JUDGMENT
V.K. Bali, J.
1. By this common order, we propose to dispose of RFA No. 1906 of 1991 State of Haryana v. Mulakh Raj Sapra as also RFA No. 1286 of 1991 filed by claimant/landowner Mulakh Raj Sapra arising from same judgment rendered by learned District Judge, Hissar, dated February 5, 1991 as also RFA No. 2346 of 1989 filed by claimant/landowners as also another claimants’ RFA No. 2371 of 1989 filed Padam Kumar as also RFA No. 2823 of 1989 filed by the State of Haryana against Padam Kumar against same judgment dated August 22, 1989 as also LPA Nos. 110, 140 to 151, 173,181, 183, 482, 520 to 524, 695 to 698, 1931 and 2095 of 1989, 26 of 1990 and 114 of 1991. The facts, that necessitate common judgment in all the matters, referred to above, need a necessary mention.
2. The State of Haryana vide notification issued under Section 4 of the Land Acquisition Act, 1894 (here-in-after referred to as the ‘Act’) on May 15, 1979, sought to acquire land measuring 142.36 acres situated in Hissar town for a public purpose, namely, for development and utilisation of land as residential area in Urban Estate, to be set up for Sector 15-A, Hisar. The follow-up declaration under Section 6 of the Act of 1894 was issued on December 21, 1979 pertaining to total land measuring 141.04 acres. The Land Acquisition Collector vide his award dated June 11, 1981 classified one categorised land into three blocks and fixed the market value as under :-
Block
Rates per Sq. Yd
Area of land
Block A
Rs.9/-
622 Kanals 16 Marias on Hisar-Rajgarh road and
Hisar-Kaimari road.
Block B
Rs.8/-
495 Kanals 4 Marias situated near the land included in
Block A
Block C
Rs.6/-
10 Kanals 7 Marias Ghair Mumkin Khandars at the spot on
Hissar-Kaimari Road.
3. Since a big chunk of land was acquired, naturally number of land owners, who were affected of the same, filed references under Section 18 of the Act of 1894. However, in the first instance, 97 reference were clubbed/consolidated together and assigned to Additional District Judge for adjudication. Learned Additional District Judge, before whom these matters came up for hearing, recorded evidence of both the parties and decided the same vide order dated November 4, 1985 and assessed the market value of the land at the relevant time, i.e., instance of notification under Section 4 of the Act of 1894, at Rs.11.25 per Sq. Yard. However, case of Mulakh Raj Sapra, giving rise to R.F.A. No. 1286 of 1991 could not be decided at that stage as same was not somehow consolidated with 97 references, referred to above. It appears from the records of the case that Mulakh Raj Sapra had moved two applications on January 10, 1986, one for spot inspection and other for framing of additional issues and the said applications were rejected. This constrained Mr. Sapra to file revision in this Court which was filed on January 28, 1986, wherein proceedings before the reference court were stayed and the Civil Revision was ultimately allowed on March 16, 1986. Earlier to that Mr. Sapra had moved yet another application for amendment for his claim petition which was allowed on March 26, 1984 and he was permitted to raise his claim, as mentioned in his claim petition under Section 18 from Rs.150/- to Rs.1500/- per Sq. Yards.
4. Before the reference under Section 18 filed by Mulakh Raj Sapra could be disposed of, as mentioned above, 97 references, clubbed or consolidated, came to be disposed of by learned Additional District Judge on November 4, 1985. The landowners/claimants pertaining to some of these 97 references filed appeals which were disposed of by learned Single Judge by a common order dated August 11, 1988. Learned Single Judge, while modifying the award rendered by learned Additional District Judge fixed the market value @ Rs.23/- per Sq. Yard. Still not satisfied, claimants/landlords filed LPAs, detailed above. Insofar as case pertaining to Mulakh Raj Sapra is concerned, that was disposed of by learned District Judge on February 5, 1991, i.e. even after when the High Court had decided 97 consolidated references, mentioned above. Learned District Judge fixed the market value @ Rs.400/- per Sq. Yard. Aggrieved, both the State of Haryana and Mr. Sapra filed RFAs mentioned above. Some other matters, it appears, which were also likewise not consolidated with 97 references, came to be disposed of by learned Additional District Judge on August 22, 1989 and following the order of learned Single Judge in 97 references, market value was fixed @ Rs.23/- per Sq. Yard. Whereas, landowners have filed two appeals. State has also filed an appeal in one matter, numbers whereof have already been given above.
5. All the Letters Patent Appeals came up for hearing before this Court and, before addressing arguments on merits of the case, learned counsel for the appellant sought decision on an application filed under Order 41 Rule 27 of the Code of Civil Procedure for permission to lead additional evidence. It has, inter alia, been pleaded in Civil Misc. No.77 of 1994 in LPA No.110 of 1989 that in the case of Mulakh Raj Sapra, whose land was also acquired by means of the same notification and forms a compact block along with the land of the applicant, has been given compensation @ Rs.400/- per Sq. Yard vide order dated February 5, 1991 made by learned District Judge, Hisar and that since the land of applicant as well as that of Mulakh Raj Sapra has been acquired by means of the same notification and both the lands are of the same quality and potentiality, the assessment of market value of the land in the case of Mulakh Raj Sapra has a direct hearing on the case of the applicant and, therefore, in the interest of justice, applicant should be permitted to bring on record award of learned District Judge dated February 5, 1991 by means of Additional evidence along with the plan, showing the situation of the land of Shri Sapra and that of the applicant so that correct market value of the land of applicant may he assessed. This application was ordered to be heard along with the main case. In as much as the State too had filed RFA No. 1906 of 1991 challenging . the award in Mulakh Raj Sapra’s case, it became absolutely necessary to take up this RFA and other connected matters along with the LPAs aforesaid. On August 8, 2001,
we passed the following order in LPA No. 110 of 3989:-
“The applicant is seeking permission to adduce additional evidence in the form of judgment dated 5.2.1991 of District Judge, Hisar, enhancing compensation at the rate of Rs.400/- per square yard in respect of piece ofland measuring 7 kanals 9 marlas in the case of Mulakh Raj v. Haryana State, arising out of same notification dated 15.5.1979. We are informed that Regular First Appeal, arising out of the said case of Mulakh Raj is pending. Parties should give particulars of that appeal. List for hearing along with this part heard appeal on 13.6.2001.”
6. It may be mentioned here that the applicants in LPAs exclusively rely upon judgment of learned District Judge dated February 5, 1991 for giving them compensation @ Rs.40/- per Sq. Yard and in that manner, to modify order passed by learned Single Judge. In the circumstances fully detailed above, it is common case of learned counsel for the parties that in case State appeal in Mulakh Raj Sapra’s case is allowed, challenge to judgment of learned Single Judge in LPAs would fizzle out whereas converse shall also be true, i.e., the claimant/appellants shall also be entitled to same compensation, as assessed by learned District Judge in case State appeal is dismissed. That being the situation, it will be appropriate to deal with the State appeal, i.e. RFA No.1906 of 1991 and the appeal preferred by Mulakh Raj Sapra in RFA No.1286 of 1991.
7. To complete the chain of events, all that further requires to be mentioned is that in fixing the market value @ Rs.400/- per sq. yard and not following the earlier award of Additional District Judge modified by High Court and thus determining the market value of the land @ Rs.23/- per sq. yard, learned District Judge held that the piece of land acquired, which was owned by Shri Mulakh Raj Sapra, had its own significance and, thus, could not be compared with other cases. The findings with regard to the said piece of land having its own significance, read as follows :-
“In fact, a piece of land acquired has its own significance and cannot be compared with other cases. Its location depicts potentiality. The location of the land and the environments around are helpful in the assessment of the potentiality of the land. The land in question, as urged by the learned counsel for the petitioners, was very useful for commercial purposes. According to him, the Court could take a judicial notice of the fact though otherwise there is also evidence on record that Hissar has been developing city and has already developed much within and around. The learned counsel has urged on the basis of the localities, i.e., that Urban Estate behind Pushpa Cinema on Delhi-Hisar road and its front portion is best for commercial purposes.
Then according to him, the much more valuable land than the aforesaid in the Urban
Estate in the green park area of Hisar and thereafter the lands in the defence colony
where the land in question is located and is most valuable and the land could be used
for commercial as well as residential purposes. He argued that any person coming to
the Court could see that Board of Sapra Hospital, one of the best and top hospitals at
Hisar having commercial and residential potentialities around it. He has further urged
that the lands which are located in the heart of the City for commercial purposes are
well comparable with the land in question and the value of this land could not be less
than that of market of Hisar. New markets are coming up, in new localities while the
value of the old market, receding as the people living in these localities are coming up
in posh and new colonies instead of going to narrow lanes to approach the older shops
and commercial market. It may also be mentioned that Haryana Agricultural
University which is very important institution is almost opposite to the defence
colony. Green park area is also not far away. Mini Secretariat and Judicial Complex
are also on the same road of Defence Colony. In view of what has been said above,
statements of witnesses in brief may be reproduced :-
“PW3 Dr. M.R. Sapra, petitioner in chief:
13 Kanals 14 Marias of land of mine was acquired by the Government. The land acquired adjoins the South-East portion of Commercial complex of Defence Colony. This was the part of the hospital and expansion of the hospital had also to be shelved. I was getting site plan for utilising this land when I got acquisition notice. The hospital has 99 beds and I had plan to have another 50 beds expansion in this acquired land. I have to give up this plan and I am bearing the loss on that account. The acquired land adjoins the commercial complex of Defence Colony, Hisar, and it had/has the commercial potentiality in it. At the time of acquisition, the rate of this land was Rs.1,500/- per sq. yard. Adjoining my land certain shops, booths were auctioned in February, 1982. My this acquired land is just near Mini Secretariat, Haryana Agricultural University too. The land acquired had covered wall 650 yards in length and 7′-9″ in height. Approximately. Rs.56,000/- were spent for the construction of the boundary wall. The wall was constructed by me under the supervision of one contractor Shri Kanshi Ram Chhabra.” PW4 Kanshi Ram Chhabra, in chief stated :-
‘The land in dispute has got commercial potentiality as it adjoins the commercial centre of the Defence Colony. In year 1979, the rate of such lands in this locality was about Rs.1500/- per sq. yard”.
RWI Amar Nath Kanungo LAC Panchkula stated in cross-examination :-
“1 have been to the acquired land at the spot. Rajgarh Road is about 1 KM from mini Secretariat. It is correct that Shopping Centre of Defence Colony abuts Rajgarh-Hisar road. It is also correct that shopping centre of Defence colony also abuts on the road which goes from Rajgarh road to Sector 15 and Camp. This road goes from the acquired land of the petitioner. It is correct that just at the end of the shopping centre of Defence Colony, the acquired land of the petitioner starts. At the time of acquisition, Mini Secretariat and HAU were already in existence and were functioning.”
RW2 Parkash Chand, SDO Irigation stated in cross-examination :-
This land seemed to have been lying vacant for the last many harvests but I cannot tell the exact number. In the boundary wall, construction was going on. I can not say if this land was left for extension of hospital, but it was within boundary wall. I agree that land of the petitioner being adjacent to the Shopping Centre of Defence Colony, could be very well used for commercial purposes by the petitioner volunteered, if the Government allows.”
The learned Land Acquisition Collector in the case in hand has not at all considered the potentiality of the land in question and the utility to which it could be put to. The Land Acquisition Collector has not applied his mind at all and ii appears has underestimated the value of the land ridiculously low. The various transactions are already mentioned above which Urban Development Authority has by itself sold the land at much higher rate than the rate awarded to the petitioner-claimant.”
8. After holding that the land, subject matter of acquisition, belonging to Mulakh Raj Sapra, had special features because of its location, learned District judge relied upon award, Ex. AZ passed by learned Additional District Judge, Hisar, pertaining to land of Adampur, for which compensation was assessed @ Rs. 400/- per sq. yard as also judgment of this Court in Ravi Kanta v. Land Acquisition Tribunal, Hisar, AIR 1990 Punj & Hary. 305 wherein compensation for the land of Hisar City was assessed @ Rs. 900/-per sq. yard. Learned District Judge also relied upon auction dated February 23, 1981 vide which Booth No. 13 was auctioned by the HUDA at Rs. 84,000/- for an area of @ Rs 22,69 sq. yard, as also been auction of some plots near the acquired land in the defence colony as also award, Ex. Al passed by the learned Additional District Judge, Hisar, dated January 31, 1979 wherein market value was assessed @ Rs. 150/- per sq. yard, which, we are told during the course of arguments, was enhanced to Rs. 800/- per sq, yard by this Court in RFA No. 2019 of 1979 decided on October 31, 1989 filed by the claimants.
9. Mr. Surya Kant, learned Advocate General, Haryana, appearing for the State of Haryana in RFA No. 1906 of 1991 and all other connected matters, vehemently contends that the entire land, subject matter of acquisition forms one compact block and there were no special features that could distinguish the land of Mulakh Raj Sapra from the remaining land, subject matter of acquisition and, therefore the entire land needed to be evaluated at the same rate and further that judgment Ex. AZ pertaining to Adampur, which is 38 Kms. away from the land in question, was wholly irrelevant in determining the market value of the land and so would be the position of Ex. Al, award pertaining to exclusively commercial area as also land, subject matter of decision in Ravi Kanta’s case (supra), which is located in the heart of the town. In support of his contentions learned Advocate General, besides, of course, pin-pointing the land, subject matter of acquisition in Mulakh Raj Sapra’s case viz-a-vis land, subject matter of awards, which have been relied upon, in site plan prepared during the course of arguments, authenticity of which is not disputed by learned counsel for the claimants/landowners, also urges that Mulakh Raj Sapra himself claimed compensation only @ Rs. 150/- in his original reference under Section 18 which was, however, later on wrongly allowed to be amended to inflate it to Rs. 1500/- per sq. yard,
10. With a view to appreciate the contention of learned Advocate General, it would be appropriate to identify the land, subject matter of acquisition, belonging to Mulakh Raj Sapra and the land of various awards that have been relied upon to assess the compensation @ Rs. 400/- per sq. yard by learned Additional District Judge, Hisar, prepared during the course of arguments which tallies with Ak-sajra produced on records by the State and other site plans that have since been produced by the claimants and, as mentioned above, authenticity of which has not been disputed during the course of arguments, is permitted to be placed on record. We are referring to the lay out plan and not to the site plans and Ak-sajra which have since been exhibited as the former clearly depicts position of all instances taken into consideration and position of all relevant instances vis-a-vis land in question has been clearly depicted therein.
11. Admittedly, the entire land, subject matter of acquisition is within the municipal limits of Hisar. On the extreme left of the lay out plan, there exists Delhi-Hisar highway. From the inter-section of Delhi-Hisar road and Rajgarh road, Hisar town extends towards North. Jhambeshwar Market, subject matter of acquisition in Ravi Kanta’s case (supra) is in the heart of Hisar town at a distance of 1.30 Kins from the fountain chowk which is inter-section of these two roads. The land, subject matter of acquisition belonging to Mulakh Raj Sapra is at a distance of 1.70 Kms from the fountain chowk on Ragarh road which is towards South of said chowk. The land of Mr. Sapra is comprised in Khasra Nos. 857/1 measuring 2 kanals 10 marlas, 459 min measuring 18 marlas and 460 measuring 10 kanals 6 marlas. This land is not a compact block and is located at two different places. Whereas, Khasra No. 460 is located 175 meters deep from Rajgarh road, other two khasra numbers are further at a distance of about 200 meters towards left hand side of khasra No. 460. These two pieces of land have been shown in red colour in the lay out plan. Insofar as award Ex. Al, that has been relied upon by learned District Judge, is concerned, same is at a distance of about 0.25 Km from the fountain Chowk and once again is in thick of the commercial area. The old Court complex, office of D.I.G., residence of Superintending Engineer, H.S.E.B., office of H.S.E.B. and a colony, known as Lajpat Nagar, are in the very close vicinity of the land, subject matter of award, Ex. A1 and the same also bang on Rajgarh road. A portion of it touches the Rajgarh road itself. Insofar as land, subject matter of award, Ex. AZ is concerned, same has naturally not been shown in the Jay out plan as the same is located at the distance of 38 Kins, from the land, subject matter of acquisition. It is significant to note that all the constructions, be it in the shape of Defence Colony, Secretariat or other buildings, or for that matter, Haryana Agricultural University, are oil Rajgarh road itself. Insofar as land, subject matter of acquisition is concerned, same being at least 175 meters deep from the road, was lying vacant and was being used for agricultural purposes at the time when notification under Section 4 was issued. Sapra Hospital itself is at a distance of 124 meters deep from the aforesaid road. It is, however true, that Bishnoi Colony, Mini Secretariat and Haryana Agricultural University were in the close vicinity of tile land in question and all these buildings had come up before notification under Section 4 was issued. However, but for Bishnoi Colony, all colonies are located right on the side of the road. It is clear from a bare look of lay out plan that the construction in the shape of various buildings, right on the road is thicker near the town and keeps on tapering and becoming thin and thin further from the main town. A usual pattern of buildings along the main road, thicker near the town and thinner away from the town is quite decipherable from the aforesaid lay out plan.
12. Having identified the land, subject mater of acquisition, belonging to Mulakh Raj Sapra vis-a-vis instances, culminating into awards, referred to above, time is now ripe to evaluate the contentions of learned Advocate General, Haryana, as noted above. Insofar as award. Ex. AZ is concerned, same was rendered by learned Additional District Judge on November 10, 1988 pertaining to notification under Section 4 issued on March 3, 1981. The land, subject matter of acquisition in the case aforesaid, is situated at Mandi Adampur, a town at a distance of 38 Kms. This instance, in our view, is wholly incomparable and irrelevant and could not at all be relied upon in assessing the market value of the land in question. Ex. Al is award of learned Additional District Judge, Shri S.K. Jain, dated January 31, 1979, pertaining to acquisition of land, for which notification under Section 4 was issued on August 20, 1975. Learned Additional District Judge assessed the market value @ Rs. 150/- per sq. yard, which, as mentioned above, was enhanced vide order dated October 31, 1989 in RFA No. 2019 of 1979 to Rs. 8007- per sq. yard by this Court. This land, as mentioned above, is only 25 Km from the fountain chowk and is in the hub of commercial activity and, as referred to above, is right on the road. The land, subject matter of acquisition belonging to Mulakh Raj Sapra is 1.70 Kms. from fountain Chowk and 175 metres deep inside the road. It is significant to mention that it is even at a distance from the Defence Colony, i.e., where the Defence Colony ends at its breadth inside the road. The distance of Defence Colony from where its breadth ends and Khasra No. 460, pertaining to Mulakh Raj Sapra, is about 20 meters. In other words, land in between Defence Colony and beginning portion of Khasra No. 460 was lying vacant and so. of course, was the position with regard to the entire remaining land. The other khasra number of Mr. Sapra is even deeper, position whereof has already been mentioned. Award, Ex. Al, in our view, would not at all be comparable with the land in this case. The remaining instance relied upon by the learned District Judge pertains to Jambheshwar market, subject matter of acquisition in Ravi Kanta’s case (supra). The said instance pertains to the very town itself which, as mentioned above, is at a distance of 1.30 Kins from the fountain chowk in an entirely different direction and different road. That too, in our view, could not be relied upon in assessing the market value of the land in question.
13. Awards Ex.A-1 and Ex.A-Z and the one rendered in Ravi Kanta’s case (supra) cannot possibly be comparable instances to evaluate the market value of the land, subject matter of the acquisition in the present case. All that still needs to be considered is instances of small booth in the Defence Colony and, after development, in the acquired area itself, i.e.. Sector 15-A, Urban Estate, Hisar, these sales were by way of an open auction- The evidence in Muiakli Raj Sapra’s case with regard to said sale of booths, besides his own statement, can be gathered from the statement of Om Parkash, Junior Engineer, HUDA. Hisar, PW-2, and Raj Kumar, Clerk, Estate Office, HUDA. Hisar, PW-5. Om Parkash, PW-2, stated that he had brought auction record of Booths 13. 14, 15 and 17 situated in the Commercial Centre, shown in Ex. A-2, which is a copy of the plan of the Commercial Centre and that Booth No. 13 was auctioned for an amount of Rs. 84,000/- on February 23, 1982 and the area of the said booth was 22.69 sq. yards. To a specific question put to him by the Court, he staled that sewerage, metalled road and pavements were to be the responsibility of HUDA for each booth whereas booth was to be constructed by the owner. He also stated that he could not give the development charges of the commercial booths as the record of the same was not with him. Learned Distinct Judge disallowed the prayer of the counsel for Mulakh Raj Sapra to direct the witness to bring the said record by observing thus:-
”Since the matter relates to an exclusive commercial area, so, I do not find any
relevancy to summon the same. Request disallowed.”
In cross-examination, the said witness stated that he did not know what was the condition of the land on which Sector 15-A had been set up. He also stated that he had seen Dr. Sapra’s Nursing Home. Same must be 1 Km. from the Court. He further stated that he could not state as to whether the land was agricultural land or a developed area at the time of its acquisition. Raj Kumar, PW-5. stated that commercial booths in Defence Colony for the first time were auctioned on January 30, 1979, which were of the size of 45.38 sq. yards and 22.69 sq, yards. The auction price of booth measuring 22.69 sq. yards varied from Rs. 10,000/- to Rs. 20,300/- Thereafter, auction was held on February 23. 1982 for booths of 22.69 sq. yards and price fetched for such a booth was Rs.65,000/- For a booth of 45.38 sq. yards auction price fetched was Rs. 1,26,000/- for a corner plot. Auction was also held on October 7, 1982 but this was for shop-cum-flat. Auction price was Rs. 1,71,600/’- but the area has not been mentioned. This witnesses in his cross-examination stated that development charges were included in the above price. Corner plots usually fetched a better price than the other plots. Auction was held at different times because in one auction bidders were not found for the booths. He further stated that auction was started after the residential colony had come up. Road in front of market of Defence Colony goes towards Sector 15, which has been developed by the HUDA. That road further connects Kaimri road and the road, which goes to Sector 15, has gone by the side of four walls of Sapra Hospital, Thakur Dass Chopra, SDO, HUDA, Hisar, PW-6, only deposed with regard to development charges. He stated that he prepared statement regarding development charges incurred with regard to booths uptil so far in Defence Colony, Hisar. He admitted in his cross-examination that after acquisition of the land, the HUDA authorities had provided facilities, like water supply, sewerage, road, electricity, parks, open spaces, new passages and other facilities of common use and that approximately 40% of the total area acquired was left apait for development purposes.
14. The evidence of the witnesses, who deposed with regard to auction of booths/sites, be it Defence Colony or Sector 15-A, i.e., acquired land itself, would
clearly demonstrate that besides the fact that the sale by way of auction necessarily involved competition, the same was of small areas in already developed colony(s), 40% of the total acquired area was left open for facilities, like grounds, parks, passages and other facilities of common use by the residents of the locality and lot of money must have already been spent in providing sewerage, roads, water supply, electricity etc. Auction of booths/sites in Defence Colony may have been pripr to issuance of notification under Section 4 of the Act in the present case but sale by way of auction in Sector 15-A was, naturally, after the said acquisition. To be precise, insofar as first auction of booth in Defence Colony is concerned, the same pertains to January 30, 1979, just a few months before the notification under Section 4 of the Act of 1894 came to be issued. All other sale auctions in Defence Colony are far after the notification under Section 4. Insofar as sale auction in Sector 15-A, i.e., acquired land, are concerned, the same came about in 1982, natural, all sale instances which had come into being after notification under Section 4 of the Act was issued could not be taken into consideration in evaluating market value of the land. Even, the one that came about just preceding the notification issued under Section 4 of the Act, in our view, cannot be held to be comparable for variety of reasons. As mentioned above. Defence Colony is located right on Hisar-Rajgarh road whereas, the land, subjecf matter of acquisition, starts from the distance of 20 meters from where Defence Colony ends in its breadth. The area in between the Defence Colony and the land, subject matter of the acquisition, was lying vacant and was used for agricultural purposes at the time of issuance of notification under Section 4 of the Act. That apart, the auction sales pertain to already developed colony having all infrastructures and all kinds of facilities already available. Still further, it was a case of an auction sale necessarily involving an element of competition.
15. None of the awards was taken into consideration by the learned District Judge in evaluating the market value of the land at the rate of Rs. 400/- per sq. yard is such that could guide the Court in assessing proper and fair market value of the land, subject matter of acquisition. In other words, no reliance at all could be placed upon Ex. Al. Ex AZ or for that matter auction sales of booths in Defence Colony and Sector 15-A, Urban Estate, Hisar. That being the position, there was no material before the Court from where market value @ Rs. 400/- per sq. yard could be assessed. The only relevant material before the Court could be judgment rendered by learned Additional District Judge in 97 references, which were consolidated, culminating into LPAs that are being presently disposed of by us. It is significant to note that but for Ex.Al, the award, pertaining to land situated very close to fountain chowk, no other award was even relied upon by the claimants in the LPAs. In other words, the claimants in their appeals aforesaid did not produce on records awards pertaining to Adampur Mandi, sate of booths by way of auction in Defence Colony, Sector 15-A, Hisar or for that matter, award pertaining to Jambheshwar Market which, as mentioned above, is located in thick of Hisar town. Insofar as reliance placed upon by them on Ex. AJ is concerned, same came up for discussion by learned Single Judge. In evaluating the market value @ Rs.23/- per sq. yard, learned Single Judge specifically rejected reliance on Ex.Al which in LPAs, is Ex.PtS. Relevant portion of judgment of learned Single Judge reads thus:-
“The primary submission of the learned counsel for the appellant is that lower court was not justified in ignoring the sale instances Exhibits P/1, P/3, P/4, P/9, P/11 , and an earlier award of this Court, Exhibit 18. The reasons for not accepting these instances have been stated in paragraphs 14 and 15 of the judgment. Having perused the same in the light of the submissions of the learned counsel, I find no material to disagree with the conclusions recorded by the lower court. All these sale instances relate to the sale of small and minimal areas of 200 sq. yards or so and that too in the years 1968 to 1978, i.e.. much earlier to the present notification under Section 4 of the act. Vide award Exhibit P. 18, the acquired land was evaluated at Rs. 150/- per sq. yards. I, however, again find no comparison in the two lands, i.e., the land covered by
the said award and the presently acquired land, as a matter of fact, the two lands are intervened by a Rajbala (minor) providing no bridges or approaches from one side to the other. It is only through the main road i.e. Hisar-Rajgarh Road that the presently acquired land can be approached, if one has to start form the side of the main city Hisar”.
16. Learned counsel for the parties didn’t dispute existence of a Rajbaha (minor and rightly so as to bare look at Ak-sajra and other plans, brought on records of the case, would confirm existence of Rajbaha (minor) at a place specified by the learned Single Judge.
17. In assessing the market value @ Rs. 23/- per sq. yard, learned Single Judge observed as follows :-
“As a last resort learned counsel seeks reliance on an earlier judgment of mine in RFA No. 595 of 1979 (Sheo Lal and other v. The State of Haryana and another), decided on October 12, 1981, pertaining to the acquisition of 333.36 acres of land acquired for a similar purpose, i.e. for the setting up of a commercial-residential Urban Estate by the Haryana Urban Development Authority. That land was acquired in pursuance of a notification published under Section 4 of the Act on January 30, 1973. The entire land abutted the Hisar-Delhi road. It to fell within the municipal limits of Hisar, as is the case in the instant appeals. It had also been treated by the Collector in the same manner, i.e. the had categorised the land into three blocks for purposes of evaluation. Of course, vide the said judgment, I reduced the number of blocks to two only. For ‘A’ Block, the market value was fixed at Rs. 23/- per sq. yard and for ‘B’ Block, it was determined at Rs. 16/- sq. yard. Having gone through the judgment, I am satisfied that the land forming Block ‘B’ in that case and the presently acquired land had almost similar potential for being utilised, the residential or commercial purposes. In order to appreciate this, the following observations made in that judgment deserve to be noticed:-
“The entire land undisputably falls within the municipal limits, land abutting the main highway and the one lying between the road branching off from this highway near Dabra Chowk and the two colonies known as M.C. and D.C. colonies, form Block ‘A’. Across the main highway (generally referred to as the G.T. Road by the parties as well as by the lower court), there are some more constructions, such as, Model Town, Jindal Hospital, Jindal Factories and another colony developed by the Improvement Trust, Hisar, known as Scheme No. 6. Besides these constructions, the acquired area along the G.T. Road is too dotted by a number of construction, either residential or factory niodoggs. As per the evidence on record, a good number of factories have been constructed upto a distance of a few miles beyond the acquired land, to residential colonies known as D.C. and M.C. colonies had already been established by the time, the notification under Section 4 of the Act was issued.”
A bare look at the site plan Exhibit P-12, the authenticity or correctness of which is not in doubt, would show that the presently acquired land too had similar developments all around it and had similar advantages or disadvantages as was the case in Sheo Lal’s case (supra). I am, therefore, satisfied that the said award does furnish the most relevant and reasonable basis for the determination of the market value of the presently acquired land.
It is, however, submitted by the learned counsel for the appellants that on account of the time lag between the two acquisitions i.e. about seven years, the appellants are entitled to a rise over and above the rate determined for Block ‘B’ land in that case. The submission is apparently not devoid of merit. It is not disputed by the learned counsel for the respondents even that this court has in a number of cases taken judicial notice of the unending phenomenon of continuous rise in the prices of lands in the vicinity of the growing and expanding towns like Hissar and on that basis, has ordered enhancement of compensation at the rate of one rupee per sq. yard per year. Following
the said principles, I determine the market value of the appellant’s acquired land at Rs. 23/- per sq. yard, i.e. Rs. 16/- per sq. yard as was determined in Sheo Lal’s case (supra), for ‘B’ Block land plus Rs. 7/- per sq. yard for the seven years lime lag between the two acquisitions.”
18. From the evidence, as has been fully discussed above, we are of the firm view that no finding that the land, subject matter of the acquisition, had a potential of being converted into commercial area could possibly be returned in this case. The land, no doubt, had potential of being converted into residential area and in that context, it can, at the most be said that in case it was developed into residential area, it would have some potential for commercial activities as well, which however, shall be incidental to the dominant purpose, i.e. conversion of area into residential one.
19. Learned counsel representing the appellants, be it Letters Patent Appeals or Regular First Appeals, still urge that land, subject matter of acquisition, had potential of being converted into commercial use and further that instances of auction sales in Section 15-A or Defence Colony could not be altogether ignored. The first contention pertaining to potential of the land as a commercial use needs to be rejected on the grounds, mentioned above, and in addition thereto in view of the fact that the land indeed came to be converted by the concerned authorities or residential purposes and not for commercial purposes. We will discuss the judicial precedents cited before us in support of respective contentions of the parties pertaining to comparability of auction sales later, as at this stage, we would like to refer to claim of Mulakh Raj Sapra as originally made by him and later on amended after pendency of the case for number of years. The original application under Section 18 of the Act was filed on July 13, 1981. Paragraphs 8 and 14 of the same are reproduced as under :-
“8. That the commpensation offered to the applicant is very inadequate and does not represent the market value of the land to which the applicant is entitled. The market value of the land al the time of its acquisition was Rs. 150/- per square yard. The applicant is entitled to compensation at this rate.”
“14. That the applicant claims as under :-
(i) Rs. 150/- per square yard as market price of the land and detailed in the application. (The area acquired is much more on the spot than given in the record of the Land Acquisition Collector).
(ii) The compensation for four walls = Rs. 55,600/-.
(iii) Compulsory acquisition charges being 15% as solatium charges,
(iv) Interest on the above amounts from the date of possession to the date of payment of enhanced compensation.”
20. Even though this application under Section 18 of the Act came to be filed on July 13, 1981, there was no reference, at all, of any auction sale and as mentioned above insofar as auctions in respect of Defence Colony are concerned, one such auction had certainly come into being before issuance of notification under Section 4 of the Act. An application for amendment under Order 6 Rule 17 CPC seeking permission to enhance the claim from Rs. 150/- per sq. yard to Rs. 1500/- per sq. yard was filed on January 1, 1984. This application was allowed on March 26, 1984. All that has been mentioned in the application aforesaid, is that compensation was claimed at the rate of Rs. I500/- per sq. yard but due to typographical mistake, it was mentioned as Rs. 150/- per sq. yard. This mistake came into light at the time of preparation of the case for evidence. A mention of auction of booths from Defence Colony was made for the first time in this application seeking amendment of the application for reference under Section 18 of the Act. Even though the application aforesaid has been allowed, but in our view, it was not a case of typographical mistake at all. Learned District Judge, while allowing this application on March 26, 1984, did mention the contention raised on behalf of the Stale that it could not be a case of typographical mistake, as before the Land Acquisition Collector the claimant had asked compensation at the rate ranging from Rs. 100/- to Rs. 500/- per sq. yard, but, yet this application was allowed by simply mentioning that it would not be proper to comment as to what is the effect of the claimants having claimed compensation at a lesser rate before the Land Acquisition Collector, at this stage. Nothing at all with regard to contention of learned State Counsel, as noted above, was said in the final award that came to be passed by the learned District Judge. Perusal of award of the Land Acquisition Collector would, indeed, show that a claim ranging from Rs. 100/- to Rs. 500/- per sq. yard was made before the Land Acquisition Collector and no more. Therefore, we are of the view that application for amendment made by Mr. Mulakh Raj Sapra after such a long time, on made up grounds, should have been rejected.
21. Mr. R.S. Mittal, counsel representing the appellant, relies upon The State of Madras v. A.M. Nanjan and Anr., AIR 1976 SC 651, Union of India and Ors. v. A. Ajit Singh. (1997-3)117 P.L.R. 877 (S.C.), Sudhir Kvmar v. State of Punjab and Anr., (1993-2)104 PLR 603, State of Maharashtra and Anr. v. Abdul Saltar Abdui Wahab and Ors., 1994 LACC 529 and LAC N.A.C. Manimajra, U.T. Chandigarh v. Dharam Pal, (1999-3)105 PLR 471 in support of his contention that auction sales are comparable instances and, thus, can not be altogether ignored in assessing the market value of the land at the time of issuance of notification under Section 4 of the Act and the claimants are entitled to market value represented by such auction sales minus a cut that the Court may deem fit in the facts and circumstances of each case. The first two judgments in The State of Madras v. A.M. Nanjan and Anr. (supra) and Union of India and Ors. v. A. Ajit Singh (supra), in our view, are not at all relevant in determining the question as debated before us. The same only recognise general principles of assessing the market value. Whereas, in State of Madras v. A.M. Nanjan it was held that awards given by the Collector are relevant, in Union of India v. A. Ajit Singh a mention of the factor that need to be taken into consideration’ by the Land Acquisition Collector is developed area was made.
22. !n Sudhir Kumar’s case (supra), which was rendered by the learned Single Judge of this Court, reliance indeed was placed upon auction sales but the facts in the said case were peculiar and thus need a necessary mention. Government of Punjab issued a notification under Section 4 of the Act on August 6, 1973 for acquisition of land measuring 35 acres, 1 kanals 14 marlas belonging to the appellant in the case aforesaid. This notification was challenged by means of Civil Writ Petition No. 3465 of 1973, which was accepted by this Court and the notification was quashed only as regards the petitioner in the said writ petition on November 19, 1976. This portion was, however, later acquired on March 7, 1979 and in the meantime rest of the land, regarding which there was no challenge, had already been developed into a grain market. A number of years had, thus, rolled by when notification under Section 4 of the Act for the first time came into being and when ultimately land of the appellant, in the said case, was acquired. Meanwhile, as mentioned above, remaining land had already developed into a commercial area. It is in that context that auction sales in the same market were held to be relevant. We are of the view that judgment in Sudhir Kumar’s case (supra) can not be relied upon as the same is clearly distinguishable on the facts of the present case. In State of Maharashtra and Anr. v. Abdul Sattar Abdul Wahab and Ors. (supra), reliance was placed upon Ex. 52. which was sale instance from City Centre and the acquired land was also from City Centre. Paragraph 16 of the judgment would make the position clear. The same reads thus:-
“As discussed above, when it is proved that acquired land is situated in the centre of the city, though it is put in use as an agricultural land, it is undoubtedly a comparable land to the land covered under the sale instance Exhibit 52. We have already pointed out that there is absolutely no evidence to show that land covered under sale deed Exhibit 52 stands on a different footing. Both the lands are put in for agricultural use but situate at central place in the city….The land covered under the sale deed Exhibit 52 is the evidence of comparable sale with a view to finding out a reasonable market price of the acquired land. The court below was correct in its approach in determining the value of the acquired land on basis of sale instances produced by the claimants at Exh. 52.”
This judgment again, in our view, is distinguishable on the facts of the present case and
further that it does not appear to be a case of an auction sale.
23. In N.A.C. Manimajra, U.T. Chandigarh v. Dharam Pal’s case (supra), learned Single Judge of this Court, in fact, rejected the contention of comparability of auction sale instances in a developed area. Paragraph 14 of the judgment reads thus:-
“This evidence at the very outset appears to be very attractive to the advantage of the claimants, but in fact when examined in depth, it is not so. These are developed commercial plots and shops which have been sold by the Administration after developing the area completely and constructing the shop-cum-offices in accordance with the development/zonal plans. AW4 in his cross-examination fairly conceded that shops were sold after development and providing complete infrastructure. The claimants did not put anything in the examination-in-chief of this witness which could show that the acquired land is just opposite to these shops and has the same infrastructure or development as the shops, which were put to auction.”
The market value in the case aforesaid was assessed on the basis of an earlier award of the Court even though some increase was given and in paragraph 20, it was observed that the authorities were themselves auctioning the shop-cum-flats across the road at a very high rate. This observation was made only with a view to give some increase from the award, which was actually relied upon and compensation worked out on the basis thereof.
24. In our view, auction sales normally should not be held as comparable instances, particularly when such auction sales are in a developed area with all infrastructures and where land, subject matter of acquisition is all vacant or agricultural one. The view that we are taking would find support from a judgment of Supreme Court in P. Ram Reddy etc. v. Land Acquisition Officer etc., 1995 LACC 184, wherein it has been held that auction or bid of a developed plot cannot be equated with acquisition of land which may either be agricultural or may have been come up as haphazardly developed colony. This view has also expressed by learned Single Judge of this Court in Pawan Kumar and Anr. v. Land Acquisition Collector and Ors., 2001(1) RCR (Civil) 598. We are informed, during the course of arguments, that the decision of the learned Single Judge in Pawan Kumar’s case (supra) has since already been upheld by us in a Letters Patent Appeal that came to be filed against the said judgment.
25. Before we may part with this order, we would like to mention that the land, subject matter of the acquisition in Mulakh Rah Sapra’s case may be very useful and, therefore, valuable for him as the land, that was acquired, adjoined the hospital that he was already running and it is his positive case that he had already planned for development of the hospital by providing extra beds but that, in our view, is not enough to hold that it had the potential of being converted into a commercial use. Usefulness and importance of land for the owner himself is not a factor that can be taken onto consideration while assessing the market value of the land as would be clear from reading of Section 23 of the Act. In determining the amount of compensation only Clauses 1 to 6 as mentioned in the said section and nothing more. Concededly, urgent need of the land for the owner himself does no find place in any of the clauses mentioned in Section 23.
26. In Tek Chand (dead) by LRs and Ors. v. Union of India and Ors., 1990(4) Supreme Court Cases 495, it was held that in land acquisition proceedings compensation has to be fixed on the basis of a hypothetical sale at or about the time of the notification under Section 4 of the Land Acquisition Act of similar land by a willing seller to a willing buyer, there being no other factor like urgent need of money or urgent need of the land for a special purpose and so on which might depress or augment the price. In determining the compensation the ability of a particular party or his lack of ability to develop the land and to realise its potential, cannot be regarded as a relevant circumstance.
27. The Land Acquisition Collector rendered his award on June 11, 1981 and learned Advocate General contends that claimants are not entitled to additional compensation of 12% per annum as provided under Section 23(1-A). This contention of the learned Advocate General could not be controverted during the course of arguments. That being the situation, Mulakh Raj Sapra would not be entitled to additional amount @ 12% per annum under Section 23(1-A). This relief has been granted to the other claimants, giving rise to LPAs but the said appeals have been filed only by the claimants and not by the State. We have, therefore, no choice but for to leave it as it is in those cases.
28. From the totality of the “facts and circumstances of the case, as have been fully detailed above, we finding considerable merit in the State appeal bearing No. 1906 of 1991 and, therefore, allow the same. Mulakh Raj Sapra shall be entitled to compensation at the same rate that has been allowed by learned Single Judge, giving rise to LPAs, bul he shall not be entitled to additional amount @ 12% per annum under Section 23(1-A) of the Act. Success of the State appeal would naturally result into dismissal of RFA No. 1286 of 1991 filed by Mulakh Raj Sapra. Same is, thus, dismissed. All the Letters Patent Appeals, which have since been filed by the landowners are also dismissed, thus, upholding the order of learned Single Judge. Insofar as RFA Nos. 2346 and 2371 of 1989 are concerned, same are dismissed and the claimants shall be entitled to compensation as assessed by the learned Additional Single Judge, i.e. @ Rs. 23/- per sq. yard. However, State appeal bearing No. 2823 of 1989 would stand partly allowed and claimants in this case would not be entitled to additional amount @ 12% per annum as provided under Section 23(1-A).
Parties in all the mailers, be it RFAs or LPAs, are left to bear their own costs.
Arun B. Saharya, C.J.