with the award made by the SLAO, Kallan's substantive compensation for the acquired land worked out to a figure of Rs.1,71,535.65. Adding to it 30% solatium and 12% additional compensation, besides interest, a total sum of Rs.3,27,854.67 was determined.

4. Aggrieved by the award made by the SLAO, Kallan prefered a reference under Section 18 of the Land Acquisition Act, 1894 to the District Judge, Meerut. It must be clarified here, for the sake of record, that pending proceedings before the Judge and not before Kallan's evidence was recorded in Court, he passed away on 03.12.1990, leaving behind him, as his sole heir and LR, his married daughter Smt. Kailasho Devi wife of Malwant Singh. Kallan's estate devolved upon Smt. Kailasho and she was substituted in his stead in the pending reference before the Judge. Kallan and after him, his heir and LR, Smt. Kailasho, shall hereinafter be referred to as ''the appellant', unless the context otherwise requires. Kallan in his time, while moving the reference, came up with a case that his acquired land fell within the local limits of the Nagar Palika, Bulandshahr, but the SLAO had proceeded to determine its value on fallacious grounds. It was urged that though the SLAO has admitted the fact that the acquired land has housing potential, he had not looked into the exemplar sale deed relating to land lying in front of the acquired land, that was executed before the time when the notification dated 29.09.1979 under Section 28 of the Act was published. This exemplar clearly indicates that between the willing buyer and the willing seller, the sale consideration, that was settled and paid, was Rs.100/- per square yard. A number of other contemporaneous exemplars were referred to, where the rate of land, that was settled and paid by willing buyers to willing sellers for land, similarly circumstanced as the acquired land, was Rs.100/-. These exemplars were from Khasra Nos.56 and 72. It was pleaded that the acquired land had in its vicinity a wholesale market of foodgrains (अनाज मण्डी) and developing residential and commercial sites. It was the appellant's demand in the reference that the rate of land assed by the SLAO for the purpose of compensation was clearly fallacious and he was entitled to Rs.100/- per square yard.

5. A written statement was put in on behalf of the State Government represented by the Collector of Bulandshahr. It was pleaded that Village Tanda has been included in the local limits of the Nagar Palika after the first notification was published for acquisition. It must be remarked here that the notification for acquisition of the appellant's land, along with a large number of other similarly situate lands in Village Tanda, was for the purpose of a housing scheme to be developed by the Parishad. It was the State's case that the appropriate exemplar had been selected after searching through a number of them. It was also pleaded that upon knowledge of a housing scheme being floated, there were sale transactions at inflated rates entered into, that did not represent the true value of the land. The acquired land was agricultural and had no housing over it. It was employed for agriculture. The Mandi site had been constructed after the acquisition. It was broadly on these counts that the appellant's case was contested.

6. In support of his case, Kallan, the original appellant, testified in the dock before the Judge on 29.11.1989 and was thoroughly cross-examined. For the exemplar that the appellant relied on, a certified copy of the sale deed dated 04.04.1979 was filed, where land similar to the acquired land, admeasuring 216 square yards was sold by one Pt. Ghasiram son of Pt. Munshiram to Makkhan Lal and Narendra Pal Saxena for a total sale consideration of Rs.21,600/-. The rate indicated by the said exemplar was Rs.100/- per square yard. The said sale deed was assigned paper No. 30C.

7. The learned Judge did not accept the appellant's case for an enhanced value of the acquired land, that he urged. It was noticed by the learned Judge in the judgment impugned and the fact is not in dispute that the entire parcel of land, of which the acquired land is a part, acquired by the Parishad, was located on two main Highways, that is to say, Bulandshahr-Shikarpur Highway and the Bulandshahr-Anupshahr Highway. The appellant's land was found to be located close to the Bulandshahr-Shikarpur Highway. Upon scrutiny of the various exemplars, that were filed by the appellant and similarly situate land oustees, it was opined that the sale deeds listed at serial Nos.23-26 were close exemplars. Amongst these, the sale deed at serial No. 26 dated 07.07.1979 executed by Om Prakash in favour of one Dinesh Kumar, conveying to the latter an area of 245 square yards of land, was held to be a true exemplar. It represented the correct value of the acquired land. The rate of land indicated in the said exemplar was Rs.38.77 per square yard. After deducting 25%, the rate of compensation was worked out to be Rs.29.08 per square meter. The learned Judge took note of the sale deed dated 04.04.1979, that was relied upon by the appellant as well as another claimant, Niranjan Singh, whose reference was decided as the leading case by the Reference Court.

8. It was remarked that the rate of land reflected by sale deeds of smaller areas of land could not serve as valid exemplars. The learned Judge in the Reference Court has observed that it is true that where it is found that the acquired land is of good quality and has factories etc. in its vicinity, a higher compensation should be determined for it. The Judge, however, felt that it is not necessary that a sale deed of higher value may be the true exemplar. About the sale-deed executed by Ghasiram, on which the appellant has relied, it has been noticed that the relative land is located to the north of the road, whereas towards the south, there is a College and the Anupshahr Bus Stand.

9. About the appellant's land, it has been observed that in his cross-examination, the appellant has said that he had not filed on record sale deed for the past three years, because he did not know that it was necessary. It has also been admitted by the appellant that the acquired land has not been declared an abadi by the by S.D.O. The acquired land is located at a distance two furlongs from the Shikarpur-Bulandshahr Highway and from the Anupshahr-Bulandshahr Highway at a distance of one and a half furlongs. It has been remarked by the learned Judge that the appellant agrees that the acquired land is located not towards the Anupshahr Highway. It has been observed that the most valuable land is that which is located on the Anupshahr Highway and not on the Shikarpur Highway. It has also been observed that the witnesses, who have appeared in the appellant's case and the connected matters, have accepted that the land gets submerged under flood-water. The SLAO's award was perused by the Judge to opine that the SLAO acknowledges the fact that the acquired land is located close to two main highways, where they have in their vicinity commercial sites and abadi. The learned Judge has suspected most of the exemplars as evidencing inflated rates that were executed after notification of the housing scheme. He has gone with the SLAO to hold that the sale deeds at serial Nos. 23-26 represent the correct value. It is broadly on the aforesaid reasoning that the learned Judge has agreed with the SLAO.

10. Heard Mr. Ashok Tripathi, learned Counsel for the appellant, Mr. Awadhesh Kumar, learned Standing Counsel appearing on behalf of respondent no.1 and Mr. Nipun Singh, appearing on behalf of respondent no.2.

11. Mr. Ashok Tripathi, learned Counsel for the appellant has seriously assailed the award as one contrary to the evidence on record, both documentary and oral. He has drawn the attention of this Court to a copy of the sale deed dated 04.04.1979, paper No. 30C and the testimony of Kallan in the dock. Besides that, he has placed before the Court a copy of the judgment of their Lordships of the Supreme Court in Uttar Pradesh Avas Evam Vikas Parishad v. Ganga Saran (Dead) through LR and others, (2020) 14 SCC 238. The judgment was rendered relating to the same award covered by the same notification relating to Village Tanda, where a different Court of Reference had enhanced the compensation in LAR No. 128 of 1987 from Rs.29.08 per square yard to Rs.99/- per square yard. This Court had dismissed the first appeals, whereagainst their Lordships, after considering the various factors that the Reference Court took into account, because the judgment of this Court had not considered much evidence, opined the assessment to be correct. It is impressed upon this Court that the said assessment of compensation is squarely applicable to the facts here.

12. Mr. Awadhesh Kumar, learned Standing Counsel appearing on behalf of respondent no.1 and Mr. Nipun Singh, learned Counsel appearing on behalf of respondent no.2, have opposed the submissions and said that the Reference Court here has carefully distinguished relevant factors in judging the suitability of the appropriate exemplar to follow and has reached a correct conclusion that ought not to be disturbed.

13. This Court has carefully gone through the evidence on record.

14. What cannot be ignored is the fact that the acquired land is located close to two highways, the Bulandshahr-Anupshahr Highway and the Bulandshahr-Shikarpur Highway. Whether the land is located closer to one highway or the other, would not be of such decisive significance so as to trifle the value of the acquired land from what is evidenced by the exemplar cited by the appellant, paper No. 30C and support the meagre assessment made by the Trial Judge and the SLAO.

15. A perusal of the extract of the Khasra, paper No. 26C clearly shows the land to be of good quality, that is described as Sinchit Bada, which is irrigated land. There is no documentary evidence about the land getting submerged by flood waters. In his examination-in-chief, Kallan has said that the acquired land is near the stadium and I.P. Degree College, besides houses. No doubt, the appellant has said that he has not filed on record the exemplar of sale deeds for the past three years, but that appears to be more the result of a grueling cross-examination than a well-evidenced fact. The exemplar that has been filed is a sale deed dated 04.04.1979, whereas the notification under Section 28 of the Act in the present case was published on 29.09.1979. Thus, the exemplar relied upon by the appellant is very proximate in point of time to the notification under Section 28, that is relevant for the purpose of determination of the market value. In his cross-examination, Kallan, after admitting the fact that the acquired land did not house any abadi and had farming done over it, has said:

"इस जमीन से शिकारपुर वाली सड़क दो फर्लांग दूर है और अनूपशहर वाली सड़क 1 या 1-1/2 फर्लांग दूर है। नई मन्डी की स्थापना इस भूमि को अध्यापित करने से पहले हुई थी। इस भूमि से नई मन्डी 30-40गज की दूरी पर है। एक किलोमीटर दूर दूर नहीं। मेरे खेत से यदि अनूपशहर रोड पर आकर नई मन्डी को जावे तो 250 गज की दूरी है। स्टेडियम भाई पुरा वाली जमीन में नहीं है बल्कि टांडे की जमीन में है। अध्यापिती के समय काश्त की जमीन 50 हजार रूपये बीघा के हिसाब से बिकी है। उसके बैनामें भी है।

मैनें अध्यापिति के समय अधिकारी के समक्ष तीन फसलों की बावत खसरा दाखिल किया था। और यहाँ भी दाखिल किया है जिसमें तीन से ज्यादा फसले लिखी है। पटवारी फसलों की पड़ताल करता था।"

16. A perusal of the said cross-examination shows that the acquired land is located at two furlongs from the Shikarpur Highway and one and a half furlong from the Anupshahr Highway. The learned Judge says that the land on the Anupshahr Highway is more valuable. The land being valuable on a particular highway does not mean that it should be virtually within the control area of that highway. A land, that is at a distance of one and a half furlong from the Anupshahr Highway, would be entitled to all the benefits that accrue from the higher value of lands located on that highway. This particular land is in the vicinity of the two highways and would, therefore, be logically more valuable; may be like others similarly situate. The fact that the stadium was built prior to the acquisition has been specifically asserted by the appellant in his cross-examination, about which he has neither been contradicted or confronted with any previous statement or material.

17. The agricultural value of the land has been described as Rs.50,000/- per bigha. The land has been asserted to be one yielding three crops a year and this fact has also not been disputed on behalf of the State. The land that is shown in the exemplar relied upon by the appellant more or less represents the true value of lands located in the vicinity of the two State Highways. There is no particular feature about the acquired land that may diminish its value compared to others. In the context of parameters on which value of acquired land may be assessed, reference may be made with profit to the decision of a Division Bench of this Court in Meerut Development Authority Through its Secretary v. Basheshwar Dayal (Dead) Through L.Rs. and another, 2013 SCC OnLine All 13200. In Meerut Development Authority v. Basheshwar Dayal (supra), the principles, governing assessment of compensation based on various decisions of their Lordships of the Supreme Court, have been culled out thus:

"11. Having heard and considered the contentions of the learned Counsel for the parties and perused the material available on record including the impugned judgments of the Reference Court, we now first proceed to summarize the legal principles settled by Hon'ble Supreme Court in various judgments relevant for determination of market value, as under:

(i) Function of the Court in awarding compensation under the Act is to ascertain the market value of the land on the date of the notification under section 4(1),

(ii) The method for determination of market value may be:

(a) Opinion of experts,

(b) the price paid within a reasonable time in bona fide trans-actions of purchase of the lands acquired or the lands adjacent to the lands acquired and possessing similar advantages,

(Ref. Jawajee Nagnatham v. Revenue Divisional Officer [(1994) 4 SCC 595 para 5.] ). (iii) While fixing the market value of the acquired land, comparable sales method of valuation is preferred than other methods of valuation of land such as capitalisation of net income method or expert opinion method. Comparable sales method of valuation is preferred because it furnishes the evidence for determination of the market value of the acquired land at which a willing purchaser would pay for the acquired land if it had been sold in the open market at the time of issue of notification under section 4 of the Act. However, comparable sales method of valuation of land for fixing the market value of the acquired land is not always conclusive but subject to the following factors:--

(a) Sale must be a genuine transaction,

(b) the sale-deed must have been executed at the time proximate to the date of issue of notification under section 4 of the Act,

(d) the land covered by the sales must be similar to the acquired land,

(e) the size of plot of the land covered by the sales be comparable to the land acquired.

(f) if there is dissimilarity in regard to locality, shape, site or nature of land between land covered by sales and land acquired, it is open to the Court to proportionately reduce the compensation for acquired land.

(iv) The amount of compensation cannot be ascertained with mathematical accuracy. A comparable instance has to be identified having regard to the proximity from time angle as well as proximity from situation angle. For determining the market value of the land under acquisition, suitable adjustment has to be made having regard to various positive and negative factors vis-a-vis the land under acquisition which are as under:

Positive factors

Negative factors

(i) smallness of size

(i) largeness of area

(ii) proximity to a road

(ii) situation in the interior at a distance from the road

(iii) frontage on a road

(iii) narrow strip of land with very small frontage compared to depth

(iv) nearness to developed area

(iv) lower level requiring the area depressed portion to be filled up

(v) regular shape

(v) remoteness from developed locality

(vi) level vis-a-vis land under acquisition

(vi) some special disadvantageous factors which would deter a purchaser.

(vii) special value for an owner of an adjoining property to whom it may have some very special advantage

(v) For ascertaining the market value of the land, the potentiality of the acquired land should also be taken into consideration. Potentiality means capacity or possibility for changing or developing into state of actuality.

(vi) Deduction not to be done when land holders have been deprived of their holding 15 to 20 years back and have not been paid any amount.

(vii) In fixing market value of the acquired land, which is undeveloped or under-developed, the Courts have generally approved deduction of 1/3rd of the market value towards development cost except when no development is required to be made for implementation of the public purpose for which land/is acquired. (Ref. Valliyammal v. Special Tahsildar Land Acquisition, [(2011) 8 SCC 91.] paras 13, 14, 15, 16, 17, 18 and 19).

(viii) When there are several exemplars with reference to similar lands, it is the general rule that the highest of the exemplars, if it is satisfied, that it is a bona fide 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. Mehrawal Khewaji Trust (Registered), Faridkot v. State of Punjab [(2012) 5 SCC 432 : 2012 (114) AIC 268.] ).

(ix) In view of section 51-A of the Act certified copy of sale-deed is admissible in evidence, even the vendor or vendee thereof is not required to examine themselves for proving the contents thereof. This, however, would not mean that contents of the transaction as evidenced by the registered sale-deed would automatically be accepted. The Legislature advisedly has used the word ''may'. A discretion, therefore, has been conferred upon a Court to be exercised judicially, i.e., upon taking into consideration the relevant factors. Only because a document is admissible in evidence, the same by itself would not mean that the contents thereof stand proved. Having regard to the other materials brought on record, the Court may not accept the evidence contained in a deed of sale.

(Ref. Cement Corpn. Of India Ltd. v. Purya [(2004) 8 SCC 270 para 28 and 38,] ).

(x) While fixing the market value of the acquired land, the Land Acquisition Collector is required to keep in mind the following factors:--

(a) Existing geographical situation of the land.

(b) Existing use of the land.

(d) Market value of other land situated in the same locality/village/area or adjacent or very near the acquired land.

(xi) section 23(1) of the Act lays down what the Court has to take into consideration while section 24 lays down what the Court shall not take into consideration and have to be neglected. The main object of the enquiry before the Court is to determine the market value of the land acquired. The 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 out-come of hypothetical sale expressed in terms of probabilities. For ascertaining the market value of the land, the potentiality of the acquired land should also be taken into consideration. Potentiality means capacity or possibility for changing or developing into state of actuality.

(xii) The question whether a land has potential value or not, is primarily one of fact depending upon its condition, situation, user to which it is put or is reasonably capable of being put and proximity to residential, commercial or industrial areas or institutions. The existing amenities like water, electricity, possibility of their further extension, whether near about town is developing.

(xiii) In fixing market value of the acquired land, which is undeveloped or under-developed, the Courts have generally approved deduction of ⅓rd of the market value towards development cost except when no development is required to be made for implementation of the public purpose for which land is acquired. Deduction of "development cost" is the concept used to derive the "wholesale price" of a large undeveloped land with reference to the "retail price" of a small developed plot. The difference between the value of a small developed plot and the value of a large undeveloped land is the "development cost".

(Ref. Sabhia Mohammed Yusuf Abdul Hamid Mulla (dead) [2012 (95) ALR 219 (SC) : (2012) 7 SCC 595 paras 16, 17, 18, 21 and 22.]).

18. Reference may also be made to the decision of the Supreme Court in Bhule Ram v. Union of India and another, (2014) 11 SCC 307, where various factors, including the provisions of Section 23 of the Land Acquisition Act, have been emphasized to assess the market value; some play for guesswork has also been permitted. The distance from a National or State Highway has been emphasized in the said authority.

19. Here, this Court finds that clearly, the land is in the vicinity of a stadium, existing on the date of notification and close to two highways. It is high yielding land and there is not much evidence to convincingly show that the land is submerged by flood waters. So far as the exemplar relied upon by the appellant is concerned, there is no reason to infer it to be a case of sale at inflated rate. The learned Judge in the Reference Court has virtually suspected every transaction of contemporaneous sale, but those three that have supported the lowest rate. It is not the parameter by which a claim for compensation is to be judged that the lowest available rate amongst the exemplars is to be regarded as the embodiment of a genuine and truthful transaction. Rather, the large number of exemplars noticed in the connected references that show rates between Rs.100/- and Rs.200/- per square yard, would clearly exclude the abysmally poor value of Rs.29.08 per square yard accepted by the Judge. Though, it is not before this Court on facts whether the order of the Reference Court, that was upheld by their Lordships of the Supreme Court in Uttar Pradesh Avas Evam Vikas Parishad v. Ganga Saran (supra) is precisely related to an identically situate acquired land, but the decision is a safe index about the true value of the land, going by the fact that the land acquired is for the same housing scheme and all of it lies close to two public roads. It has been observed in the judgment of their Lordships of the Supreme Court in Uttar Pradesh Avas Evam Vikas Parishad v. Ganga Saran thus:

"10. It is the case of the respondent claimants that the land which was required for the purpose of housing scheme is within the municipal limits and near to residential and commercial buildings."

20. The fact that the acquired land has been acquired for the same housing scheme, makes the observation of the Supreme Court applicable for the assessment of value of the land here as well.

21. In the opinion of this Court, after considering all possible dimensions that are relevant to assess fair and just compensation, the rate of Rs.99/- per square yard would be correct assessment, that has been approved for similar land in Uttar Pradesh Avas Evam Vikas Parishad v. Ganga Saran. This inference is based on the fact that the land relates to the same scheme and more or less governed by similar exemplars, where private sale of small portions of land has varied between Rs.100/- to Rs.200/- per square yard. Moreover, the land here is valuable and located very close to two highways, a stadium and other upcoming development on the date of acquisition. It is not located very faraway from the village abadi also.

22. In the circumstances, this appeal succeeds and is allowed with costs. The impugned judgment and award passed by the Reference Court is set aside and the reference is accepted in the terms that for the acquired land, the appellant shall be entitled to compensation at the rate of Rs.99/- per square yard. The statutory entitlements, such as that to solatium, additional compensation and interest, would be worked out accordingly.

Order Date :- 6.4.2022

Anoop