Kehar Singh (Deceased) Through ... vs Union Of India (Uoi)
2005 Latest Caselaw 510 Del

JUDGMENT

B.C. Patel, C.J.

1. These group of appeals are preferred under Section 54 of the Land Acquisition Act, 1894 (for short hereinafter referred to as 'the Act') against the award made by the reference court under Section 18 of the Act.

2. A notification under Section 4, 6 and 17 was published on 31-10-1980 for acquisition of vast area of land of village Jaffarpur @ Hiran Kudna. Vide award No. 11/82-83 dated 3-5-1982 the Land Acquisition Collector determined the amount of compensation at the rate of Rs. 2000/- per bigha for A block land and Rs. 1000/- per bigha for B block land. The claimants moved the application under Section 18 of the Act and the reference court awarded compensation for land at the uniform rate of Rs. 10,750/. It is against this award the present appeals are preferred under Section 54 of the Act claiming higher compensation.

3. The appellants who are the claimants in appeal No. RFA 486 of 1989, which is taken as a lead case, were having 1/3rd share in the land bearing khasra Nos. 318(4-16), 332(4-16), 333(5-17) admeasuring total area of 10 bighas and 9 biswas. The LAC in his award discussed market value. No sale transaction was recorded within the period of last five years i.e. from 1-11-1975 to 31.10.1980. It is also pointed out that the land of village Neelwal, was also acquired for the said purpose for which these lands were acquired and the villages are adjacent to each other. It is pointed out that the market value of the land of village Neelwal was determined on the basis of sale transaction of the land of adjacent village Dichaon Kalan. It is further pointed out that the land of village Jaffarpur was of inferior quality to the land of village Neelwal and Dichaon Kalan. For fixing the market value of the land of village Dichaon Kalan, sale transaction of the said village were taken into consideration. So far as the boundary is concerned, it is pointed out that the land of village Jaffarpur is towards the north of the land of village Dichaon Kalan and the boundary of these villages meet along the line. Examining the revenue record, the Land Acquisition Collector could trace two awards one of the year 1954 and the other of the 1966 for the land situated at village Jaffarpur. The award made in the year 1966 determined the amount of compensation at the rate of Rs. 700/- per bigha for Block A and Rs. 200/- per bigha for Block B. So far as the transactions in the nearby areas are concerned, from 1-11-1975 to 31-10-1980 there is some discussion in the award. The Land Acquisition Collector found out that in all for a period of given years, 339 bighas 2 biswas of land came to be transferred at the total sum of Rs. 862,000/-. The average value per bigha comes to Rs. 2542/-. Considering the different area and the amount for each year for the aforesaid period, average price per bigha is also taken out which ranges from Rs. 1726/- to Rs. 3497/-. Of course these are the sale transactions of parcels situated in the territorial limits of village Dichaon Kalan. It is also required to be noted that looking to the total sale transactions indicated in the award made by the Land Acquisition Collector, it appears that during the last five years i.e. to say from 1975 to 1980 considering the number of transactions, it can be said that village Dichaon Kalan was better developed than village Jaffarpur. In village Jaffarpur there are no sale instances and that indicates that neither there was any development nor the land was so fertile nor buyers thought to purchase the land though situated near village Dichaon Kalan.

4. It was for the claimants to substantiate the claim by leading proper evidence to show that the lands are fertile and would get better market price on account of yield of higher value. It was for the claimants to produce revenue record to show the crops cultivated and the extent of area cultivated. This document, namely, revenue record would also indicate number of crops taken in a year. Claimants could have examined other witnesses to support the version of the claimant. A person who is highly interested and whose evidence is not supported by documentary evidence should examine other independent witnesses or the expert to prove the fertility of the land, yield and income. It was more necessary when witnesses produced no material and evidence is also not satisfactory. It is also required to be noted that the land acquisition collector in discharge of his duties has made an award and has recorded certain findings such as the distance between the two villages or the parcels of land transferred and the land acquired, sale instances and the average price taken out. It is also pointed out the difference of land between village Neelwal and Dichaon Kalan and the land at village Jaffarpur. It was for the claimants to place on record necessary material to show that which villages are nearer.

5. Considering the award made in the year 1966 @ Rs. 700/- per bigha and granting 10% escalation per year in the 1980 the amount would be Rs. 2649/- per bigha. It is interesting to note that the LAC considering the five years instances from 1975 to 1980 of the land situated at village Dichaon Kalan has arrived at an average price per bigha @ Rs. 2542/-. This aspect is required to be taken into consideration as no satisfactory evidence has been lead by the claimants to establish the claim which was made before the reference court.

6. Learned counsel for the appellant submitted that the land situated in village Mundka were acquired and it is at a distance of about 1 or 1-1/2 km and therefore the price determined for the land of that village should be adopted for Jaffarpur. There is evidence of sale instance of nearby villages and on the basis of this it is submitted that village Mundka being nearer, the sale instance of transfer of land should be taken into consideration more particularly when the High Court in an appeal has determined the market value of the land of village Mundka @ Rs. 30000/- per bigha. It was submitted that there is no reason that the same benefit should not be extended. It was further submitted that at any rate village Ghevra being nearer wherein the price was determined @ Rs. 19750/- per bigha in RFA No. 793/87 dated 7-11-2002, for the land acquired vide a notification under Section 4 of the Act issued on 10-1-1980, should be considered for the land situated in village Jaffarpur.

7. Initially it was suggested on the basis of a map that village Mundka is nearer to Jaffarpur. However, no map is produced for this purpose and when the original map which was produced on record was shown, the counsel was not able to point out anything from the said map about the distance of village Mundka. On the contrary, learned counsel for the respondent pointed out that the map suggests a different village for land transactions for which the documents were placed on record by the Union of India. The appellants have lead no independent evidence to show that villages Mundaka and Jaffarpur have common boundary or between the two villages distance is about 1-1/2 kms. On the contrary, as recorded by the Land Acquisition Collector villages Neelwal and Dichaon Kalan are near.

8. It is also required to be noted that the price determined for lands at village A cannot be the basis for fixing fair market value for lands of village B or village C. When there is agricultural land, the price is required to be determined on the yield basis. No doubt the court is required to take into consideration for arriving at a conclusion about fair market price, the development which has taken place in the village, such as hospital, educational facilities, post office, Railway Station, Bus station, market, civil facilities etc. These are the aspects to be taken into consideration. A village having a market where people from nearby villages are coming and selling their commodities will have advantage but a village simplicitor where few hundreds people are residing and carrying on agricultural operations, is required to be considered in a different manner. These aspects are more important when no sale instance of the land of same village is made available. In the instant case claimants have specifically stated that there is no sale instance of village Jaffarpur. Even if there was an instance of sale of nearest past the same would have assisted in arriving at a fair market value in that particular year. But in absence of that the court will have to examine what could be the yield.

9. For the aforesaid purpose claimants examined one Sarupe, PW1 son of Shri Hardwari. It is his case in the examination in chief, that he used to grow two crops on this land. He used to earn Rs. 40,000/- to Rs. 45,000/- in a year. He has stated that village Dichaon Kalan is situated about 4 miles form the land in question while village Ghevra is at a distance of about 1 mile from the land in question. However, when he was questioned about the market rate fixed for village Ghevra lands he has shown ignorance though lands were acquired under the same notification. He was aware that the lands were acquired for Air Force. It is admitted by him that lands even in the vicinity were used only for agricultural purpose. It is admitted position that no other facilities were available. No evidence is lead about any development in the area. Thus on this admitted fact the court will have to determine the fair market value.

10. So far as distance of village Mundka is concerned, he has stated about a distance of about 1 to 1-1/2 kms from the land in question, however, except his oral testimony there is nothing on the record. The reliance was placed on map, as recorded by reference court, of village Dichaon Kalan (Ex. R.5) for the said purpose. As pointed out, map suggests something different i.e. other villages and sale instances of other villages but not of Mundka.

11. The reference court has pointed out that under the same notification other lands of the same village were acquired and the fair market value was determined at the rate of Rs. 10000/- per bigha for agricultural land on 28-4-1989 after considering various aspects. Therefore in any case it cannot be higher than that.

12. What is required to be noted is that in the cross examination witness has come out with a case that he used to harvest Jawar, Bajra and wheat, in a year. However, he is not aware at what rate he used to purchase the seeds as he used to prepare on his own. On being asked about the fertilizer, he has stated that he does not remember the rates for purchase of urea. About the irrigation he stated that the land was used to be irrigated through a canal but soon changed the version that he had his own bore well and was using that facility. We do not find anything about the expenditure such as manpower, amount paid to them, consumption of power, method of agricultural operation etc., and expenditure incurred by the said witness for agricultural operations. It is in view of this evidence we are unable to believe that the witness was earning Rs. 40,000/- to 45,000/- in a year. Again he was not sure about the expenditure incurred per bigha for cultivation. He stated that he was not in a position to produce any documentary evidence of income or even expenditure.

13. There is another witness, PW2, Rama Nand who came before the court stating that he executed two sale deeds in the year 1978 wherein the price for 1 bigha 1 biswas was determined at the rate of Rs. 3000/- per bigha. He stated that he sold 1 bigha 1 biswas to one Manju Bala and also to Nasib Kaur same area of land. In the absence of any sale deed produced on record, the oral testimony cannot be relied on. When there is documentary evidence that is required to be preferred.

14. Witness Saruge came out with the version of income of Rs. 40,000/- to Rs. 45000/- per year without giving total area being cultivated and the total amount spent for the purpose of cultivation. In absence of any evidence with regard to the expenditure incurred, this court will have to consider the evidence of Rama Nand who has said that he was taking the crop of wheat but had no record to substantiate the claim. He has further stated that he and his brothers were cultivating 150 bighas of land owned by them. He has given exact figure of harvesting five mand wheat from one bigha with the aid of canal irrigation as well as a bore well. He has come out with the case that wheat was sold at Rs. 20/- to Rs. 25/- per mand. They had to incur an expenditure of about Rs. 15/- per mand including fertilizer and irrigation. If this figures are accepted to be true then average price would be Rs. 22 per mand and for five mands one would get Rs. 110/-. Even if without any documentary evidence the oral version is accepted for the sake of argument for two crops in a year person would get per bigha in the vicinity of Rs. 220/- to 240/-. Witness Saruge has not indicated in his evidence about the total area cultivated, however, the appellant in RFA 486 of 1989 has referred in his appeal memo that claim is made for 10 bighas 9 biswas. If for 10 bighas the price earned is considered even then it would not be more than Rs. 2400/- per year. It is in this state of affairs the court has to appreciate the decision of the reference court.

15. Learned counsel submitted that in the case of Union of India v. Attar Singh and Ors. (RFA No. 163/87) decided on 7th February, 2002 a Division Bench of this court had an occasion to examine the acquisition of land situated in village Mundka for which notification under Section 4 of the Act was issued on 10-1-1980. The amount of compensation was awarded at Rs. 14,235/- per bigha. In that case there was only one instance of the sale wherein the market value was considered at the rate of Rs.30,000/- and that was with regard to 1 bigha 1 biswas phirni land for which the sale deed was executed on 6.2.1978. The Division Bench pointed out that in the absence of any other evidence in rebuttal reference court proceeded to hold fair market value of the land at Rs.30,000/- per bigha. It is against this award the appeal was preferred which was dismissed in liming.

16. So far as the acquisition of land is concerned and particularly agricultural land the court has to bear in mind that the agricultural land is required to be examined on a different footing. Even in a district town if there are agricultural lands, the market price of the same will be determined on the basis of yield and not merely because it is in a district town.

17. It is required to be noted that agricultural lands are used for the purpose of agricultural operations only or with the permission, if accorded under the Delhi Land Reforms Act for any other use. But certainly it will not be used for the purpose of development as defined in Delhi Development Act. If that is the position then the agricultural land is required to be considered as such only.

18. It is required to be noted that where large track of land is acquired certain deductions are required to be made because entire land cannot be used as certain portion is required to be kept open for use of the land. A small parcel of land cannot be equated with large track of land. In the instant case vide notification more than 300 bigha of land was sought to be acquired in village Jaffarpur @ Hiran Kudana and vide same notification land of village Neelwal was also sought to be acquired. Therefore the price cannot be compared with the sale instance of a different village and that too of a small area. While deciding RFA No. 16/1998 decided on 24th February, 2005 this court in paragraphs 10,11,12,14,15 and 16 discussed various decisions and the principle laid down by the Apex Court in this regard.

10. It is also required to be noted that the lands situated far away from the municipal limits and possibility of imposition of statutory restrictions to develop the lands for building purposes are relevant circumstances in determining the market value of the land. The Court must bear in mind that where an agricultural land is acquired which is not ordinarily put to use for the purpose of residence, the price to be determined ordinarily should be on yield basis. The land cannot be put to use other than agricultural or if it is required to be put to other use some permission is required to be taken or conversion charges are required to be paid. Such various other aspects are required to be borne in mind by the Court.

11. The Apex Court in the case of Hasanali Khanbhai & Sons and Ors. v. State of Gujarat pointed out that "However, if it is found that large extent to be valued admits of and is ripe for use of building purposes, that building lots could be laid out on the land could be a good selling proposition and that valuation on the basis of method of small layout could with justification be adopted. Then in valuing such small layout any such valuation as included in the sales comparably small sites in some area at the time of notification would be relevant in such cases. Necessary deduction for the extent of the land required for formation of the roads and other civic amenities requires to be made. In that case 50% was deducted." The Court also pointed out the decision of the Apex Court in the case of Bhagwathula Samanna v. Special Tahsildar & Land Acquisition Officer, Visakhapatnam Municipality :

"4. The facts in Bhagwathula Samanna case were that the lands were situated in already developed area and that, therefore, this Court had held that no deduction towards developmental charges could be made. The ratio therein is of little assistance. When the lands are sought to be used for building purposes, admittedly the entire land cannot be used for building purposes without providing roads, drainage, electricity and other civic amenities for which necessary deduction of 1/3rd should also be made as held in a catena of decisions of this Court."

12. In the case of Hasanali Khanbhai (supra) the Court pointed out as under in paragraph 5:-

"In this case, having considered the situation of the land being far away from the outer municipal limits though situated near about the railway line, that itself would be a factor to be taken into consideration in determining the market value. Added to that, there is a possibility to impose statutory restrictions to develop the lands for building purposes. No prudent purchaser would hazard to purchase such large extent of lands at the rates when small extents of lands are sold in plots. True that the purchasers hazarded to purchase lands in the neighbouring survey numbers and have taken grave risk. But it would be safe guide to adopt the same price offered by them. Considered from this perspective and from the totality of facts on record, we are of the view that the High Court was well justified in deducting 60% of the value and giving Rs. 4 per sq. yard."

13. The Apex Court reiterated the aforesaid principle in the case of K. Vasundara Devi v. Revenue Divisional Officer (LAO) .

14. So far as valuation of agricultural land is concerned, ordinarily the calculation must be based on the average produce per year per acre. However, if the agricultural land is situated just on the outskirts of a city the yield method only may not be appropriate because the land is nearer to developed areas and, therefore, it must get the benefit of that development. Similarly, a parcel of agricultural land situated on the highway will have to be considered in a different manner. When the land abuts on the road leading to the village will have a different value. These are the aspects to be taken into consideration while determining the fair market value of agricultural land. If the agricultural land is not having benefits just referred to hereinabove, then one will have to consider the average yield. However, if in the nearby area a parcel of land is disposed of, the same would be a guiding factor. It is also required to be borne in mind that though there is no development of land, but as the same is situated within the municipal limits and continued to remain as agricultural land would not fetch the same market price as may be determined for developed land. One will have to convert the land from agricultural land to non agricultural use. These are the aspects to be kept in mind and agricultural land which has potential value that has to be considered. The Supreme Court in the case of Land Acquisition Officer v. Male Pullamma pointed out that the acquired land was used for poultry purpose and, there was no development in the area or in the neighborhood on the date of notification. The Supreme Court has, therefore, held that the High Court was not justified in determining the market value treating the land acquired as possessing potential value.

15. If the land acquired, though agricultural land, is found to be possessed of high potentialities, consequently, for such agricultural land with building potentialities having industrial development around, the prevailing market value may not be the criterion and the potential value has to be considered to determine the market value of such land.

16. Special features, if any, are also required to be taken into consideration, such as the only parcel available in the vicinity of industrial zone or the land is fit for a particular use and price has increased or is increasing for industrial use or such other specific use must be taken into consideration. In the case of State of Maharashtra v. Digambar Bhimshankar Tandale it was held that the agricultural land though was converted for non agricultural use and situated within the municipal limits, but the land had no potential value as there was no development in the area, then determination of compensation on acreage basis was proper and not on comparative sales of small pieces of land, even if within the municipal limits did not have any potential value.

19. In view of the aforesaid the court is required to consider whether the value fixed by the reference court is just and proper as a fair market value. Union of India has accepted the decision rendered by the reference court. In view of the evidence which we have discussed hereinabove there is no case for enhancement of amount of compensation and therefore appeals are required to be dismissed leaving the parties to bear their own costs.