Karan Singh And Ors. vs Union Of India
1994 Latest Caselaw 537 Del

JUDGMENT

Devinder Gupta, J.

(1) In this batch of 46 appeals, claim is for enhancement in the amount of compensation with respect to acquisition of appellants' property situated in village Gharauli, which was acquired for the Planned Development of Delhi pursuant to Notification dated 17.11.1980, issued under Section 4 of the Land Acquisition Act, 1894 (hereinafter called the Act) which was followed by Declaration under Section 6 of the Act on 2.9.1981.

(2) Collector, Land Acquisition, on 2.7.1983 through his Award No.18 of 1983-84 while assessing the amount of compensation payable to the claimants fixed the market value of the entire land at Rs.9,000.00 per bigha except for a patch of land which was found to be such of which earth had been removed up to 3 feet in depth, for which market value was fixed at Rs.7,000.00 per bigha and for another patch of land from which more than 3 feet in depth earth had been removed, the market value was fixed at Rs.4,000.00 per bigha. Under the preliminary notification land notified for being acquired was 2600-12 bighas but actual acquisition took place with respect to 2645-19 bighas d.ue to difference in measurement which was carried out when declaration under Section 6 of the Act was made.

(3) Feeling dissatisfied with the amount offered the claimants sought references for determination of the amount of compensation payable to them. Reference petitions came to be decided through various awards by the court of Additional District Judge, Delhi. The earliest award in point of time is dated 20.7.1989 in which the market value of three categories of land specified above was fixed at Rs.23,000.00 per bigha, Rs.21,000.00 per bigha and Rs.l9,000.00 per bigha respectively instead of Rs.9,000.00 , Rs.7,000.00 and Rs.4,000.00 per bigha as fixed by the Collector. This award made on 20.7.1989 was followed in determining the amount of compensation in all other cases except in four cases (which were decided on 20.8.1992, 21.1.1993 and 28.1.1993) in which the Additional District Judge fixed a flat rate of Rs.76,550.00 as the market value for all categories of land irrespective of its nature. Now the claimants in these appeals are praying further enhancement in the amount of compensation urging that compensation should be assessed at Rs.l,25,000.00 per bigha.

(4) The four awards in which compensation has been assessed at Rs.76,550.00 per bigha have given rise to RFAs. 185/93, 222/93, 229/93 and 513/94. In all other appeals the reference courts made award at the rate of Rs.23,000.00 per bigha for the first category and for the second and third categories it was assessed at Rs.21,000.00 and Rs.l9,000.00 per bigha respectively. We may also notice that the appeals have been preferred by the claimants for enhancement in the amount of compensation. There is no appeal or cross-objections preferred on behalf of the respondent Union of India in any case for reduction in the amount of compensation.

(5) We have heard learned counsel for the parties and gone through the records.

(6) Learned counsel for the appellants have contended that the acquired land is situated in Gharauli, which is adjacent to village Kondli, U.P. border, Noida Industrial area and D.D.A. Colony Mayur Vihar. The land being in close proximity to the Industrial area of Noida had gained much importance and was fit for being developed as residential-cum-commercial and industrial complex. The reference court fixed market rate at Rs.76,550.00 per bigha for the entire land by comparing the same to lands in village Kondli for which award had been made with reference to the comparable rates of residential plots only in NOIDA. Out of the available figures lowest rates were taken. In fact the reference court ought to have taken the highest comparable rates. After having taken the lowest rates, the reference court proceeded to make further deduction of l/3rd towards development charges which is on a higher side. Since the acquired land was surrounded with fully developed land which was having ail facilities like electricity, water, sewerage etc., therefore, nominal development charges ought to have been deducted. It was also contended that the potentiality of land included the user for residential cum industrial purpose. It was unjust for the reference court to work out the rates only on residential basis. Different rates ought to have been fixed on higher side for industrial and commercial plots. He has referred to number of documents and stressed his point that apart from the examples of rates pertaining to plots in Noida and other area, the reference court ought to have taken into consideration the award pertaining to acquisition of property in Jhilmil Tahirpur for which notification was issued on 27.7.1981 in which compensation was assessed at the rate of Rs.625.00 per sq. yard. Village Jhilmil Tahirpur is only at some distance from the acquired land and did not have any special feature and was otherwise comparable to the acquired land. Taking into consideration the evidence and taking a conservative view of the matter, Rs.250.00 per sq. yard should be the reasonable and fair market value of the acquired land. Since the claimants have laid a claim at the rate of Rs.1,25,000.00 per bigha, therefore, market value deserves to be fixed at Rs.1,25,000.00 per bigha.

(7) Learned counsel for the respondent has submitted that the land was not acquired for any specific commercial or industrial purpose but was acquired for the Planned Development of Delhi for which the reference court rightly fixed the market value considering the potentiality of the land for raising residential construction thereupon. Reference court was also justified in. taking the lowest residential rates as no body used to reside on the acquired land prior to acquisition. Acquired land was not at all developed and was not having any civil amenities. It was having pits up to and beyond the depth of 3 it. There is no evidence on record that the acquired land could be compared with the developed land at NOIDA. Noida gained importance only after that the land was acquired and later on developed on spending considerable amount. Acquired land was used only for agricultural purposes with no commercial activity being carried out thereon. In these circumstances, no interference is called for in the awards.

(8) We will be referring to the evidence which has been adduced in the R.F.A. No.185/93 or has been referred to in the awards relied upon by the reference court while fixing market value at Rs.76,550.00 per bigha. Ext. A-8, A-9 and A-10 are the copies of three lease deeds dated 17.7.1983, 2.9.1983 and 6.5.1983 pertaining to the grant of perpetual lease on behalf of the President of India in pursuance to acceptance of the bids of lessees in public auction, of plots of land situated in village Jhilmil Tahirpur. The contents of lease deeds would show that the period of lease commenced from 16.6.1982 or thereabout. In the first lease, Ext. A-8, 501.8 sq. mt. of land was given on perpetual lease at a premium of Rs.6,28,000.00 with a nominal annual lease money of Re.l.00 . Through Ext. A-9, 250.8 sq. mt. of land was given on perpetual lease at a premium of Rs.3,56,000.00 and through Ext. A-10, 501.8 sq.- metre of land was given on perpetual lease at a premium of Rs.6,25,000.00 . In addition to the abovementioned evidence the other evidence on record is with respect to the market value of land in NOIDA. Ext. A-12 is a lease deed dated 7.8.1981 of land measuring 250 sq. yard situated in Sector 12, NOIDA. In addition to the premium of Rs.33,750.00 yearly nominal lease rent has also been fixed. Ext. A-13 is another lease deed of 1983 through which a plot of land measuring 200 sq. mt. was given on perpetual lease at a premium of Rs.35,000.00 with nominal lease money.

(9) In respect to the aforementioned two sets of instances of small plots of la nd located in Jhilmil Tahirpur and Noida suffice it to say that all are post notification instances. In the instant case notification under Section 4 was issued on 17.11.1980. All transactions are subsequent to the date of notification under Section 4. In the absence of any evidence on record that the prices of the land remained static from the date of preliminary notification till the date of these transactions or the evidence that during the intervening period not only the market remained static but also there was no development in contemplation affecting the trend of prices of lands in the locality, the post notification instances reflecting. The market value in already developed area will neither be relevant pieces of evidence nor a correct guide in assessing the amount of compensation payable to claimants. In Administrator General of West Bengal Vs. Collector, Varanasi it was held that post notification transactions can be taken into account in determining the compensation under certain circumstances where it is shown that the market was stable and there was no fluctuation in the prices between the date of preliminary notification and the date of such subsequent transaction. It was observed that : "BUT this principle could be appealed to only where there is evidence to the effect 'that there was no upward surge in the prices in the interregnums. The burden of establishing this would be squarely on the party relying on such subsequent transaction."

It is a settled, position in law and as is contemplated in Section 23 of the Act that determination of the amount of compensation has to be on the crucial date of publication of notification under Section 4 of the Act. The determination has to be made, as held in Chimanlal Hargovinddas Vs. Special Land Acquisition Officer, Poona and another , on the date line of valuation 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 and it is to be assumed that the vendor is willing to sell the land at a reasonable price. In doing so by the instance method the court has to co-relate the market value reflected in the most comparable instance which provides the index of market value. Post notification instances can be taken into account only if they are very proximate, genuine and the acquisition itself has not motivated the purchaser to pay a higher price on account of the resultant improvement in development prospects. There is no evidence in all these cases that after the publication of notice on 17.11.1980 the market value as regards the prices of land in and around the locality specially in the two localities of Jhilmil Tahirpur and Noida remained static and that there was no increase due to the acquisition of land in village Gharauli. Thus, no reliance can be placed on these instances since the same are not relevant pieces of evidence and will have to be excluded from consideration.

(10) EXT. A-11 is a copy of award in Lac No.96/85 titled Avtar Singh Vs. Union of India given by the Additional District Judge Delhi. In this award compensation was assessed at Rs.625.00 per sq. yard for acquisition of land situated in village Jhilmil Tahirpur under notification issued under Section 4 of the Act on 27.7.1981 for Planned Development of Delhi. This award which relates to subsequent acquisition in village Jhilmil Tahirpur will also be not a proper and relevant guide in fixing market value in village Gharauli in earlier acquisition. 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 deducted, as held in Pal Singh Vs. Union Territory of Chandigarh (1992 5 /T 371) 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. In this case there is absolutely no evidence aliunde adduced by the appellants to show that due regard being given to all attendant facts and circumstances, it could form the basis for arriving at the market value for their acquired lands.

(11) The other evidence produced on record is a document, Ext. A-5 which is a copy of communication from the Accounts Officer, Dda informing that the avenge auction rates in respect of residential plots in Jhilmil Tahirpur Phase I and Phase Ii, in the year 1980 were Rs.408.00 per sq. metre and in 1981 they were Rs.701.00 per sq. metre whereas in 1982 they were Rs.769.00 per sq. metre. Corresponding rates of industrial plots in 1982 and 1984 were Rs.1223.96 and Rs.l,275.90 per sq. metre.

(12) EXT. A-14 is the statement of Shri B.K. Sharma, Assistant Development Manager, Noida, Sector 6, who on the basis of the file brought by him stated that the rates of residential plots in Noida in the year 1979 were in the vicinity of Rs.l20.00 per sq. yard in Sector 11 and Rs.130.00 per sq. yard in Sector 12. In the year 1980 the rates varied from Rs.150.00 to Rs.172.00 per sq. yard.

(13) These two sets of evidence will also not be helpful in determining the market value of the acquired property in the absence of any evidence as regards the comparison in the nature of facilities available as on the date of acquisition. The determination of market value as held in Administrator General's case (supra) is the prediction of an economic event, viz., the price outcome of a hypothetical sale, expressed in terms of probabilities. Prices fetched for similar land with similar advantages and potentialities under bonafide transactions of sale at or about the time of the preliminary notification are the usual and indeed the best evidence of the market value.

(14) EXT. A-17 is a copy of award No.49/1970- 71 of Collector, Land Acquisition pertaining to acquisition of property situated in Mandavali Fazalpur under notification dated 13.11.1959 fixing market value at Rs.2,000.00 per bigha. Ext. A-21 is a copy of decision in Rfa 128/82 titled as Shri 0m Parkash Vs. Union of India (Decided on 11.4.1991) by which market value of land acquired through notification under Section 4 of the Act dated 13.11.1959 in village Dhalupura was fixed at Rs.8,064.00 per bigha. These two instances also have no relevance since both pertain to the acquisition of property through notification issued more than 20 years prior to the acquisition in question. There is also no evidence of comparison of acquired land with the land in village Dhalupura and Mandavali Fazalpur.

(15) EXT. A-23 and A-24 are the two schedules of market rates of land fixed by the Ministry of Works and Housing (Land Division). In Ext. A-23 in the outlying areas of Delhi schedule market value of land for residential purposes has been fixed at Rs.40.00 per sq. yard and for commercial purpose it has been fixed at Rs.80 per sq. yard for the period from 1.7.1963 to 27.3.1966. In Ext. A-24 market rates of outlying colonies in Delhi have been fixed at Rs.4,00.00 and 800.00 per sq. mt. respectively for residential and commercial purposes for the period from 1.4.1981 to 31.3.1983. In both these documents various colonies have been mentioned but village Gharauli is not included in any of the colonies. Learned counsel for the appellants states that the outlying areas in Delhi will include village Gharauli.

(16) We are not satisfied that production of copy of schedule of rates only fixed by the Ministry of Works and Housing (Land Division) will be relevant piece of evidence for determining the market value and ultimately assessing the amount of compensation under the Act when there are well known principles for determining the amount of compensation. The well known principles are also bituced in Koyappathodi Vs. State of Kerala (AIR 1911 Sc 2027) as follows: "IT is settled law that the methods of valuation to be adopted in ascertaining the market value of the land as on the date of the notification are (i) opinion of experts (ii) the price paid within a reasonable time in bona fide transaction of the purchase or sale of the lands acquired or the lands adjacent to the lands acquired or the lands adjacent to the lands acquired and possessing similar advantages and (iii) a number of years purchase of the actual or immediately prospective profits of the lands acquired. These methods, however, do not preclude the Court from taking any other special circumstances obtained in an appropriate case into consideration. As the object being always as near as possible in an estimate of the market value in arriving at a reasonable correct market value, it may be necessary to take even two or all those matters into account inasmuch as the exact valuation is not always possible as no two lands may be the same either in respect of the situation or the extent or the potentiality nor is it possible in all cases to have reliable material from which that valuation can be accurately determined."

(17) As we noticed earlier in one set of awards by the reference court market value has been fixed for the best category land at Rs.23,000.00 considering the potentiality for constructing residential buildings but in the second set of awards market value has been fixed at Rs.76,550.00 per bigha. The entire land was acquired under the same notification for the same public purpose. It is not in dispute that in these appeals it is the first category of land which is involved.

 (18) As regards the location of the property vis-a-vis its potentiality, the Collector in his award observed that:    "THE present land being adjacent to the land of village Kondli is very much similar in fertility, nature and other factors therefore the award announced recently in village Kondli can be taken as a proper and adequate guidance in this case but the land under acquisition being much nearer to the main road and U.P. Border and Industrial complex has better chances to fetch more market value as compared to Kondli. Secondly it has good potentiality of building purposes..."  

 The reference court also accepted this topography of the area. Reference court in the four awards discarded the other evidence as discussed above except by taking into consideration the trasactions' of leases in Noida and in para 15 of the award observed .    ".....RATESof the land of the petitioners are to be taken as Rs.l35.00 per sq. yard (sic) as this land rate depict in the lease deed executed by the Noida dated 7.8.1981."  

After making a deduction of l/3rd towards development charges, the reference court held that market value of the claimants' land would be Rs.90.00 per sq. mt. or in other words Rs-76.55 per sq. yard. Even for determining the market value of land of village Kondli in award Ext. C-l same evidence as was considered in this case was taken note of which will be evident from the following passage: "15.Now the question remains as to which sale instance of Noida should be taken into consideration. PW-I Sh. B K Sharma testified that the land rates in Noida varied between Rs.l20.00 per sq. yard to Rs.l75.00 per sq mtr. This witness gave land rates of various sectors. The petitioners in this case have not been able to adduce evidence to show as to which sector is close to their land. Even otherwise the petitioner's land is on the date of notification was agricultural one, whereas the land rates of residential plots are being applied to the land of the petitioners while assessing the market value of the land of the petitioners. This is being so done because of looking at the potentiality of the land. Still it is considered expedient to take lowest rate as were prevalent of the residential plots in the year 1981. Ex. A-11 suggests the land rates at the rate of Rs.l35.00 per sq. mtr. where the date of execution of the lease deed is 07.08.1981 whereas the lease deed Ext. A-12 indicates the land rates at Rs.l75.00 per sq.mtr. The land rates of the petitioner's land are to be taken as Rs.l35.00 per sq. mtr. Of course development charges need to be deducted as plots so given by the Noida authority to lessees were developed one. How much deduction should be made towards development is answered in AiR 1992 Sc page 166 and also in the case titled Chander Versus Union of India in R.F.A. No-250/90 where in both the judgments l/3rd of the market price of the land were directed to be deducted towards development of drains, electricity and other amenities which are in fact to plan lay out for building colonies.

(19) The same reasons prevailed in this case also in arriving at the market value. The evidence taken note of in both the cases being same, this method of arriving at market value by the reference court on reference to the post notification lease rates is not in consonance with law. Market value as on 7.8.1981 could not have been made basis for determining the amount of compensation for the land which was acquired by virtue of notification dated 17.11.1980. It is only in four cases that market value was fixed at Rs.76,550.00 per bigha. The award of other cases was also tendered in evidence in this case on behalf of respondents as Ext. R-1. It was noticed that no sale transaction of village Gharauli was brought on record which might be proximate in time to the notification under Section 4 of the Act. The nearest and dependable instance of the market, value was taken as the sale transaction of village Kondli made on 14.2.1974 in which 5 bigha land was sold for Rs.30,000.00 . For the time gap of 6 years from the date of sale till date of notification appreciation @ 25% per annum (compound) was allowed, keeping in view the fast development activity going on in the vicinity. Thus, the market value of normal land in village Gharauli on 17.11.1980 was determined at Rs.23,000.00 per bigha. The court noticed that normally an appreciation @ 12% could be given but in this case there was special circumstances for allowing higher appreciation. The special circumstances which were noticed were: "IT appears that the substantial development around the land of the village Gharoli, in Noida for Industrial and residential purposes took place during the period of seventies. It was during this period that Delhi Development Authority Colony of Mayur Vihar was fully developed. Thus, in this particular case, it would just and proper to allow appreciation @ 25% p.a. (compound) over the sale consideration of Rs.6,000.00 per bigha in 1974"

(20) As compared to these awards only in four cases market value was determined almost 3 1/2 times and as noticed by us above the evidence relied upon cannot be said to be relevant and proper guide for assessing market value. Since neither any appeal has been preferred by the respondent nor any cross-objections have been filed, therefore, awards in these four cases have become final in so far as respondent is concerned. Amount of compensation, thus, cannot be reduced. Other appellants cannot be deprived of the same amount of compensation since their lands were also similarly situated in the same village and were acquired under the same notification for same public purpose.

(21) When the evidence adduced is neither relevant nor a proper guide in assessing market value, taking the broadest view of the matter, even if such an evidence is taken note of it is not possible to accept the appeals in four cases and enhance the compensation. Document Ext. A-5 is only a communication and Ext. A-14 is an abstract statement showing average rates obtained on auctioning of plots in Jhilmil Tahirpur and Noida, Even if these are taken into consideration as reflecting retail price of developed plots of land in these two already developed localities, we cannot lose sight of the fact that same price cannot be taken as reflecting the market value of plots of land in village Gharauli which was yet not developed and more particularly in the absence of any evidence that the plots of land which were sold in Jhilmil Tahirpur or in Noida were having the same and similar potentiality or were similarly situated.

(22) The submission of the counsel for the appellants that no deduction could have been made as regards development charges also has no force in the absence of any evidence that already as on the date of acquisition the property was developed or that all facilities like electricity, water and sewerage etc. were available. In Rfa 155/84 titled as Phire Ram etc. Vs. Union of India (decided on 1.8.1994) we have considered similar submissions and have held that for not making any deduction towards development charges when instances of small plots of land are produced for assessing compensation of bigger tract of land, it has to be satisfactorily shown by lading cogent evidence on record that the acquired land had facilities of road and other amenities etc. or that no expenses at all were required for carrying out development activity.

(23) Consequently the above we do not consider it to be a fit case for interference in at least in four cases in which reference court made an award at the rate of Rs.76,550.00 per bigha.

(24) In view of the above RFAs 185/93, 223/93, 229/93 and 573/93 are dismissed. All other appeals are allowed with proportionate costs. The appellants except in aforementioned four cases are held entitled to compensation to be determined on the market value of land @ Rs.76,550.00 per bigha with 12% additional amount under Section 23(1-A) of the Act on the market value from the date of notification under Section 4 of the Act till the date of award or taking over of possession whichever is earlier besides solarium at the rate of 30% under Section 23(2) of the Act. On the enhanced amount of compensation, the appellants will also be entitled to interest at the rate 9% p.a. from the date of dispossession for the first year and thereafter at the rate of 15% p.a. till the date of actual payment. Decree sheets will be drawn in each on the appellants making good the deficiency in court fee, if any, within a period of three months from today.