Delhi High Court
Bhule Ram vs Union Of India & Ors. on 3 June, 2010
Author: Hima Kohli
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ LA.A No.173 of 2007
with
+LA.A. Nos. 164/2007, 165/2007, 166/2007,
167/2007, 168/2007, 169/2007, 170/2007,
172/2007, 175/2007, 177/2007, 178/2007,
179/2007, 180/2007, 181/2007, 182/2007,
183/2007, 184/2007, 186/2007, 187/2007,
189/2007, 190/2007, 192/2007, 193/2007,
200/2007, 203/2007, 204/2007, 205/2007,
206/2007, 207/2007, 209/2007, 210/2007,
211/2007, 213/2007, 224/2007, 233/2007,
272/2007, 278/2007, 281/2007, 294/2007,
375/2007, 1125/2008, 68/2010 and 47/2010.
Reserved on : 09.03.2010
Pronounced on: 03.06.2010
IN THE MATTER OF :
BHULE RAM ..... Appellant in LAA 173/07
MEENU GULATI ..... Appellant in LAA 164/07
RAMESHWARI DEVI(DECD.)THR' LRS. ..... Appellants in LAA 165/07
SURESH KUMAR ..... Appellant in LAA 166/07
VIRENDER KUMAR & ORS. ..... Appellants in LAA 167/07
RAMESH KUMAR & ANR. ..... Appellants in LAA 168/07
RAJ KUMARI ..... Appellant in LAA 169/07
MAHENDER SINGH ..... Appellant in LAA 170/07
SHARDA RAM ..... Appellant in LAA 172/07
BISHAMBAR DAYAL AND ORS. ..... Appellants in LAA 175/07
AAMIR SAAD FAROOQI ..... Appellant in LAA 177/07
ZAKIA FAROOQI ..... Appellant in LAA 178/07
MASTER ROHIT ..... Appellant in LAA 179/07
BHIM SINGH ..... Appellant in LAA 180/07
PARASRAM(DECD) THR' LRS. ..... Appellants in LAA 181/07
RAJESH ..... Appellant in LAA 182/07
RICHPAL(DECD.)THR' LRS. ..... Appellants in LAA 183/07
MASTER SACHIN ..... Appellant in LAA 184/07
BHIM SINGH ..... Appellant in LAA 186/07
BHULE AND ORS. ..... Appellants in LAA 187/07
MAHENDER SINGH AND ORS. ..... Appellants in LAA 189/07
GODHU(DECD.)THR' LRS. ..... Appellants in LAA 190/07
CHANDRU AND ORS. ..... Appellants in LAA 192/07
AMI LAL AND ORS. ..... Appellants in LAA 193/07
ASARFI DEVI ..... Appellant in LAA 200/07
SHEORAM ..... Appellant in LAA 203/07
SIRI RAM(DECD.)THR'LRS. & ORS. ..... Appellants in LAA 204/07
DHANNI RAM(DECD.)THR' LRS.& ORS. ..... Appellants in LAA 205/07
RAM KISHAN AND ORS. ..... Appellants in LAA 206/07
KARAN SINGH AND ORS. ..... Appellants in LAA 207/07
LA.A.No.173/2007 & batch matters Page 1 of 35
DHUM SINGH/DHARAM SINGH AND ORS. ..... Appellants in LAA 209/07
ARJUN SINGH ..... Appellant in LAA 210/07
SURINDER SINGH ..... Appellant in LAA 211/07
O.P.GUPTA ..... Appellant in LAA 213/07
SATISH KUMAR ..... Appellant in LAA 224/07
PURAN MAL BANSAL ..... Appellant in LAA 233/07
HARI CHAND ..... Appellant in LAA 272/07
MOOL CHAND AND ORS. ..... Appellants in LAA 278/07
SHRI CHANDER @ CHANDU ..... Appellant in LAA 281/07
LAXMAN SINGH(DECD)THR'LR & ORS. ..... Appellants in LAA 294/07
SHRI KURE ..... Appellant in LAA 375/07
PARVEEN AKHTAR ..... Appellant in LAA 1125/08
MANO DEVI AND ANR. ..... Appellants in LAA 68/2010
KHEM CHAND(DECD)THR'LR ..... Appellant in LAA 47/2010
Through Mr. Deepak Khosla, Advocate for the
appellants in LAA 164/2007, 165/2007,
166/2007, 167/2007, 168/2007, 169/2007,
170/2007, 172/2007, 173/2007, 175/2007,
177/2007, 178/2007, 179/2007, 180/2007,
181/2007, 182/2007, 183/2007, 184/2007,
190/2007, 192/2007, 193/2007, 200/2007,
210/2007, 211/2007, 213/2007, 224/2007,
233/2007, 272/2007, 278/2007, 281/2007,
294/2007, 375/2007, 1125/2008, 68/2010 and
47/2010.
Mr. Om Prakash, Advocate for the appellants in
LAA 186/2007, 187/2007, 189/2007,
203/2007, 204/2007, 205/2007, 206/2007,
207/2007 and 209/2007.
versus
UNION OF INDIA & ORS. ..... Respondents
Through Mr. Sanjay Poddar, Advocate with
Mr.Ramesh Ray, Advocate for the
respondent/Union of India.
Mr. S.K.Taneja, Sr. Advocate with
Mr. Puneet Taneja and Mohd. Asgar Ali,
Advocates for respondent/NTPC.
CORAM
* HON'BLE MS.JUSTICE HIMA KOHLI
LA.A.No.173/2007 & batch matters Page 2 of 35
1. Whether Reporters of Local papers may
be allowed to see the Judgment? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be Yes
reported in the Digest?
HIMA KOHLI, J.
1. This common judgment shall dispose of the appeals filed by the
appellants under Section 54 of the Land Acquisition Act, 1894 (hereinafter
referred to as `the Act'), challenging the fixation of market value of the
land acquired by the Land Acquisition Collector(LAC) situated in village Aali,
pursuant to an Award No.4/1998-99 pronounced on 23.2.1999, after
issuance of Notification under Section 4 and 17(1) of the Act on 31.10.1996,
which ripened in a Declaration under Section 6 of the Act, issued on
26.2.1997. The total land acquired by the above Award measures 996
bighas and 8 biswas.
2. With the consent of the parties, LA.A No.173 of 2007 is being
treated as the lead case. While learned counsel for the appellants,
Mr.Deepak Khosla, addressed arguments on behalf of all the appellants,
respondent/UOI was represented by Mr.Sanjay Poddar, Advocate, and
Mr.S.K. Taneja, Sr. Advocate addressed arguments on behalf of
respondent/NTPC.
3. The purpose of acquiring the land was for Planned Development
of Delhi, namely, for construction of Ash Pond by respondent/NTPC. Under
the Award No.4/1998-99, the market value of the land was fixed by Land
Acquisition Collector at Rs.1,94,088/- per bigha, based on the minimum rate
fixed by the Delhi Government for agricultural land, apart from solatium and
other statutory benefits. While assessing the market value of the land in
question on 30.10.1996, the LAC observed that there was no previous award
in the preceding year, which could be referred to or taken into consideration.
He declined to take into consideration two sale deeds of land measuring 1
bigha each, valued at Rs.4,20,000/-, executed in February, 1996 and relied
upon by the claimants, on the ground that while the sale deeds were only for
1 bigha each, the acquired land was 1000 times more than that and there
was a certain fall in the price when the land is taken in bulk, instead of
smaller plots. Instead, the LAC relied on the policy of the Delhi Government
dated 25.7.1997 which had fixed the corresponding appreciation of land @
11.5% p.a. as market value so fixed on 30.5.1990, which was Rs.4,65,000/-
per acre. Taking into consideration, the said minimum rate fixed under the
aforesaid policy as the best factor to determine the market value, the LAC
fixed the market value of the land @ Rs.1,94,088/- per bigha, as payable to
the expropriated land owners.
4. Aggrieved by the said determination of market value of the land,
the appellants filed a reference petition before the learned Additional District
Judge under Section 18 of the Act. Vide judgment and order dated
23.08.2007, the learned Additional District Judge fixed the market value of
the acquired land at Rs.1,96,940/- per bigha, apart from granting solatium
and other statutory benefits, in terms of the judgment of the Supreme Court
in the case of Sunder Vs. UOI reported as DLT 2001 (SC) 569. The said
rate of the land was again determined by the learned Additional District
Judge on the basis of the minimum rate fixed by the Government for
agricultural land. But the enhancement in the market value of the land from
Rs.1,94,088/- per bigha to Rs.1,96,940/- per bigha took place on account of
an error of calculation detected in the assessment made by the LAC,
resulting in a difference of Rs.2,852/- per bigha. Dis-satisfied by the
judgment and order of the Reference Court, the appellants have filed the
present appeals praying inter alia for enhancement of the compensation
payable for the acquired land, by fixing the same as Rs.5,00,000/- per bigha
(i.e., @ Rs.500/- per sq.yd. or @ Rs.24,00,000/- per acre), besides
statutory benefits, including solatium and interest etc.
5. Counsel for the appellants assailed the impugned judgment and
submitted that the Reference Court erred in discarding the two sale deeds
pertaining to land situated in the same village, which were duly proved on
record and were exhibited as Ex.P-1 & P-2. Ex.P-1 is a sale deed dated
28.2.1996 in respect of khasra No.785 measuring 1 bigha, sold for a
consideration of Rs.4,90,000/-. Ex.P-2 is a sale deed dated 23.2.1996 in
respect of khasra No.815/2 measuring 1 bigha, sold for a consideration of
Rs.4,20,000/-. He stated that the vendors and the vendees of the sale
deeds were duly examined in the Reference Court and there was no
justification for discarding the said documents only for the reason that the
sale consideration was paid in cash and when received by the vendors, was
not deposited in the bank. He asserted that the sale transactions, subject
matter of both the sale deeds were bona fide and were between a willing
purchaser and a willing seller and that requisite mutation was also
sanctioned pursuant to the sale deeds. It was further submitted that the
land subject matter of the two sale deeds was also acquired under the
instant notification and the instant award and the purchasers of the land
under the two sale deeds were claimants before the Reference Court and
appellants before this Court, in separate appeals, registered as LA.A. No.
210/2007 and LA.A. No. 211/2007.
6. Mr.Khosla submitted that in case of compulsory acquisition, the
sale of similar land in the very same locality is the best evidence and a land
owner is entitled to base his claim on the highest value fetched by a sale
transaction of similar land in the same locality. It was also stated that the
two sale deeds were executed prior to the issuance of the preliminary
notification and were the best evidence available. Thus, according to him,
there was no reason for the LAC and the Reference Court to have ignored
the two sale deeds in question, particularly when the UOI did not produce
any other sale transaction of a larger plot in village Aali during the relevant
period and nor did the Revenue Authorities have in their power and
possession, any other documentary evidence. In support of the said
submission, he relied on the following judgments:-
(i) Sri Rani M.Vijayalakshmamma Rao Bahadur, Ranee
of Vuyyur Vs. The Collector of Madras 1969 Madras
Law Journal 45 (para 2)
(ii) Union of India Vs. Nand Kishore and others AIR
1982 DELHI 452(DB)
(iii) Mani Ram Sharma and etc. vs. Union of India
AIR 1986 Delhi 149(DB)
(iv) Spl.Tehsildar Land Acquisition, Vishakapatnam Vs.
Smt. A.Mangala Gowri AIR 1992 SC 666 (headnote A)
(v) Land Acquisition Officer Revenue Divisional Officer,
Chittor Vs. L.Kamalamma (Smt) Dead by LRs and
others (1998) 2 SCC 385 (headnote b para 6)
7. It was further canvassed by the counsel for the appellants that
the mere distance of 3 Kms. between village Jasola and village Aali itself is
not relevant as both the lands are in the same vicinity, and therefore the
determination of the market value of the land in village Aali could be based
on the prices of the land situated in village Jasola. On this aspect, he
referred to the decision of the Supreme Court in the case of Thakarsibhai
Devjibhai and others Vs. Executive Engineer, Gujarat and another reported
as AIR 2001 SC 2424. He also relied on the topography of the land as
reflected from the Eicher Map placed on the record and on the deposition of
PW-1, Sh.Ashok Kumar, the Halqa Patwari of village Aali, who had stated
that the nature of land in village Jasola and village Aali were similar. It was
submitted that the land in village Aali was fairly developed, as the outlet of
M/s Haldiram and the NTPC colony existed in the area and the said colony
had the facilities of electricity, water, roads etc. Further, the land of village
Aali is surrounded by Mohan Co-operative Society, Indraprastha Apollo
Hospital, and that Jasola Sports Complex and Jasola Vihar are in close
vicinity of the land in question. It was also urged that in a batch of appeals
pertaining to village Jasola, lead matter being, RFA No.114/98, S.S.
Aggarwal & Ors. vs. UOI decided on 21.2.2003, the Division Bench had fixed
the market value of the land in the year 1995 @ Rs.7,390/- per sq.yd. (i.e.,
Rs.74,00,000/- per bigha) and considering the fact that village Aali and
village Jasola are both situated on Mathura Road which is an arterial road
leading from Ashram Chowk to Badarpur border and that village Aali is
situated only a little further away from village Jasola, the value of the
acquired land could not be as low, as determined by the courts below.
8. Per contra, counsel for the respondent/UOI supported the
impugned judgment and submitted that the Reference Court had rightly
discarded the two sale deeds(Ex.P-1 & Ex.P-2), as they did not reflect the
representative price for fixing the price of a large chunk of land. He further
submitted that the sale transactions were not bonafide for the reason that
the entire transaction was in cash and the sale deeds were executed more
than three years after issuance of the preliminary notification. Support was
sought to be drawn from the judgment of the Supreme Court in the case of
Land Acquisition Officer vs. Nookala Rajamallu reported as (2003) 12 SCC
334 to urge that the conditions required to be met in order to adopt the
price reflected in the Sale Deeds, as laid down in the aforesaid judgment,
were not fulfilled. In response to the argument of the counsel for the
appellants that reliance could have been placed on the price of land fixed for
village Jasola, counsel for the respondent/UOI submitted that no comparison
could have been drawn with village Jasola for the reason that the criteria for
determining the value of the land is not "contiguity of the land", but
"potentiality of the land" and that value of the land in village Aali could not
be compared with village Jasola merely because it was situated some three
kilometers away. He argued that the testimony of PW-1 had to be discarded
as he failed to produce any document to establish that the nature, use,
potentiality and advantages of the land in village Aali could be held
comparable to the land situated in village Jasola.
9. Mr.Poddar denied that the land in village Aali was developed, or
situated on an arterial road, i.e., Mathura Road. Rather, reference was
made to the same Eicher map, to submit that the acquired land was situated
near the Agra canal, and was at least 3 kilometers away from the main road,
that it did not have any infrastructure by way of road, water, electricity or
sewage and as was apparent from the two sale deeds produced by the
appellants, the acquired land was agricultural in nature. He also referred to
a decision in the case of Union of India Vs. Zila Singh reported as (2003)
10 SCC 167 and in the case of Land Acquisition Officer Vs. Nookala
Rajamallu reported as (2003) 12 SCC 334 and urged that a small piece of
land cannot be compared with a large tract of acquired land. To substantiate
his submission that there could be no comparison between the land situated
in village Aali and village Jasola and that the appellants had failed to prove
that the situation and potentiality of land in both the villages is the same, he
relied on the following judgments:
(i) Baldev Singh and others Vs. State of Punjab through
Collector (1996) 10 SCC 37 (para 2)
(ii) Satpal & Ors. Vs. Union of India JT 1997 (8) SC
213 (para 4 to 6)
(iii) Kanwar Singh Vs. Union of India (1998) 8 SCC
136 (potentiality of land)
(iv) Land Acquisition Officer Vs. Nookala Rajamallu
(2003) 12 SCC 334.
(v) Raj Devi Vs. UOI (2007) 145 DLT 438
(vi) General Manager, ONGC Ltd. Vs. Rameshbhai
Jivanbhai Patel and another (2008) 14 SCC 745 (para
10)
10. Finally, counsel for the respondent/UOI pointed out that there
exists another material evidence, by way of a decision of the Division Bench
of this Court dated 30.11.2007 in a batch of matters, lead matter being
LA.A.No.92/2007, entitled "Nirmal Vs. UOI", which relates to land acquired
in the same village, for the same public purpose, and covered under
notification dated 16.10.1992, and can be taken into consideration for
determining the market value of the land in village Aali. He also submitted
that after discussing the very same evidence, the Division Bench had
discarded the two sale deeds (Ex.P-1 and P-2) and held that the
appellants/landowners therein were entitled to compensation @
Rs.6,51,000/- per acre, with proportionate statutory benefits.
11. Counsel for the respondent No.2/NTPC adopted the arguments
addressed by the counsel for the respondent No.1/UOI, and went on to add
that in the impugned judgment, mention was made of order dated
21.3.2007 in LAC No.4/06, entitled "Shafiq-ur-Rehman Vs. UOI", pertaining
to the same award, in which case it was observed that 1 bigha of acquired
land was purchased by the petitioner therein/Shafiq-ur-Rehman for a
consideration of Rs.1 lac by virtue of a sale deed dated 18.12.2005
executed 10 months' prior to the date of notification issued under Section 4,
which showed that the market value of the land was much less than the
value assessed by the LAC at Rs.1,94,088/- per bigha. After extracting the
aforesaid observations made in LAC No.4/06, the Reference Court observed
in the impugned order that the sale deed in question in respect of 1 bigha of
land in village Aali reflected that the prevalent market value of the acquired
land was much less than what was mentioned in the sale deeds relied upon
by the appellants. It was contended by the counsel for the respondent
No.2/NTPC that the findings of the Reference Court as above have not been
assailed by the appellants in the present appeals and hence they are
deemed to be accepted as correct.
12. In rebuttal, counsel for the appellants contended that in the
case of Nirmal(supra) the Division Bench of this Court did not deal with the
two sale deeds in question and made no comments in respect thereof and
hence the assumption of the counsel for the respondent/UOI that the two
sale deeds were discarded, is misplaced. He strenuously urged that the
appellants having adduced evidence by producing sale deeds, had
discharged the initial onus placed on them to prove the issues framed by the
Reference Court and thereafter, the onus shifted to the respondents, which
they had failed to discharge, as they did not place on record any evidence to
establish the correct price of the acquired land. With respect to the
allegation of the respondent/UOI that the two sale deeds were not bonafide,
it was stated by the counsel for the appellants that no material was brought
on record by the respondent/UOI to cast any doubt on the sale deeds.
13. It was further stated on behalf of the appellants that it was not
as if there were frequent acquisitions of land in village Aali and hence the
question of creating or fabricating evidence did not arise. In support of the
argument that merely because the two sale deeds in question were too close
to the date of issuance of notification was itself not sufficient to reject the
said evidence, reference was made to a judgment of the Supreme Court in
the case of Mehta Ravindrarai Ajitrai(deceased by L.Rs) and others Vs. State
of Gujarat reported as AIR 1989 SC 2051. It was further submitted that
fixation of compensation based on mis-declared values in respect of
transactions to which the claimants are not a party, cannot bind them.
Reliance was placed on an order dated 17.2.2009 passed by a Division
Bench in WP(C) No.2109/08 entitled "Ajay Kumar Vs. Govt of NCT of
Delhi", to rebut the argument of the respondents that the appellants could
not claim the price as fixed for the land situated in village Jasola. Counsel
for the appellants stated that as the development was taking place in a
phased manner in the area, expansion was being slowly undertaken towards
the main Mathura road and that the future potential of the land had to be a
matter of consideration while determining the market value of the land in
question. He referred to a decision of the Supreme Court in the case of P.
Ram Reddy & Anr. Vs. Land Acquisition Officer, Hyderabad Urban
Development Authority, Hyderabad and Ors. reported as (1995) 2 SCC 305
and of this Court in the case of Mani Ram Sharma and etc. Vs. Union of India
reported as AIR 1986 Delhi 149, to support the above plea.
14. With respect to the submission made by the counsel for the
respondent No.2/NTPC that order dated 21.3.2007 passed by the Reference
Court in LAC No.4/06, entitled "Shafiq-ur-Rehman vs. UOI", was of
relevance, counsel for the appellants stated that the rate shown in the sale
deed in question was far less than the price fixed for agricultural land in the
policy of the Delhi Government dated 25.7.1997 which indicated the
minimum price fixed for agricultural land in Delhi. He stated that taking into
consideration the policy of the Delhi Government, the LAC had determined
the market value of the land in question at Rs.1,94,088/- per bigha at a
later date and hence the sale deed dated 18.12.1995 referred to in the case
of Shafiq-ur-Rehman, ought to be treated as a case of under valuation. In
support of the aforesaid submission, he relied on a judgment of the Division
Bench of this court dated 21.02.2003 in RFA No.114/1998 entitled "S.S.
Aggarwal Vs. UOI". Reliance was also sought to be placed on a recent
decision of the Supreme Court in the case of Subh Ram & Ors. Vs. Haryana
State & Anr. reported as 2010 I AD (SC) 619, to state that the aforesaid
sale deed dated 18.12.1995 could not have been considered as the LAC had
himself assessed the market value of the land at Rs.194 per.sq.yard, which
after necessary correction was carried out by the Reference Court, came to a
figure of Rs.196 per sq.yard.
15. In his sur-rejoinder, counsel for the respondent No.1/UOI stated
that it is apparent from a perusal of the impugned judgment, that the
Reference Court had only discussed the sale deed dated 18.12.1995, but
had not made it the basis for assessing the market value of the acquired
land. On the issue of under valuation, he sought to rely on a decision of the
Supreme Court in the case of Lal Chand Vs. Union of India & Anr. reported
as 2009 11 Scale 627(para 3) wherein the evidentiary value of
undervalued sale deeds in determining the market value was discussed.
16. I have heard the counsels for the parties and have carefully
considered their respective submissions, besides the judgments relied upon
by both the sides, in the light of the findings returned by the Reference
Court.
17. As much emphasis has been laid by the counsel for the
appellants on the two sale deeds (Ex.P1 and P2) pertaining to the land
situated in village Aali itself, as being important pieces of evidence for
assessing the market value of the acquired land, the evidentiary value of
such documents requires examination. The law mandates that when the
State compulsorily deprives a person of his land for public purpose, by
invoking the provisions of the Land Acquisition Act, he must be paid
compensation in accordance with law, i.e., he must be paid the true market
value of the acquired land. It has been held in a catena of decisions, that
the market value as postulated in Section 23(1) of the Act, is deemed to be
the just and fair compensation for the acquired land and that the words
"market value" would be the price of the land prevailing on the date of
publication of the preliminary Notification under Section 4(1) of the Act. The
acid test for determining the market value of the land is the price, which a
willing vendor might reasonably expect to obtain from a willing purchaser.
In determining the market value, the factors enumerated in Section 23 are
to be taken into consideration, and those set out in Section 24 are to be
excluded. For ascertaining such a market value, the Court can no doubt rely
upon such sale transactions, which would offer a reasonable basis to fix the
price, for which purpose, sale transaction relating to smaller parcel of land
for the purpose of assessing the market value in respect of a large tract of
land can also be taken into consideration after making appropriate
deductions such as for development of land for providing space for roads,
sewers, drains, expenses involved in formation of a layout, lump-sum
payments as well as the waiting period required for selling the sites that
would be formed and other expenses involved therein, but before doing so,
the evidentiary value of such a sale deed is required to be carefully
scrutinized. As held in the case of Nookala Rajamallu (supra), in order to
adopt the price reflected in the sale deed, the following conditions are
required to be met:
"9. It can be broadly stated that the element of speculation is
reduced to a minimum if the underlying principles of fixation of
market value with reference to comparable sales are made:
(i) when sale is within a reasonable time of the date of
notification under Section 4(1);
(ii) it should be a bona fide transaction;
(iii) it should be of the land acquired or of the land adjacent to
the land acquired; and
(iv) it should possess similar advantages
10. It is only when these factors are present, it can merit a
consideration as a comparable case (see Special Land
Acquisition Officer v. T.Adinarayan Setty AIR 1959 SC 429)."
18. In the present case, the two sale deeds in question are dated
28.02.1996 (Ex.P-1) and 23.02.1996 (Ex.P-2) respectively. Both are in
respect of one bigha of land situated in the village Aali. While the sale
consideration as mentioned in Ex.P-1 was Rs.4,90,000/-, the sale
consideration in respect of Ex.P-2 was mentioned as Rs.4,20,000/-. As the
Notification under Section 4 of the Act was issued on 31.10.1996, the time
lag between the date of execution of the sale deeds in question and the
issuance of Notification was less than one year. Hence at first blush, the
submission of the counsel for the appellants that the sale prices reflected in
the aforesaid two sale deeds ought to have been accepted, as the prices
indicated therein were fetched for similar lands with similar advantages and
potentialities, executed on or about the time of preliminary Notification,
appears quite attractive. However, the bona fides of the sale transactions
also need to be put to test. In this context, it is relevant to examine the
evidence led by the appellants.
19. One of the witnesses produced by the appellants, Shri Bishamber
Dayal deposed that he had executed the sale deed dated 23.02.1996, in
respect of one bigha of land for a sale consideration of Rs.4,20,000/- which
amount was received by him from one Sh.Surinder, entirely in cash. In his
cross-examination, the said witness was unable to state as to how many
witnesses were present at the time of execution of the sale deed. He further
admitted that though he had a bank account, but the cash received on
account of the sale was not deposited in the bank. He conceded that he did
not make any declaration with the Income Tax authorities in respect of the
sale and nor had he taken any permission for sale of the land in question.
While it is narrated in the Sale Deed that the money had already been
received by the vendor, the vendee deposed that the whole consideration
was paid to him on the same day in the office of the Registrar.
20. Similarly, the other witness produced by the appellants, Shri
Mahender Singh stated in his testimony that he had executed the sale deed
dated 28.02.1996, in respect of one bigha of land in village Aali sold by him
to Sh. Arjun, for a consideration of Rs.4,90,000/- which sale consideration
was received by him in cash, though he admitted having a bank account.
The purchaser of one bigha of land, subject matter of Ex.P-2, Shri Surender
Singh deposed that he had purchased a piece of land measuring one bigha
for a sale consideration of Rs.4,20,000/-, which was paid by him in cash. He
stated that he had purchased the land for agricultural purposes. In his
cross-examination, he admitted that the land was purchased after issuance
of the Notification under Section 4 of the Act and there were no authorized
or unauthorized colonies near about the land in dispute.
21. From the aforesaid testimony of the witnesses, the genuineness
of the two sale deeds appears to be doubtful. The vendors under the two
sale deeds admitted that the entire sale consideration was received by them
in cash and though they were income tax assessees, they did not deposit the
sale amount into their bank accounts. This is despite the fact that both the
vendor and the vendee of Ex.P-2 admitted maintaining bank accounts in
their names. The parties also admitted that they did not disclose the sale
transaction to the Income Tax authorities. Pertinently, the land was being
utilized by the vendor for agricultural purpose and was also purchased for
the very same purpose. There is force in the contention of the counsel for
the respondent/UOI that no prudent cultivator would purchase one bigha of
land for the purposes of cultivation, as cultivation in such circumstances
would prove to be quite uneconomical. The said sale deeds came into
existence a few months prior to the issuance of the Notification in question
and after the survey conducted by the Government for the purpose of
acquisition. Interestingly, both the seller and the purchaser were claimants
before the Reference Court and are appellants in the present Court. Apart
from the sale deeds, the appellants were unable to place on record any
contemporaneous evidence to support the sale transactions. In such
circumstances, mere examination of the vendor and vendee of the sale
deeds is not sufficient, in the absence of any proof of passing of the sale
consideration under the sale deeds or the circumstances in which, the said
documents came to be executed. As observed in the case of Baldev Singh
(supra), it is not uncommon that prior to issuance of preliminary Notification,
the survey of the land is conducted by the Government and as it takes some
time for the publication of the Notification, such like documents are brought
into existence so as to increase the market value of the land.
22. The submission of the counsel for the appellant that having
adduced sufficient evidence by producing the sale deeds and the executants
in the witness box, they had discharged the onus placed on them, which
shifted to the respondents who failed to discharge the same, must be
examined in the light of the observations made by the Supreme Court in the
case of P. Ram Reddy (supra). It was observed in the said case that
whenever oral evidence is adduced by parties on certain matters in
controversy, it may become difficult for the court to overlook such evidence,
if it is not shown by effective cross-examination of such witnesses, who have
given such evidence or by adducing contra-evidence, that the oral evidence
was unreliable or the witnesses themselves are not creditworthy. But, in
land acquisition references before civil courts, where witnesses give oral
evidence in support of the claims of the claimants for higher compensation,
the ineffective cross-examination of such witnesses, is not an uncommon
feature if regard is had to the manner, in which the claims for enhanced
compensation in land acquisition cases are defended in courts on behalf of
the State. Hence, it cannot be said that whenever the statements made by
claimants' witnesses in courts are not got over on behalf of the Collector by
subjecting the witnesses to effective cross-examination or by not adducing
evidence in rebuttal, the courts are obligated to accept such statements of
witnesses as true, if tested on the basis of probabilities, becomes unreliable.
Such is not even the case here. The respondents have effectively cross-
examined the witnesses produced by the appellants in support of the two
sale deeds, and elicited sufficient information from them to cast a shadow on
the said documents. Mere acceptance of a document of sale transaction as
evidence, does not mean that the court is bound to treat them as reliable
evidence. All the pros and cons have to be weighed by the court. Having
tested the oral evidence of the appellants on the touchstone of probabilities,
it has to be held that the two sale deeds (Ex.P-1 & Ex.P-2) appear to be
untrustworthy and cannot be relied upon for determining the market value
of the acquired land in village Aali at the time of issuance of preliminary
Notification. This Court is therefore inclined to agree with the Reference
Court that the aforesaid sale deeds could not be relied upon to assess the
market value of the land, as the appellants were unable to dispel the cloud
of suspicion hanging on the aforesaid documents, by producing supporting
contemporaneous evidence to establish their genuineness.
23. In view of the conclusion that the bona fides of the two sale
transactions with regard to the same land under acquisition appear to be
untrustworthy and were rightly not relied upon by the Reference Court to
reflect the prevalent market value of the acquired land, this Court need not
dwell on the question as to whether the value fetched by a smaller parcel of
land could form the basis for determination of the value of a large tract of
land. For the said reason, the judgments referred to by both sides as to in
what circumstances, can the sale price in respect of a small piece of land be
the determinative factor for deciding the market value of the land, need not
detain the Court.
24. The second plank of the arguments addressed on behalf of the
appellants is that for determining the market value of the acquired land, the
Reference Court ought not to have ignored the evidence produced by the
appellants, pertaining to the market value of the land situated in village
Jasola, particularly when both the lands were situated in the same vicinity
and the Halqa Patwari, PW1 had deposed that the nature of the land in
village Jasola and village Aali were similar.
25. It is a settled law that in the absence of any reliable instance of
sale of land in the same village which can form the basis to assess the
market value of the acquired land, the Courts can take into consideration the
prices of land situated in the adjoining villages. However, the potentiality of
the land is an important factor. Following the decision of the Supreme Court
in the case of Smt. Tribeni Devi & Ors. vs. The Collector, Ranchi reported as
AIR 1972 SC 1417, it was held by the High Court in the case of Mani Ram
Sharma (supra), that the potentiality of land is a true element of value and it
will include probabilities, possibilities and prospects. A Division Bench of this
Court observed in the case of Raj Devi (supra), that the mere fact that two
villages are contiguous to each other could not be sufficient for granting the
same compensation to owners of lands in the two villages. Generally
speaking, there would be different situations and potentialities and the land
situated in two different villages cannot be identical, unless it has been
established that the situations and the potentialities of the land in two
different villages are the same. (Refer: Kanwar Singh (supra). This can
only be determined with reference to the material to be placed on the
record, or made available in that regard by the parties concerned and not
purely on surmises and conjectures.
26. In the case of P. Ram Reddy (supra), on the question as to
whether the building potentiality of the land acquired under the Act, is
required to be taken into consideration for the purpose of determining its
market value and if so, in what manner, the Supreme Court held as below:
"8. Market value of land acquired under the LA Act is
the main component of the amount of compensation
awardable for such land under Section 23(1) of the
LA Act. The market value of such land must relate to
the last of the dates of publication of notification or
giving of public notice of substance of such
notification according to Section 4(1) of the LA Act.
Such market value of the acquired land cannot only
be its value with reference to the actual use to which
it was put on the relevant date envisaged under
Section 4(1) of the LA Act, but ought to be its value
with reference to the better use to which it is
reasonable capable of being put in the immediate or
near future. Possibility of the acquired land put to
certain use on the date envisaged under Section 4(1)
of the LA Act, of becoming available for better use in
the immediate or near future, is regarded as its
potentiality. It is for this reason that the market
value of the acquired land when has to be
determined with reference to the date
envisaged under Section 4(1) of the LA Act, the
same has to be done not merely with reference
to the use to which it was put on such date, but
also on the possibility of it becoming available
in the immediate or near future for better use,
i.e, on its potentiality. When the acquired land
has the potentiality of being use for building
purposes in the immediate or near future it is
such potentiality which is regarded as building
potentiality of the acquired land. Therefore, if
the acquired land has the building potentiality, its
value, like the value of any other potentiality of the
land should necessarily be taken into account for
determining the market value of such land.
Therefore, when a land with building
potentiality is acquired, the price which its
willing seller could reasonable expect to obtain
from its willing purchaser with reference to the
date envisaged under Section 4(1) of the LA
Act, ought to necessarily include that portion of
the price of the land attributable to its building
potentiality. Such price of the acquired land then
becomes its market value envisaged under Section
23(1) of the LA Act." (emphasis added).
27. In the present case, the evidence placed on the record by the
appellants to claim parity with the land situated in village Jasola is a
judgment of the Division Bench of this Court in RFA 114/1998 entitled S.S.
Aggarwal & Ors. vs. Union of India & Ors, whereunder the land notified
under Section 4 of the Act on 06.01.1995 in village Jasola, was assessed at
Rs.7,390/- per sq. yard (Ex.P4), the testimony of Shri Ashok Kumar(PW-1),
Halqa Patwari of village Aali and the topography of the area as per the site
plan.
28. In his testimony, Shri Ashok Kumar(PW-1) deposed that village
Madanpur Khadar was located between village Jasola and village Aali and
that the distance between the two villages was about 3 kms. Mathura Road
was stated to be at a distance of 6 kms. from the land in question.
Similarly, Mohan Co-operative Society was also stated to be at a distance of 6
kms from the land in question, whereas Sarita Vihar and Apollo Hospital
were at a distance of 7 kms. The land in question was stated to be
agricultural in nature and it was admitted that no development had taken
place in the area where the land had been acquired for NTPC. Pertinently,
in his cross-examination, the said witness stated that earlier also, the land
had been acquired in village Aali for the purpose of Ash Pond collection for
NTPC and no development had taken place in the area where the land had
been acquired; that the land, which had been developed in village Jasola for
residential and commercial purposes was at a considerable distance from the
acquired land, which was located far away from the main road. The witness
admitted that he had no document to show that the land in village Jasola
was similar to the land in village Aali. The records reflect that none of the
witnesses produced by the appellants were able to establish that the
situations and potentialities of the land in village Jasola and village Aali are
similar, so as to seek parity with village Jasola. The witness produced by the
appellants has not been able to furnish any cogent reasons as to why the
land price in village Aali must be identical to that in village Jasola. The
burden of proving the said point rested at the door of the appellants, which
they have failed to discharge sufficiently.
29. The submission of the counsel for the appellants that the site
plan reflects that acquired land in village Aali was surrounded by Mohan Co-
operative Society, Indraprastha Apollo Hospital, Jasola Sports Complex and
Jasola Vihar, is contrary to the records. The aforesaid locations mentioned
by the counsel for the appellants are about 6-7 kms. away from the acquired
land. The distance between Mathura Road and the acquired land at village
Aali is also admittedly about 6 kms.
30. The aforesaid position is also borne out from a perusal of the
Eicher map, which reflects the topography of the area, and over which there
is no dispute. Village Aali is bounded by village Madanpur Khadar towards
the north and Badarpur to its south. On its east is the Agra Canal and on its
west runs Mathura Road. On the other side of Mathura Road is Mohan
Cooperative Industrial Area and the outlet of M/s Haldiram, which fall in
village Tehkhand. The site plan relied upon by the counsel for the appellants
itself reflects that the acquired land is situated quite far away from Mohan
Cooperative Society. Indraprastha Apollo Hospital, Jasola Sports Complex
and Jasola Vihar form a part of village Jasola and adjoining to village Jasola
is village Madanpur Khadar, whereafter towards it's south, comes village
Aali. Except for the colony of NTPC itself, which cannot be treated as a
private residential colony but one constructed by the undertaking for the
residence of its employees, working in the unit, there is no other habitation
in the nearabout area. There is no access by road to the acquired land. No
evidence has been placed on record to demonstrate that any development
work by way of extension of facilities of electricity, water, sewer, roads etc.
had been undertaken in the acquired land. The two Sale Deeds(Ex.P-1 &
Ex.P-2) also reflect that the land was being used for agricultural purposes.
Hence, the geographical location of the land does not come to the aid of the
appellants to claim parity with the land in village Jasola.
31. The parity sought by the appellants with land situated in village
Jasola on the strength of the judgment of the Division Bench of this Court in
the case of S.S. Aggarwal (supra), also seems to be misconceived. In the
aforesaid case, the Division Bench observed that the revenue estate of
village Jasola was declared as urban on 28.09.1966 and was declared as a
developed area in the year 1974. Four successive acquisitions took place in
the said village and on the date of Notification under Section 4 of the Act,
i.e., on 06.01.1995, it was a fully developed area in which, there stood
Sukhdev Vihar, Ishwar Nagar, Jasola DDA flats, Jasola Colony, Apollo
Hospital, Harkesh Ngar, Sarita Vihar, part of Mohan Cooperative Industrial
Area and Okhla Industrial Area Part-II and there is colony of New Friends
Colony. Considering the development activities, which were coming up in the
colonies, the existence of a medical institution and an industrial area, the
Division Bench held that prior to the notification under Section 4 of the Act
itself, the land in question had great potential not only as a site for
residential building, but also for commercial and industrial development. For
determining the market value of the acquired land in village Jasola, the
Court took into consideration the market value of the land situated in village
Bahpur and the schedule of market rates of land as fixed by the Government
of India in different areas of Delhi/New Delhi, and thereafter, for the
difference of the rate upto the date of notification under Section 4 of the Act,
considered the option of allowing progressive appreciation @ 12% per
annum or a flat increase of 15% per annum, to arrive at the prevailing
market value of the acquired land in village Jasola. After taking into
consideration the fact that the market value of the land had been on the
increase from the year 1979 onwards on account of tremendous
development activities and keeping in view the fact that the major tract of
land in village Jasola and village Bahpur had already been acquired for
planned development, the Court finally granted a flat increase @ 15% per
annum and worked out the average market rate of the land situated in
village Jasola as on 06.01.1995, @ Rs.7,390/- per sq. yard.
32. None of the features mentioned in village Jasola have been
found to be identical or even similar in the fact situation of the case in hand.
It cannot be said that the acquired land is in close proximity to the
developed land in village Jasola nor can the said land boast any development
activities, residential, commercial or industrial, for enhancing its
potentialities. Mere distance of about 3 kms. between village Jasola and
village Aali, cannot strengthen the hands of the appellants to claim parity in
the absence of placing any material on the record to show that the quality
and potentiality of the land in village Aali is similar to the land in village
Jasola. Hence, contiguity of the two villages cannot be treated as sufficient
ground to grant the same compensation to the landowners in both the
villages. [Refer: (i) 21(1982) DLT 214 (DB) UOI vs. Nand Kishore, (ii)
(1998) 8 SCC 136 Kanwar Singh vs. UOI and (iii) (2007) 145 DLT 438
Raj Devi vs. UOI].
33. The finding of the Reference Court that no evidence had been led
to show any development in village Aali, so as to assess the market value of
the acquired land on the basis of the rates assessed in village Jasola, is
based on a correct appreciation of the evidence on the record and does not
call for interference. For the aforesaid reasons, this Court is not inclined to
interfere with the said findings insofar as the Reference Court declined to
grant compensation to the appellants on the basis of the market value of the
land acquired in village Jasola, as per the judgment in the case of S.S.
Aggarwal (supra). In any case, a judgment determining the compensation is
not conclusive, but only a piece of evidence which has to be scrutinized
along with other pieces of evidence for assessing the correct market value of
the land.
34. Insofar as the submission of the counsel for the respondent
No.2/NTPC with regard to the mention made by the Reference Court to a
decision in LAC No.4/2006 entitled Shafiq-ur-Rehman Vs. UOI, decided on
21.03.2007 and pertaining to the same Award is concerned, a perusal of the
impugned judgment shows that although a mention of the aforesaid case
was made by the Reference Court, the same did not form the basis of
assessing the market value of the acquired land. In the case of Shafiq-ur-
Rehman (supra), the Reference Court had observed that the petitioner
therein had himself purchased the acquired land measuring one bigha in
village Aali by virtue of a sale deed dated 18.12.1995 for a consideration of
Rs.1 lac. After taking note of the said transaction, the Reference Court
observed in the said case that the same reflected that the market value of
the land was much less than the amount assessed by the LAC, which was @
Rs.1,94,088/- per bigha and even if appreciation is assessed @ 12% per
annum from 18.12.1995 till the date of Notification under Section 4 of the
Act, i.e., till 31.10.1996, the rate of land would be far less than what was
awarded by the LAC. In the impugned Award, subject matter of the present
appeals, the Reference Court accepted the findings of the LAC insofar as the
determination of the market value of the acquired land was concerned.
While doing so, he only corrected the arithmetical error of calculation in the
assessment of the market value of the land made by the LAC to fix it @
Rs.1,96,940/- per bigha. Even otherwise, there is merit in the submission of
the counsel for the appellants that the land price shown in the sale deeds,
mentioned in the case of Shafiq-ur-Rehman (supra), was far less than the
price fixed for agricultural land as per the policy of the Delhi Government
dated 25.07.1997, which determined the corresponding appreciation @
11.5% per annum as the market value fixed on 30.05.1990, which came to
a figure of Rs.4,65,000/- per acre, as the basis for assessing the market
value of the acquired land. Therefore, the submission of the counsel for the
respondent No.2/NTPC that the sale transaction, as discussed in the case of
Shafiq-ur-Rehman (supra), could have a binding force on the land of the
appellants herein, they having accepted the same as correct, is without any
force, and is turned down.
35. Now, that the two sale transactions have been found to be shaky
pieces of evidence for adopting the comparable sales method, the judgment
of the Division Bench of this Court in the case of S.S.Aggarwal(supra) has
been held to have no application to the present case and it has been
concluded that reliance cannot be placed on instance of price of land in
village Jasola, the potentiality of the two classes of land being entirely
different, the question that requires to be addressed is if there is any other
material, which could be taken into consideration to assess the correct
market value of the acquired land?
36. A relevant decision, which has been brought to the notice of this
Court by the learned counsel for the respondent/UOI and cannot be ignored,
is the judgment of a Division Bench of this Court dated 30.11.2007, in a
batch of matters, lead matter registered as LAA 92/2007 entitled Nirmal
vs. UOI. In the aforesaid judgment, the Division Bench considered the
judgment and order dated 15.1.2007 passed by the learned Additional
District Judge in respect of the land situated in the same village, i.e., village
Aali covered under Award No.9/94-95, announced on 6.6.1994, pursuant to
a notification under Section 4 of the Act issued on 16.10.1992, which was
followed by a declaration under Section 6 of the Act, issued on 23.3.1993.
In the aforesaid case also, a large tract of land was notified for acquisition
for the same purpose as in the present case, i.e., for development of Ash
Pond collection for NTPC. The compensation as determined by the LAC and
payable to the land owners was fixed @ Rs.4,65,000/- per acre.
Dis-satisfied by the said enhancement, the expropriated land owners
preferred an appeal before the Reference Court, which vide judgment dated
22.1.2007, enhanced the compensation to Rs.5,99,850/- per acre.
Aggrieved by the said enhancement, the land owners preferred an appeal
before the High Court. In the said appeal, the High Court held the
appellants/landowners therein to be entitled to payment of compensation @
Rs.6,51,000/- per acre, with proportionate statutory benefits on the said
amount alongwith the proportionate costs. Unfortunately, the said judgment
and order dated 15.1.2007 was not brought to the notice of the Reference
Court at the time when arguments were addressed by the parties in the
present case. As the judgment of the Division Bench came to be passed
three months later, on 30.11.2007, the Reference Court could not have the
benefit of the said judgment while passing the impugned order dated
23.8.2007.
37. While the date of issuance of the preliminary Notification in the
case of Nirmal (supra) was 16.10.1992, in the present case, the date of
notification under Section 4 of the Act, is 31.10.1996, i.e., approximately
four years down the line. In the aforesaid case also, the Division Bench took
notice of the two sale deeds(Ex.P-1 & Ex.P-2), subject matter of
consideration in the impugned judgment herein, but went on to determine
the market value of the acquired land not on the basis of the said sale
transactions, but on the basis of compensation given for the land situated in
village Jaitpur, wherein the date of Section 4 notification was found to be
identical to that in the aforesaid case, i.e., 16.10.1992. Incidentally, the
land in village Jaitpur was also acquired for the purposes of Ash Ponds for
BTPS. The Division Bench observed that the Reference Court in that case
had wrongly ignored the fact that the compensation for the land in village
Jaitpur had been enhanced by the Reference Court itself in LAC No.
133/1994 to Rs.6,51,000/- per acre. Having regard to the fact that the
preliminary Notifications in both the acquisitions were issued on the same
date and taking into consideration the fact that the Reference Court had
accepted the acquisition of land in village Jaitpur as comparable to that of
Village Aali, it was opined by the Division Bench that there was no reason as
to why the enhanced compensation as determined by the Reference Court
for village Jaitpur should not be made applicable for acquisition in the case
of village Aali. As a result, the appeals were allowed in the case of Nirmal
(supra) by holding that the appellants/landowners were entitled to receive
compensation @ Rs.6,51,000/- per acre for the acquired land.
38. If the compensation was fixed @ Rs.4,65,000/- per acre in the
aforesaid case by the LAC, as on the date of issuance of the preliminary
notification, i.e., on 16.10.1992, for the agricultural land of the same nature
acquired in the very same village, for almost an identical purpose, then the
LAC in the present case ought to have looked into the said piece of evidence
for determining the fair market value of the land on 31.10.1996.
Determination of the market value of the land, four years down the line, as
on 31.10.1996, at Rs.1,94,088/- (revised to Rs.1,96,940/- by the Reference
Court, by rectifying the arithmetical error), which is less than half of the rate
determined in the year 1992, appears to be quite unreasonable.
Furthermore, as noticed above, on references received from the landowners
in the case of Nirmal(supra) , the Reference Court had enhanced the market
value of the acquired land from Rs.4,65,000/- per acre as fixed by the LAC,
to Rs.5,99,850/- per acre, after giving appreciation @ 12% p.a. for a period
of 29 months (i.e., from 27.4.1990, the date of the policy of Government of
Delhi, till 16.10.1992, the date of issuance of Section 4 Notification). This
mount was further enhanced by the Division Bench in appeal, by adding
Rs.51,150/- per acre to the sum of Rs.5,99,850/-, to arrive at the
compensation of Rs.6,51,000/- per acre.
39. Considering the fact that the gap between the date of issuance
of Section 4 notification in the case of Nirmal(supra) and that in the present
case is only a period of four years and 15 days and in view of the fact that
both the notifications pertain to large tracts of agricultural land of the same
nature, advantages and potentiality, situated in the same village, i.e., village
Aali which were acquired for the same purpose of Ash Pond Collection for
NTPC, it would be fairly safe to make the case of Nirmal(supra) as the basis
for determining the market value of the acquired land in the present case.
40. The next question that is posed is what was the rate of
escalation in the market value at the relevant time. While dealing with the
question as to what should be the increase per annum, and how should it be
calculated, the Supreme Court made the following observations in the case
of General Manager, ONGC(supra):
"13 Primarily, the increase in land prices
depends on four factors: situation of the land,
nature of development in surrounding area,
availability of land for development in the area,
and the demand for land in the area. In rural
areas, unless there is any prospect of
development in the vicinity, increase in prices
would be slow, steady and gradual, without any
sudden spurts or jumps. On the other hand, in
urban or semi-urban areas, where the
development is faster, where the demand for
land is high and where there is construction
activity all around, the escalation in market
price is at a much higher rate, as compared to
rural areas. In some pockets in big cities, due to
rapid development and high demand for land, the
escalations in prices have touched even 30% to 50%
or more per year, during the nineties.
14 On the other extreme, in remote rural areas
where there was no chance of any development and
hardly any buyers, the prices stagnated for years or
rose marginally at a nominal rate of 1% or 2% per
annum. There is thus a significant difference in
increases in market value of lands in
urban/semi-urban areas and increases in
market value of lands in the rural areas.
Therefore, if the increase in market value in
urban/semi-urban areas is about 10% to 15%
per annum, the corresponding increases in
rural areas would at best be only around half of
it, that is, about 5% to 7.5% per annum. This
rule of thumb refers to the general trend in the
nineties, to be adopted in the absence of clear
and specific evidence relating to increase in
prices. Where there are special reasons for applying
a higher rate of increase, or any specific evidence
relating to the actual increase in prices, then the
increase to be applied would depend upon the same.
15 Normally, recourse is taken to the mode of
determining the market value by providing
appropriate escalation over the proved market
value of nearby lands in previous years (as
evidenced by sale transactions or acquisition),
where there is no evidence of any
contemporaneous sale transactions or
acquisitions of comparable lands in the
neighbourhood. The said method is reasonably
safe where the relied-on sale
transactions/acquisitions precede the subject
acquisition by only a few years, that is, up to
four to five years. Beyond that it may be unsafe,
even if it relates to a neighbouring land. What may
be a reliable standard if the gap is only a few years,
may become unsafe and unreliable standard where
the gap is larger. For example, for determining the
market value of a land acquired in 1992, adopting
the annual increase method with reference to a sale
or acquisition in 1970 or 1980 may have many
pitfalls. This is because, over the course of years, the
"rate" of annual increase may itself undergo drastic
change apart from the likelihood of occurrence of
varying periods of stagnation in prices or sudden
spurts in prices affecting the very standard of
increase."(emphasis added)
41. In the present case, as noticed above, the acquisition was in a
rural area. There is no evidence brought on the record of any extraordinary
development or increase in the land prices of the area. Nor is there any
evidence produced by respondent/UOI to show complete stagnation of land
price only because it was agricultural in nature. The time line between the
acquisition of land in village Aali in the case of Nirmal(supra) and the case in
hand, is of four years.
42. Keeping in mind the aforesaid guidelines laid down by the
Supreme Court, in the absence of clear and specific evidence indicating the
real increase in prices, the escalation in price of land in village Aali, can be
reasonably ascertained by making October 1992, the base year and adopting
the method of calculating the year to year increase on a cumulative increase
basis, by applying a cumulative rate of escalation. This Court is of the view
that providing escalation of 10% p.a. over the 1992 land price determined in
the case of Nirmal(supra), would be reasonable and adequate to arrive at
the fair market value of the acquired lands. As the rate of the land was
determined at Rs.6,51,000/- per acre in the base year 1992, and the
cumulative rate of increase in land price in such a rural area would be 10 %
p.a., while excluding the base year of the relied upon acquisition
proceedings, the market value of the acquired land in the year 1996, would
be Rs.9,53,129.10 paise per acre. The said figure is rounded off to
Rs.9,53,130/- per acre.
43. Accordingly, the appeals are partially allowed. The fair market
value of the land situated in village Aali in respect of the notification issued
under Section 4 of the Act dated 31.10.1996, is determined as Rs.9,53,130/-
per acre. Besides the above, the appellants shall also be entitled to 30%
solatium on the above market value of the land under Section 23(2) of the
Act, 12% additional amount under Section 23(1-A) of the Act from the date
of notification issued under Section 4(1) of the Act to the date of the
Collector taking possession of the land or making of the award, whichever is
earlier. On the enhanced market value, interest will also be paid under
Section 28 of the Act @ 9% p.a. from the date of dispossession for the first
year and thereafter, @ 15% p.a. till the date of tender of compensation.
Interest will also be paid on the solatium and additional amount in view of
the decision of the Supreme Court in the case of Sunder Vs. Union of India
reported as 93(2001) DLT 569. The appellants shall be entitled to
proportionate costs in the appeals.
44. The appeals stand disposed of, on the above terms.
(HIMA KOHLI)
JUNE 3, 2010 JUDGE
mk/rkb
