Sardar Virendra Singh vs Indore Development Authority
2023 Latest Caselaw 18102 MP

                                                         1

                                IN THE HIGH COURT OF MADHYA PRADESH
                                             AT I N D O R E
                                                     BEFORE
                                    HON'BLE SHRI JUSTICE PRANAY VERMA



                                          FIRST APPEAL No. 244 of 2002

                           BETWEEN:-
                           SARDAR VIRENDRA SINGH BOLIYA (DECEASED)
                           THROUGH LR : SMT. JASBIR KAUR BOLIA WD/O
                           SARDAR WIREDNRA SINGH BOLIA, AGE 86 YEARS,
                           OCCUPATION - HOUSE WIFE, R/O 9, MANIK BAG ROAD,
                           INDORE (MADHYA PRADESH)
                                                                         .....APPELLANT
                           (BY SHRI GM.AGRAWAL - ADVOCATE)

                           AND
                               INDORE DEVELOPMENT AUTHORITY, 7 RACE
                           1.
                               COURSE ROAD, INDORE (MADHYA PRADESH)
                              STATE OF MADHYA PRDESH INDORE THROUGH
                           2.
                              COLLECTOR, INDORE (MADHYA PRADESH)
                                                                     .....RESPONDENTS
                           (BY SMT. VINITA PHAYE - GOVT. ADVOCATE)




                                          FIRST APPEAL No. 148 of 2002

                           BETWEEN:-
                           INDORE DEVELOPMENT AUTHORITY, 7 RACE COURSE
                           ROAD, INDORE (MADHYA PRADESH)



Signature Not Verified
Signed by: NEERAJ
SARVATE
Signing time: 01-11-2023
15:12:41
                                                                                  2
                                                                                                               .....APPELLANT
                           (BY SMT. VINITA PHAYE - GOVT. ADVOCATE)

                           AND
                              SARDAR VIRENDRA SINGH BOLIYA, INDORE
                           1.
                              (MADHYA PRADESH)
                              STATE OF MADHYA PRADESH THROUGH LAND
                           2. ACQUISITION OFFICER, COLLECTRATE OFFICE
                              INDORE (MADHYA PRADESH)
                                                                                                           .....RESPONDENTS
                           (BY SHRI G.M.AGARWAL - ADVOCATE)
                           .................................................................................................................
                           Reserved on              : 06.07.2023
                           Pronounced on :                31.10.2023
                           ................................................................................................................
                                    These appeals having been heard and reserved for judgment,
                           coming on for pronouncement this day, the court passed the following:

                                                                       JUDGMENT

1. Since these appeals have been preferred against the same award passed by the Court below, they have been heard together and are being decided by a common judgment. FA No.244/2002 has been preferred by the legal representatives of the original claimant/land owner whereas FA No.148/2002 has been preferred by the non-applicant No.1/opposite party.

2. These appears have been preferred against the award dated 21.12.2001 passed in Land Acquisition Case No.2/1999 by the VIIth Additional District Judge, Indore in a reference made under Section 18

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of Land Acquisition Act, 1894 (here-in-after referred as "the Act') arising out of the award dated 08.05.1987 passed by the Land Acquisition Officer, Indore in Land Acquisition Case No.3A-82/83-84.

3. The facts of the case in brief are that the State Government intended to acquire total 2.637 hectare of land of Village Pipliyarao, District Indore for the purpose of development of second phase of Scheme No.59 of the Indore Development Authority ('IDA'). In furtherance of such intention, proceedings were initiated under the Act, 1894 in which notification under Section 4(1) of the Act was published on 28.11.1983. Notification under Section 6(1) of the Act was published on 13.12.1985. Thereafter the Land Acquisition Officer carried out the proceedings under Section 11 of the Act and upon issuance of notices to him, the land owner appeared before him for the purpose of determination of amount of compensation to be paid to him for his land being compulsorily acquired. Thereafter award was passed by the Land Acquisition Officer on 08.05.1987 wherein he assessed the amount of compensation payable to the land owner at Rs.50,000/- per hectare along with statutory interest like solatium, etc. The possession of the acquired land was taken on 09.09.1987 from the land owner and the amount of compensation was paid to him.

4. Being dissatisfied with the amount of compensation awarded to him for his acquired land the original land owner of First Appeal No.244/2002 sought for reference under Section 18 of the Act, 1894.

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He claimed compensation at the rate of Rs.100/- per sq. ft. The reference as prayed for by the land owner was made to the reference Court wherein the land owner filed his statement of claim after which the non-applicant No.1 IDA also filed its reply to the same. Thereafter both the parties led oral as well as documentary evidence in support of their respective contentions. By the impugned award dated 21.12.2001 the reference Court has determined the compensation payable to the claimant at the rate of Rs.1,30,000/- per acre.

5. Being aggrieved by the aforesaid award passed by the reference Court the land owner as well as the opposite party/IDA have preferred these appeals. During pendency of these appeals the original land owner expired and his legal representatives have been brought on record. The learned counsel for the appellants has submitted that the reference Court has assessed the compensation on the basis of award Ex.P.9 passed by a reference Court in Land Acquisition Case No.17/1993 (Bhagwan and Others V/s. State of M.P. and Another), Land Acquisition Case No.19/1993 (Laxminarayan and Others V/s. State and Another) and other connected reference cases whereby compensation of land was awarded at Rs.1,00,000/- per acre but has not properly taken into consideration the oral as well as the documentary evidence brought on record before the Court. Lands which were covered under the aforesaid cases were acquired under a notification dated 14.07.1978 and for first part of Scheme No.59 of the I.D.A. The lands of the land owner were

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acquired for second part of Scheme No.59 and were abutting the main A.B. Road and Manik Bagh Road (Choithram Road) on the other side and were situated within the Municipal Corporation limits in the year 1983. It ought to have been seen that the lands abutting the National Highway will always fetch much higher price than the lands situated in the interior. The lands acquired by way of award Ex.P.9 were far away from the A.B. Road abutting which the lands of the land owner were situated. The same is apparent from the map Ex.P.8 which has been proved by PW-5 Nandkishore Vyas, Patwari. It is also submitted that possession of the acquired land was taken from the land owner in the year 1987 but he did not receive just and fair compensation and now his legal representatives have come on record hence it would be wholly unjust to allow any deduction as has been held by the Apex Court in Valliyammal V/s. Special Tehsildar AIR 2011 SC 2937. It is submitted that for the purpose of establishing the location of the acquired land the land owner had examined himself as PW-1, Balkishan Manekar, Patwari of Gram Pipliya as PW-2, Nandkishore Vyas, Patwari as PW-5 and Indersingh Malviya, Patwari as PW-6. He submits that even the witness examined on behalf of IDA namely Rajesh Jain as DW-1 admitted that the acquired land was abutting the National Highway A.B. Road and was situated within the Municipal limits in the year 1983.

6. During pendency of this appeal the appellant has filed an

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application under Order 41 Rule 27 of the CPC bearing IA No.6188/2022 along with a certified copy of the decision rendered by this Court in F.A. No.90/2001 and other connected appeals (Bhagwan (dead through LRs) V/s. State of M.P. and Others). By the said decision compensation of the acquired land situated in Village Tejpur Gadbadi and Pipliyarao and other villages was determined at Rs.7/- per sq. ft. with reference to date of issuance of notification under Section 4(1) of the Act dated 14.07.1978. Vide judgment dated 15.10.2019 this Court has awarded compensation @ Rs.7/- per sq. ft. The said application deserves to be and is accordingly allowed and the document is taken on record.

7. It is further submitted that the notification under Section 4(1) of the Act in the case of Bhawansingh (dead through LRs) (supra) was published on 14.07.1978 whereas in the present case such a notification has been published on 28.11.1983. During this intervening period the prices of the land have increased manifold as stated by PW-1 in his examination in chief which has remained unrebutted. Even otherwise this Court can take judicial notice of rise in price of land from the year 1978 to year 1983 which is about 5 years and 4 months. The compensation hence deserves to be appropriately enhanced. Reliance has been placed on the following decisions :- (1) V. Hanumantha Reddy (dead) by LRs V/s. Land Acquisition Officer & mandal R. Officer (2003) 12 SCC 642, (2) Mehrawal

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Khewaji Trust (Registered) Faridkot and Others V/s. State of Punjab and Others (2012) 5 SCC 432, (3) Virendra Singh and Others V/s. Union of India (2003) 10 SCC 86, (4) Gokal V/s. State of Haryana AIR 1992 Supreme Court 150, (5) State of Karnataka and Others V/s. V.S. Narayana Swamy AIR 1992 Supreme Court 151, (6) M.P. Grah Nirman Mandal, Bhopal and Another V/s. Umashankar and Another 1990 JLJ 240, (7) Udho Dass V/s. State of Haryana and Others (2010) 12 SCC 51, (8) Ramarao Shankar Tapase V/s. Maharashtra Industrial Development Corporation and Others (2022) 7 SCC 563, (9) Ashok Kumar and another V/s. State of Haryana AIR 2016 SC 1210, (10) Pankajakshi (Dead) through LRs and Others V/s. Chandrika and Others AIR 2016 SC 1213 and (11) State of Punjab V/s. Amarjit Singh and Another (2011) 4 SCC

8. In the appeal the appellants have also filed an application under Section 151 of the CPC bearing IA No.6189/2022 submitting that in the appeal they have restricted their claim of compensation @ Rs.3,00,000/- per acre for the entire acquired land on account of stringency of funds to pay the Court fees for just and fair compensation. They are entitled for the compensation at higher rate on the basis of the evidence on record. They undertake to pay the additional Court fees for the amount of compensation which may be awarded to them above the amount claimed by them.

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9. Per contra, learned counsel for IDA has submitted that the compensation determined by the reference Court is already on the higher side looking to the evidence available on record hence there is no scope of any furtherance enhancement in the appeal of the land owner and instead the same deserves to be reduced appropriately. The reference as made by the land owner ought to have been dismissed by the reference Court and the award passed by the Land Acquisition Officer ought to have been maintained as it is. The judgments relied upon by the learned counsel for the appellants are altogether different from the facts of the present case. Therein only small parcels of land were acquired and since front portions were acquired the Court has awarded higher amount of compensation. The appeal preferred by the land owner be hence dismissed and the appeal preferred by the IDA be allowed.

10. I have considered the submissions of the learned counsel for the parties and have perused the record.

11. The case of the appellants is based primarily on the basis of the judgment passed by this Court in FA No.90/2001 and connected First Appeals decided on 15.10.2019 which in turn were decided primarily on the basis of judgment passed by this Court in the case of Yogini V/s. State of M.P. F.A. No.42/1993. It was held by this Court as under :-

"In order to examine this issue the findings recorded in the Yogini case are reproduce below:-

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13. It is, therefore, clear that no sale deed of a land which is prior to the date of acquisition i.e. 09.09.1974 is filed by the landowners. It is sale deed of prior date or nearby date of acquisition which is relevant for determining the market value of the land. The only document on which the reference can be made to some extent is Exhibit P-1 which is the award and the sale deed Exhibit P-6. As observed supra, the Court has determined the rate of land of village Chitayad at Rs.8/- per square feet which was acquired in 1976 whereas one rate of land of village Piplya Rao sold in 1975 is around Rs.5.50 per Sq. feet. There is no evidence of market value of and brought on record by the parties except Exhibits P-1 and P-6. In addition, all the witnesses have given evidence about the location of the land in question coupled with its potential. It has come in evidence of claimants that the land situated in the villages in question is in close proximity with Municipal Limits of Indore and near A.B. Road. It has potential because it is surrounded by some factories and colonies constructed in nearby area.

14. Taking into consideration all the aforesaid factors namely, location of land, its potential use, the actual use

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of adjoining areas, its proximity with the Municipal Limits of Indore Town, the purpose for which it was acquired i.e. commercial/ residential, the rates of smaller plots, its appreciation at the rate of 15% every year, the nature of land, the rates determined by the Court if the land subsequently acquired, the rate of land sold in the year 1975, we have formed an opinion rather we have come to conclusion that it is just and proper to award compensation at the flat rate of Rs.7/- per sq. feet to every land owner rather than to award different rates to each land owner as has been done by civil court in the impugned award. In our opinion, the compensation determined at a flat rate to all the land owner having their land in these villages is considered just and proper because firstly, we cannot determine different rates for different land owners though claimed. Secondly, it is also not legally permissible. Thirdly, when the entire land enblock is acquired under one notification for one purpose, then it is always considered legal, just and reasonable to determine one rate rather than different rates. Fourthly, when different kinds of lands are acquired under one notification, we do not consider it proper to differentiate in nature of land and rates

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applicable solely upon its use. In any case, even if it has some significance for claiming more compensation by any particular landowner due to special use of his land at the time of acquisition we have not been able to notice any such claim in these appeals warranting departure for grant of additional compensation in relation to a particular land belonging to any landowner. Sixthly, it is difficult to determine the exact amount of market value of the land with mathematical calculation and hence, we have made out sincere endeavor after evaluating the totality of whole factual scenario brought on record by way of evidence in the form of sale deed, and oral evidence for arriving at a just and reasonable figure of Rs.7 per sq.feet to each land owner irrespective of the nature of land and its use prior to acquisition. In the facts appearing on record, we feel that the value that we have determined apart from it being reasonable and just, it is in accord with law laid down by Supreme Court in several cases cited at the bar. In our view, it is not possible to accept the highly inflated rate demanded by the appellants i.e. Rs.15/- per sq.feet on the facts and evidence brought on record. It is rather exaggerated one and even though the appellants may have paid court fees

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on their claims or have offered to pay the court fees and have made attempt to show more potential in the land yet, we cannot accept such claim which in our view is on higher side with no evidence in support thereof.

xxxxxxxx The Apex court in the case of Valliyammal v. Tahsildar, (2011) 8 SCC 91 has held as under :

25. We may have sustained 20% deduction keeping in view the smallness of the plots which were sold vide sale deeds dated 4-9-1990 and 8-2-1991, but, in the peculiar facts of the case, we think that it will be wholly unjust to allow such deduction. Majority of the appellants have been deprived of their entire landholding and they have waited for 14 to 20 years for getting the compensation. It appears that in compliance with the interim orders passed by the Court, some of the appellants did get 25% and one of them got 35% of the compensation, but majority of them have not received a single penny towards compensation and at this distant point of time, it will be wholly unjust to deprive them of their legitimate right by approving the 20% deduction made by the High Court. In such matters, the Court cannot be oblivious of the fact that

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the landowners have been deprived of the only source of livelihood, the cost of living has gone up manifold and the purchasing power of rupee has substantially declined.

The Apex court in the case of V. Hanumantha Reddy v. Land Acquisition Officer & Mandal R. Officer, (2003) 12 SCC 642, has held as under: It is now a well-established principle of law that the land abutting the national highway will fetch far more higher price than the land lying interior.

xxxxxxxxx The Apex court in the case of R.P. Singh v. Union of India, (2005) 7 SCC 24, has held as under :

Since the land at Village Mangolpur Khurd was acquired after 18 months of the acquisition of the land at Village Mangolpur Kalan they are entitled to the same amount of compensation as has been awarded for the land of Village Mangolpur Kalan. The appellants whose land was situated at Village Mangolpur Khurd would also be entitled to the compensation at the rate of Rs 7000 per bigha. This would be over and above the statutory benefits available under the Act.

xxxxxxxx

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In the matter of Mumtazali Vs. Collector, Sehore 1964 MPLJ 299, Division Bench of this Court has observed as under :

"The 'market value' is not defined in the Act; but the connotation of the expression is now well settled. It has been stated to be the price which a willing vendor might reasonably expect to obtain from a willing purchaser. Neither must be considered as acting under compulsion. The claimant receives for the lands he is compelled to 4 part with under the Act their money equivalent, i.e. that which they are worth to him in money. When a willing purchaser and a willing vendor make a business transaction of sale actuated by business principles, they will necessarily take into account all potentialities of the property. Its actual particular use by the owner at the time of the bargain shall not be the final determining consideration governing its price. All reasonable future possibilities for which the land may be used by a prudent owner must be taken into consideration as part of the value to be owner. The probability that the land can be put to a more profitable use, present or future, in the hands of a prudent owner ought not to be disregarded, so that if a piece of land is at the time of notification under

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section 4 (1) of the Act primarily used for agriculture or is even lying fallow, that is not conclusive of its value. For, if there is a reasonable probability of its being used as a building site in the near future, this land as a building site shall be an element to be taken into consideration in computing its 'market value'.

xxxxxxxxxx The Supreme Court in the case of Krishi Utpadan Mandi Samiti Sahaswan, District Badaun Vs. Bipin Kumar (2004) 2 SCC 283, noticing the evidence of high potentiality held as under :

"the increase of 15% per year on the sale deed comparable can be taken for assessment of the market value on the date of notification under Section 4 of the Act and observed that the same cannot be said to be unreasonable".

xxxxxxxxxx The Apex court in the case of Land Acquisition Officer, Revenue Divisional Officer v. L. Kamalamma, (1998) 2 SCC 385 has held as under:

6. The general trend in the prices of land is on the rise and the judicial notice of the same had been taken by the High Court correctly and therefore, cannot be challenged.

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That the lands of appellants were acquired in the year 1978 and lands in the Yogini matter were acquired in the year 1974 and they have got the compensation for their land @ Rs.7 per sq.feet. The market rate of the land in 4 years is bound to increase. At that point of time development of Indore city had started in the locality of Vill. Tejpurgadbadi, Pipalyarao. The Indore Development Authority had started development of various residential and commercial schemes The market rate of the land of the locality were touching the sky. Hence the market rate of the land for the appellants Rs.7 per sq.feet would be just and proper. In view of the above discussion, all the first appeal are hereby allowed. The appellants are entitled for enhancement of compensation at the rate of Rs. 7/- per sq.feet for their land, with all statutory benefits as already granted by the learned counsel Reference Court. The enhance amount of compensation be paid after deduction of the amount already paid within the period of 90 days subject to payment of difference of court fee payable on enhanced amount of compensation.

Let a copy of this judgment be retained in the file of each connected First Appeal."

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12. Considering the location and situation of the acquired land it is seen that Virendra Singh Boliya (PW-1) in paragraph No.4 of his deposition stated that towards front of the acquired land was Agra Bombay Road and on the side was Manik Bag Road. In between both the roads and the acquired land there was no other land. PW-2, Patwari of Gram Pipaliarao stated that he was the Patwari in the year 1965 and that towards the south of the acquired land is A.B. Road and towards the east is Manik Bag Road. The same fact has also been stated by Patwari Indersingh Malviya (PW-6). From perusal of the cross- examination of the aforesaid witnesses it does not appear that anything was brought out therein to disbelieve them in any manner. Even the witnesses examined on behalf of the IDA have not disputed the factual position as regards location of the acquired land. Thus, it is well established that towards the south of the acquired land was A.B. Road and towards the side was Manik Bag Road and in between them there was no other land. The acquired land was abutting the National Highway A.B. Road and Manik Bag Road (Choithram Road) and was within the municipal limits.

13. In the cases of Bhawansingh (supra) also the lands which were acquired were similarly situated to the land acquired in the present case. The same is well established from the evidence brought on record by the parties. In that case the land was acquired for first part of Scheme No.59 of the IDA whereas in the present case the same has been

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acquired for the second part of the said Scheme No.59. DW-1 Rajesh Jain has himself stated that lands of both the cases were situated at Gram Pipliyarao and were nearby each other. Even the reference Court has considered in paragraph No.9 of its award that land covered in the aforesaid cases and the land acquired in the present case are adjacent and has itself held that the award passed thereunder is an important piece of evidence for determining compensation of land in the present case. In appeals having been preferred in those cases, this Court has already held by judgment dated 15.10.2019 that compensation ought to be payable at Rs.7/- per sq.ft.

14. In the cases of Bhawansingh (supra) notification under Section 4 (1) of the Act, 1894 was issued on 14.07.1978 whereas in the present case the same has been issued on 12.11.1983 i.e. after a period of about 5 years and 4 months. PW-1 has specifically stated that from the year 1978 up to 1983 there was manifold increase in the prices of land. The same was not controverted by the I.D.A. in his cross-examination. Rise in prices of land in cities is a well-known fact and judicial notice can be taken of the same. The same was done by the Apex Court in the matter of Gokul V/s. State of Haryana 1992 Supp (2) SCC 69 in which judicial notice was taken of the fact that there must have been rise in market prices between 1974 and 1978. Judicial notice of rise in price was also taken note of by the Apex Court in Udho Dass V/s. State of Haryana and Others (2010) 12 SCC 51. Thus, it would be just, proper

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and reasonable to hold that there must have been increase in price of land in the area in which the acquired land was situated from the year 1978 up to 1983.

15. In Ramrao Shankar Tapse V/s. Maharashtra Industrial Development Corporation and Others (2022) 7 SCC 563 the Apex Court considering the case of Pehlad Ram and Others V/s. Haryana Urban development Authority and Others (2014) 14 SCC 778 has held that cumulative increase of 10 to 15% per year in market value of land would be acceptable. The same was however stated to be a matter to be considered in the facts of each case. The said view has again been reiterated in the case of State of Haryana and another Vs. Subhash Chander and others (2023) 5 SCC 435.

16. In the present case it is apparent that the acquired land is abutting the National Highway A.B. Road and on the side also is a main road. The witnesses of the land owner have specifically asserted that during the period from 1978 to 1983 there was constant construction activities near the acquired land. At the time when development of Indore city had started, the lands in question were acquired in Village Pipliyarao. The IDA started development of various residential and commercial schemes. The market rate of the land of the locality were touching the sky. Thus, looking to the overall facts and circumstances of the case it would be just and appropriate to take cumulative increase of 12% in the market value of the land from the year 1978 to 1983. The same would

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justifiably come at Rs.12.50/- per sq. ft.

17. In view of the above discussion, FA No.244/2002 deserves to be and is hereby partly allowed. The appellants are held entitled for enhancement of compensation at the rate of Rs.12.50/- per sq. ft. for the acquired land with all statutory benefits as have already been granted by the reference Court. The enhanced amount of compensation shall be paid after deduction of the amount already paid within a period of 90 days subject to payment of difference of Court fees payable on enhanced amount of compensation.

17. Since this Court has held that the amount of compensation awarded by the reference Court was on the lower side and which has been enhanced as aforesaid, the necessary corollary is that the appeal preferred by IDA for reduction in the amount of compensation would fail and the same is accordingly dismissed.

18. The appeals are accordingly disposed off, as aforesaid.

(PRANAY VERMA) JUDGE

ns

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