Sabha Rai vs Union Of India
1979 Latest Caselaw 30 Del

JUDGMENT

Avadh Behari Rohatgi, J.

(1) These are two appeals, one is by the owner Shrimati Sabharai (RFA 41 of 1976) and the other by the Union of India (RFA 100 of 1976). In both these.appeals the question relates to the amount of compensation payable to the owner of certain lands situated in village Jaitpur, en outlying village on the outskirts of Delhi.

(2) The owner's land was acquired by the Government under the Land Acquisition Act of 1894 (the Act) for public purposes of "Ash Disposal and Railway Siding Badarpur Thermal Power Project".

(3) On January 6, 1969, notification under S. 4 of the Act was issued. After the usual statutory proceedings the Land Acquisition Collector made his award (No. 26/70-71) on August 28, 1970, under S. 11 of the Act. The Collector classed the acquired lands into three separate blocks-blocks 'A', 'B' and 'C'. Block 'A' consisted of abpashi land or irrigated land. Block 'B' comprised gair abpashi Land or what is generally known as barani land which is dependent on rain for purpose of cultivation. Block 'C' included "banjar land and land covered under jheel and perpstually effected by fluvial action of river Jamuna. "FOR the three separate categories of land the Collector assessed the compensation payable to the owner in the manner following :-- 1. Block 'A" -Rs. 2775.00 per bigha. 2. Blook 'B''-Rs. 1850.00 per bigha. 3. Block 'C' -Rs. 600.00 per bigha. The claimant filed a ..petition of objection to the said award and required the matter to be referred by the Collector for the determination of civil court under S. 18 of the Act. The matter cams in du3 course before the Additional District Jadge appointed to hear and determine cases arising out of proceedings under the said Act. The Additional District Judge varied the Collector's award. and enhanced the compensation as will appear from the following table ; Block 'A'-Rs. 6500.00 per bigha Block 'B'-Rs.4450.00 perbigha. Block C'.-Rs.l7.00.00 per bigha. From this decision the claimant now appeals to this court for further eahancement The Union of India, onthe other hand, appeals for reduction of the amount awarded bythe Additional District Judge. This Judgment will govern both the appeals."

(4) At this stage it is convenient to examine the findings of the Additional District Judge. The following is a summary of his conclusions : (1) The Delhi Land Reforms Act of 1954 does not apply to the land in question because at the time the Act of 1954 came into operation, the acquired land was evacuee land and by reason of S. 192 of the land Reforms Act its provisions did not apply to the land in question. (2) That two transactions of sale in the village of Molar Bund of September 9, 1968 and September Ii, 1968 were fair tests of the market value of the land in question. The sale deed dated September 9,1968 evidenced that the land was conveyed at the iateofRs. 5208.00 per bigha. The sale deed dated September Ii, 1968 witnessed that the land was sold for Rs. 5405/41 per bigha. These two sale deeds were considered as "worthy documents" by the learned Judge for assessing the market value of the land in question at the material time. The reason he gave for this conclusion was that the village Molar Bund was contiguous to the revenue estate of Jaitpur and only. one kila of land marked off the boundaries of Jaitpur and Molar Bound. He, therefore, accepted the sale deed of Steptember Ii, 1968 as a guide to. the compensation to be awarded in the case before him. (3) The sale deeds dated September 9, 1968 and September 11 1968 were genuine documents and could safely be relied upon for assessing the market value of the lands in dispute at the material time (4) That the mutations produced in evidence did not reffect the market price and were not 'worthy of reliance. The mutation dated February 20, 1968 showing the sale of land at Rs. 2641.09 paise per bigha relied on by the Government was rejected by the Judge as a misleading guide. He rejected it for the reason that the purchaser was to obtain possession from persons actually in occupation of the land and as this was considered to be an 'uphill task' by the vendor he sold the land at a much reduced price. (5) The rental value and the produce were not the proper bases for ascertaining the market value of the land in question. (6) That the classification of the land into blocks 'A', 'B' and 'C' by the Collector was sound.

(5) Relying on the sale dated September 11, 1968, the Additional District Judge awarded compensation. He took it as the standard of value for block 'A' land. He enchanced the amount of Rs. 5405.00 by Rs. 1030.00 on account of the fact that the land Reforms Act did not apply to this land and there were no restrictions on its use and enjoyment. He thus arrived at the conclusion that for block 'A' the just compensation to award would be Rs. 6500.00 per bigha. Founding himself on this value for block 'A' he awarded Rs. 4450.00 per bigha for Block 'B' land and Rs. 1700.00 per bigha for block 'C' land.

(6) Basing himself on the sale deed dated September 11, 1968, counsel for the claimant contends that the land which was conveyed by that instrumeat was barani land because the sale deed itself says so. It is said .that the. sate, deed recites that there is no provision for irrigation of the land the cultivatiott was dependant on rains. This he says ought to be accepted as a guide.to the value of Block 'B' land and is no basis for awarding compensation for block.'A' land. There is much truth in what counsel says. A perusal of the sale deed dated September Ii, 1968 unequivocally shows that the land which was the subject of sale was barani land, Barani Land, as we all know, is land depgnding on rain. It is unirrigated land. The term is used in contradistiontion to Chahi Zamin i.e. land irrigated from wells : (see Blatts' Dictionary of Urdu, Classical Hindi and English, page 120, 420).

(7) The Collector's own classification shows that barani land is inferior to abpashi land, Abpashi land he rated at the highest. The land which did not have the facility of irrigation he classed in block 'B' and called it'gair abpashi' which means barani land. It cannot therefore be denied that the sale deed dated September 11, 1968 is a conveyance of barani land and ought to be taken as a guide for awarding compensation for that kind of land which in fact was the subject of sale. So the dispossessed owner is entitled to a higher compensation for abpashi land. His irrigated land is to be estimated more highly. This alters the perspecitive. The landscape is transformed. What was previously class 'A' land has now become class 'B' land.

(8) How is then compensation for abpashi land to be determined ? The land Acquisition Judge has given no answer to this question. In fact he was misled into thinking that the sale deed dated September 11, 1968 was for sale of abpashi land. This is the main source of error in his judgment. For this I will not blame the judge. No one pointed out this fact to him. No one brought it to his notice. The result is there has been a miscarriage of justice in this case

(9) Now compensation for abpashi land can be determined without much difficulty. The Collector in his award has observed that "the ratio of valuation between abpashi and barani land is 12: 8". If this is the ratio of valuation between block 'A' and block 'B' lands we can easily find out the compensation payable for block 'A.' land because we know the market value of block 'B' land which is Rs. 5405.00 per bigha. Applying the Collector's own formula the market value of block 'A' lands will be Rs. 8UOO.00 per bigha. Over this amount of Rs. 8000.00 per bigha the claimant claims a further enhaecement because Delhi Land Reforms Act did not apply to her land. As I have said the finding about the applicability of the Land Reforms Act by the Additional District Judge is in favor of the claimant. He allowed an increase of Rs. 1000.00 per bigha on the land in question because of this. The Land Reforms Act creates a tenure which is hedged by restrictions from all sides. The claimant's land was not subject to the Act. She had unrestricted rights in her land regarding sale. mortgage, user, enjoyment etc. (see sections 14, 11, 23 26 31, 33, 34, 35, 40, 57, 65, 81 of the Delhi Land Reforms Act.)

(10) From the sale deed dated September 11, 1968 it appears that the land sold was situated in village Molar Bund and the Delhi Land Reforms Act applied to it. Therefore, if abpashi land in Molar Bund can be sold at Rs. 8000.00 per bigha, as is the inevitable conclusion of the above reasoning, one can reasonably conclude that abpashi land in village jaitpur could easily fetch in open market price of Rs. 9000.00 per bigha, adding Rs. 1000.00 to the " figure of Rs. 8000.00 for the reason that the Land Reforms Act did not apply to it. This, in my opinion, is just compensation for abpashi falling within block 'A' of the Collector.

(11) So far as block 'B' land is concerned we have the specific sale made on September Ii, 1968 itself which is determinative of the market value of block 'B' land. On the consideration of Rs. 5405.00 another sum of Rs. 1045.00 has to be added because the land was free from the constraints of the land Reforms Act. This would bring the compensation for block 'B" land at Rs. 6450.00 per bigha.

(12) Coming to block 'C' lands the question arises what increase should .be allowed in compensation for this inferior type of land. There is no doubt that this land is much depressed in its intrinsic worth, banjar as it is and perpetually affected by fluvial action of Jamuna, as the Collector said in his award. His classification of land was accepted by the judge. Nothing has been brought on the record to show that the classification which the Collector made "according to potentiality and physical condition at the spot as the result ^ of the spot inspection" is unsound in any manner. The Judge raised the compensation for this class of land from Rs. 600.00 to Rs. 1700.00 . This means that he enhanced it by Rs. 1100.00 because he had correspondingly increased compensation for block 'A' and 'B' lands. I myself have raised the compensation for lands in blocks 'A' and 'B'. I therefore think that fair and just compensation for block 'C' land would be Rs. 2500.00 per bigha, keeping it in conformity with what I have awarded for superior land.

(13) Two contentions of claimant's counsel may be briefly noticed. He referred to two pieces of evidence and claimed higher enhancement on that footing. A judgment of Mr. F.S. Gill, Additional District Judge (as he then was) dated December 10, 1968 was adduced in evidence to show the market price of the land in question. The learned judge awarded compensation at the rate of Rs.7560.00 for the land acquired in village Ali in respect of which notification under s. 4 was issued on November 10, 1960.00 . In my opinion, this is not a typical instance of the prevailing price at the relevant time, that is, on January 6, 1969 when notification under s. 4 was issued in the present case. Apart from the distance of time, which is nearly nine years between the two notifications, the land in that case occupied a far advantagous position, situated as it was on the main Delhi-Mathura Road amidst a locality of commercial and industrial operations.

(14) The other instance produced in evidence was regarding the sale of a plot of 3CO square yards for Rs. 5600.00 on February 22, 1970 in the village of Ismailpur. This sale was in an apprved colony in Haryana State outside Delhi. Where it is acquisition of undeveloped lands as in this case the court has to assess the market value of the lands in their then state. Further possibilities should not be considered as realised possibilities, as the Privy Counsel warned us in Vyricherala Naravana Gajapaliraju v. The Revenue Divisional Officer, Vizagapatan, Air 1939 Privy Council 98. It is to be remembered that further expenditure and trouble have to be incurred to make the land acquire the status of a developed and valuable land. The element of speculation in such adventures is also to be borne in mind. Therefore, this example is not illustrative of the market value of the land in question.

(15) Mr. Sethi on behalf of the Union of India has raised three principal contentions against any further enhancement. In fact he has pleaded for a reduction in the compensation awarded by the Judge and that in fact is the burden of the Union's appeal in this case.

(16) In the first place counsel argued that the Delhi Land Reforms Act was applicable to the land in question and the judge was in error in holding to the contrary. What happened was this. The Union of India in its written statement pleaded that the provisions of land Reforms Act were applicable to the land in question and this depressed its market value. The Judge framed an issue on this. When the question was being argued before him counsel for the claimant argued that the entire acquired land of village jaitpur was formerly evacuee property and this was so even at the time the notification under s. 4 was published. This stand of the claimant's counsel was not contested by the Union of India before the Judge. He, therefore, held that the land in question was evacuee property at the time of notification under s. 4 as was the undisputed position before him. He concluded that the Delhi Land Reforms Act did not apply to this land and the Land could be used even for a purpose other than cultivation. He, therefore, accorded 'a better and advantageous position' to the claimant's land and gave due weight to this factor in estimatting the market value of the land in question.

(17) Counsel for the Union of India says that this concession recorded by the judge is against facts as from the record it nowhere appears that the counsel made any such concession. I am afraid I cannot accept this argument. Even assuming that no concession was made the burden of the issue lay on the Government. Whether the land acquired was governed by the Delhi Land Reforms Act was for the Government to show. The Delhi Land Reforms Act will apply only if s. 1(2) and the opening part of s. 192 of that Act do not apply. The Land Reforms Act is a restrictive enactment. It curtails the rights of the owner. The onus lies on those who contend that the claimant did not enjoy full ownership and had only limited rights in the land. It is not for the owner to show that she enjoyed limited rights. Those who will fail if the issue is not proved have to discharge the burden of the plea raised by them. I would, therefore, affirm the finding of the judge on this issue and held that to the acquired land Delhi Land Reforms Act did not apply.

(18) Secondly, counsel vigorously contended that the sale deed dated September, 11,1968 was inadmissible in evidence to prove the nature of the land which it conveyed. Frankly speaking, this objection is incomprehensible to me. The mind refuses to grasp it. If the sale deed dated September Ii, 1968 is to be taken as a guide to the value of the land one has to see what is that kind of land which the purchaser purchased for the price named in the deed. The court has to compare the prices realised on sales of land in the neighborhood, having regard to the special advantages of, or drawbacks to, their respective situations and the nature and quality of the land. The intrinsic quality of the land and every intrinsic circumstance must be taken into consideration : See Vyricherla Narayana Gajapatiraju's case (supra). It is the duty of the valuer to take into consideration every intrinsic and every intrinsic circumstance which tends to push the value up or down just because it is relevent to the valuation.

(19) The measure of value of the land is the market value. The prices paid for comparable property in the neighborhood are the usal evidence as to the market value. ' Comparable means substantially similar. But in the comparative method of assessment which we employ we do not compare the dissimilars. The price paid for barani land is no standard of value for well irrigated land. The quality and nature of land must enter every system of valuation. A true valuation requires both computation and judgment.

(20) Agricultural land, with which we are concerned in this case, may be fertile or infertile, cultivated or neglected, with or without an adequate water supply, it may be no more than swampy land. It may be a grazing ground. It may be liable to flooding or may be otherwise protected from the hazards of nature. A willing purchaser will not pay the same price for barani land as he would be prepared to pay for abpashi land. If the sale deed dated September Ii, 1968 is to be accepted as a guide we must see how reliable the guide is. No one will be prepared to follow a guide blindfolded. The guide may be untrust worthy, the guide may mislead. Therefore it necessarily follows that the sale transaction if it is illustrative of the market value must be examined with care to see the nature of the subject-matter which it conveys. All elements of valuethat inhere in a property should b3 considered. All restrictions on user and enjoyment must be taken into account.

(21) Counsel referred me to Kumuda Kumariv. Dilsock Roy , Brojo Mohanv. Goya Prasad Air 1926 Calcutta 948, andBhogol Paswan v.Bibi Nahihan in this connection. It is not necessary to discuss these authorities. The proposition is self-evident. It is exiomatic that the subject-matter of the sale must be scrutinized in order to see what price the purchaser paid and for what kind of land.

(22) Thirdly, counsel submitted that the mutation showing a sale for the price of Rs. 2641.00 per bigha on February 20, 1968 in village Jaitpur is a fair guide to the compansation which ought to be awarded in this case. Nothing can be better evidence than the price paid for comparable sales in the vicinity at or about the material time. The matations produced in evidence were rejected both by the Collector and the Court in this case. The prices paid for comparable property in the neighborhood are the best evidence of the market valve and the market value is a time-honoured test.

(23) For these reasons the claimant's appeal (RFA 41 of 1976) is allowed. She will be entitled to an enhancements of Rs. 2000.00 per bigha on her land in block (B) and Rs. 800.00 per bigha for her block (C) land, together with 15 per cent solarium and 6 per cent interest per annum on the enhanced compensation from the date of dispossession till the date of payment will also get proportionate costs.

(24) As the owner has succeeded, the appeal of the Union of India (RFA 100 of 1976) fail and is dismissed leaving the parties to bear their own costs.