JUDGMENT
Nirmal Yadav, J.
1. These are two appeals filed under Section 54 of the Land Acquisition Act, 1894, hereinafter referred to as the Act, challenging the judgment dated 30,11.1989 passed by the: learned District Judge, Jalandhar on a reference made to him under Section 18 of the Act. The learned District Judge has enhanced the compensation from Rs. 1,000/- per marla to Rs.3,000/- per marla. Feeling dis-satisfied therefrom, the claimants as well as the Municipal Corporation, Jalandhar have filed the presents appeals.
2. Brief facts of the case are that the State of Punjab vide notification dated 19.4.1983 issued under Section 4 of the Act, acquired total area of land measuring 35 kanals 14 marlas in the revenue estate of village Boot, Tehsil and District Jalandhar, for development of a Municipal Park. However, while issuing declaration under Section 6 of the Act, an area measuring 7 Kanals 14 Marias was left and excluded out of the acquired land, as there were some unauthorised structures constructed thereon. Therefore, an area of 28 kanals was actually acquired. The Land Acquisition Collector, vide award dated 18.9.1986 awarded compensation at the rate of Rs. 1,000/- per marla. The claimants dissatisfied with the award of the Land Acquisition Collector, sought reference under Section 18 of the Act wherein it was pleaded that the acquired area is situated within Municipal Limits of Jalandhar City and abuts the Jalandhar-Nakodar road. It was further pleaded that the land adjacent to the acquired area is residential and commercial establishments. The area is situated near the biggest hide and leather market of India. It was further urged that the claimants’ area has been bifurcated on account of the area left as un-acquired. There is no passage or road to approach the remaining area and, therefore, the claimants should be paid compensation to the extent of 20% on account of bifurcation. The Municipal Corporation, Jalandhar, however, pleaded that the land was acquired for Municipal Park and award was announced in the presence of the claimants who had given their consent and accepted the compensation awarded by the Land Acquisition Collector.
3. The District Judge, after taking into consideration the evidence and the facts on record enhanced the compensation to Rs.3,000/- per marla. The claimants were also held entitled to additional amount at the rate of 12% per annum for the period from the date of notification under Section 4 of the Act, till the award in accordance with Section 23(1-A) of the Act, solatium at the rate of 30%, interest at the rate of 9% per annum for one year from the date of award and at the rate of 15% per annum for a period one year after the award of the Collector till payment.
4. I have heard learned counsel for the parties and have gone through the records.
5. Learned counsel for the appellant-claimants argued that the acquired land is situated within the Municipal limits of City, Jalandhar. The land is contiguous to Jalandhar-Nakodar road. There is main hide and leather market of Buta Mandi which adjoins the acquired land, Therefore, the land has potential to develop into commercial area. The Pioneer Sports Factory is situated across the road in front of the acquired land. Adjacent to the Pioneer Sports factory, New Fodder Market is located, which had been developed by the New Mandi Township. Television tower is only one kilometer from the acquired land towards Nakodar. Between the acquired land and T.V. tower, several cold-stores and factories are established. It is further pointed out that on both sides of the Nakodar road, commercial establishments have been developed. In support of his submission, the learned counsel has placed reliance on site plan Ex.A-1. The area acquired is indicated in red colour. Jalandhar City has been shown in green lines, whereas village Boot has been shown in yellow colour. Just opposite to the acquired land and on the other side of the Nakodar road is the Post Office and Luxmi Commercial Bank. Adjacent to the Pioneer Sports Factory, Chara Mandi (Fodder Market) has been shown in yellow colour. Guru Teg Bahadur Colony is located just behind the acquired land. The learned counsel pointed out that Improvement Trust, Jalandhar had sold incomplete booths in the area of Guru Bahadur Nagar,which is shown in blue colour in the site plan Ex.A-1.
6. The learned counsel referred to the statement of claimant Harinder Singh who stated that the Improvement Trust had sold the area marked blue at the rate of Rs.32,000/- per marla in the year 1980. The acquired land could also be utilised for the construction of shops as the front of the acquired land towards Nakodar road is about 400 feet. The learned counsel, therefore, argued that in view of commercial establishments constructed near the land in question, no doubt is left that acquired land has the potentiality for the development of commercial area. The learned counsel argued that when there is a property with the potentiality of more profitable use, it will command better price than the property without such potential. He argued that the District Judge was wrong to assess the market value only on the basis of sale instances of plots sold by the Jalandhar Improvement Trust. The learned counsel referred to the judgments of the Supreme Court in the cases of Hasanali Walimchan (Dead) by Lrs. v. State of Maharashstra , The Collector, Raigarh v. Dr. Harsingh Thakur and another and vice versa ; P. Ram Reddy etc. v. Land Acquisition Offleer, Hyderabad Urban Development Authority, Hyderabad etc. and State of Haryana v. Ram Singh (2001-3)129 P.L.R, 299 and a judgment of this Court in the case of The State of Punjab, through the Secretary, Power and Irrigation Deptt. Punjab, Chandigarh v. Surja Ram and Ors. (1988-1)93 P.L.R. 544, to support his argument that the market value should be calculated not only on its existing use, but taking into consideration its further potential also.
7. The learned counsel further argued that the District Judge erred in ignoring the report of AW-4 B.K.Singhal, the approved Valuer and Architect and has not given any cogent reasons for ignoring the same. He further argued that the District Judge has also not given the benefit of the fact that the acquired land consists of bigger marlas. He pointed out that one marla of the acquired land is equal to 272 square feet, whereas normally one Maria consists of 207 square feet. The learned counsel referred to the statement of AW-2 Sohan Lal Patwari, who stated that one Maria of the acquired land is equal to 272 square feet. If this fact is taken into consideration, the compensation would be enhanced to a considerable extent.
8. The learned counsel further argued that the notification under Section 4 of the Act was issued on 19.4.1983 and the sale instances relied upon by the District Judge relate to the year 1980. However, the learned District Judge has wrongly mentioned the said auction to be held in the year 1981. It is argued that the District Judge failed to apply the principle of progressive rise in the rates of the land on account of escalation in prices. The learned counsel referred to two judgments of Apex Court and of this Court in the cases of Om Parkash (D) by LRs and Ors. v. Union of India and Anr. (2004-3)138 P.L.R. 727 (S.C.) and Sudhir Kumar v. State of Punjab and Anr. (1993-2)104 P.L.R. 603, wherein an increase of 10% every year progressively from 1963 to 1973 and thereafter @ 12% every year progressively upto the date of acquisition, was held to be right.
9. The last point argued by the learned counsel is that the claimants have not been compensated for the severance of their land which has been totally rendered in accessible on account of the present acquisition. The learned counsel pointed oat that initially notification was issued with regard to an area of 35 Kanals 14 Marias, but later on an area of 7 Kanals 14 Marias was left out of the acquisition. The left out area is not accessible from any side. It is argued that the District Judge has totally ignored this issue, though this ground was specifically raised by the claimants in their reference. The learned counsel argued that on account of severance, the value of the un-acquired land has diminished and, therefore, the claimants are entitled to at least 50% of the market value of the un-acquired land. In support, the learned counsel referred to a judgment of this Court in the case of Punjab State and Anr. v. Gurbachan Singh and Ors. 1989(1) Revenue Law Reporter 158.
10. On the other hand, learned counsel for the Municipal Corporation, Jalandhar, argued that the land in question is basically agricultural land. The land was actually a pond along with certain pits on the entire area. Some portion of the land was in possession of the weaker section of the society and., therefore, that area was left out of acquisition. The land has been acquired for developing a park, which has already been developed on the acquired land. The learned counsel pointed out that the place was used for tanning of hides and skins and, therefore, there was not much potential of the acquired land to be developed as a commercial site. Because of such unhygienic conditions, the Municipal Corporation decided to develop the park abutting the village. Actually the land falls in the revenue estate of village Boot and has not been declared by the Municipal Corporation or any other authority as industrial or commercial area. The learned counsel further argued that the nature of the acquired land is not even comparable to the land falling in the area of Guru Teg Bahadur Colony. Guru Teg Bahadur Colony is also situated at a considerable distance from the acquired land.
11. The learned counsel argued that the report Ex.A-2 of AW-4 B.K. Singhal, which was prepared on the basis of record of Improvement Trust un-officially and without making my application, cannot be accepted. It is evident from his statement that no permission for inspection of the record was obtained and, therefore, whatever has been stated in the report cannot be accepted as authentic. He referred to the statement of A W-5 Manmohan Singh, Clerk, of Improvement Trust, who stated that no one can examine the record of the Improvement Trust without permission. The witness has not given any allowance/valuation for the low lying area. He referred to the statement of Harinder Singh AW-1, who admitted that the acquired land was low lying. He further referred to the statement of AW-2 Sohan Lal Patwari, who stated in cross-examination that a little part of the land is pond, while on the other part, there are pits. Even AW-4 B.K.Singhal admitted in cross-examination that the acquired land is low lying and in rainy season water collects in the form of pond in this land. The learned counsel argued that since the land is low lying, it does not have much potential and cannot be equated with the developed land. The learned counsel further argued that Patwari is not an expert to assess the value for the earth work. He referred to the statement of RW-1 Sadiq Ram Patwari who stated that it will require only Rs. 1,00,000/- for the earth work in order to fill-up the pond. The learned counsel argued that Harinder Singh AW-1 did not utter even a single word with regard to severance nor this argument was raised before the District Judge. The learned counsel argued that the claim of severance has to be specifically pleaded and proved. In support of his arguments, he referred to the cases of Balammal and Ors. v. State of Madras and Ors. , Periyar and Pareekanni Rubbers Ltd. v. State of Kerala 10 and Neki Ram and Ors. v. State of Haryana and Anr. (2004-2) 137 P.L.R. 391.
12. The learned counsel lastly argued that the present acquisition is of a compact block of land and the sale instances brought on record relate to very small pieces of land. In such cases, a road frontage does not have so much value. Therefore, a reasonable deduction must be made while assessing the compensation on the basis of such instances. He further argued that if a plot is large, then there must be depreciation for largeness as large plots always fetch less than small plots. In support the learned counsel referred to the judgment of Supreme Court in the cases of H.P. Housing Board v. Bharat S. Negi and Ors. and Lila Ghosh (Smt.) (Dead) through L.R. Tapas Chandra Roy v. State of W.B., .
13. I have considered the rival submissions of counsel for the parties. No doubt, Courts normally adopt ‘comparable sales method’ of valuation of land while assessing the market value of the acquired land. For fixing the market value of the acquired land, comparable sales method of valuation is preferred than other methods of valuation of land such as capitalisation of net income method or expert opinion method. ‘Comparable sales method’ of valuation is preferred because if furnishes the evidence for determination of the market value of the acquired land, which a willing purchaser would pay for the acquired land if it had been sold in the open market at the time of issue of notification under Section 4 of the Act. However, sometime it may be possible that comparable sales method of valuation is not always conclusive and certain other factors which can be taken into consideration and on fulfillment of those factors, compensation can be awarded. Some of the factors may be that sale must be a genuine transaction and the registration of the sale-deed must have been executed at the time proximate to the date of notification under Section 4 of the Act. The land covered by the sale must be in the vicinity of the acquired land and it should be similar in nature and having the same potentiality. Another factor which has to be seen is that the size of plot of the land of the sales instances be comparable to the land acquired. If all the above mentioned factors are satisfied, then the value as covered by the sale instances can be easily given for the acquired land. However, if there is a dissimilarity in regard to locality, shape, site or nature of land between land covered by sales and land acquired, it is open to the Court to proportionately reduce the compensation for acquired land than what is reflected in the sale instances which would, of course, depend upon the disadvantages and advantages attached with the acquired land. In the present ease, the sale instances brought on record are, of course, not quite comparable to the acquired land. The sale instances are of Guru Teg Bahadur Nagar, which is, of course, a residential colony. Guru Teg Bahadur Nagar is situated just at the back of the acquired land. As per the statement of AW-3 Gulshan Rai Patwari Guru Teg Bahadur Nagar is at a distance of 250 yards from the acquired land. Similar is the statement of AW-4 B.K. Singhal, who stated that abadi of Guru Teg Bahadur Nagar is at a distance of 200 yards from the acquired land. As per statement of AW-2 Sohan Lal Patwari, who produced Aks-Shajra, the acquired land adjoins Buta Mandi. Buta Mandi has developed as a commercial locality having leather market. T.V. Tower is just one kilometer from the acquired land. In between T.V. tower and Buta Mandi, a locality known as Mann Nagar has also developed. There are several shops and cold storages between Buta Mandi and T.V. tower. He further stated that across the road from the acquired land, there is Fodder Mandi at a distance of 25 yards. At a distance of 250-300 Karams, there is Luxmi Commercial Bank and Post Office. AW-2 Sohan Lal Patwari has corroborated the statement of claimant Harinder Singh to the effect that the locality around the acquired land has developed into commercial locality.
14. AW-5 Manmohan Singh of the Improvement Trust, Jalandhar, has brought on record the sale instances of booths auctioned in the area of Guru Teg Bahadur Nagar and AW-6 R.L. Bhagat has also produced the record relating to residential plots in Guru Teg Bahadur Nagar, Jalandhar. The description of the sale instances produced, belonging to Guru Teg Bahadur Nagar, is as under:-
Plot No. Date of Auction Area of Land Rate per Maria 53 2,2. 1980 20 Marias 5,750/- 61 2.2. 1980 20 Marias 5,120/- 63 2.2. 1980 20 Marias 5,425/- 65 2.2. 1980 20 Marias 5,600/- 66 2.2. 1980 20 Marias 5,625/- AW-4 B.K.Singhal has given the valuation of the land on the basis of sale instances of constructed booths of Guru Teg Bahadur Nagar as under:- Date of Auction Area of Plot Price of Plot Rate per Maria 15.4.1981 2 Maria 186 sft. Rs. 60,500/- 20,872/- 15.4.1981 1 Maria 93 sft. Rs. 40,000/- 27,599/- 15.4.1981 1 Maria 93 sft. Rs. 37,700/- 26,703/- 15.4.1981 1 Maria 93 sft. Rs. 38,000/- 26,700/- 15.4.1981 1 Maria 93 sft. Rs. 36,000/- 25,714/-
From above rates, rate per marla having an area of 207 square feet comes to Rs.20,985.00 as on 15,4.1981. Its rate in February, 1983 shall be after adding difference to time gap of two years at the rate of 10% per annum i.e. Rs.20,985.00 + Rs.2098.00 = Rs.23,083.00. The acquired land has bigger marla, having an area of 272 square feet, therefore, rates per marla shall be Rs.30,331.00, say Rs.30,300.00. The above booths are 300 yards away from Nakodar Road. These booths were auctioned by Jalandhar Improvement Trust on 15.4.1981.
15. AW-5 has also stated that incomplete booths were auctioned by Improvement Trust, Jalandhar, at the following rates:-
Date of Auction Area of Plot Price of Plot Rate per Maria 15.4.1981 1 Maria 93 sft. Rs. 40,000/- 27,599/- 15.4.1981 1 Maria 93 sft. Rs. 37,700/- 26,703/- 15.4.1981 1 Maria 93 sft. Rs. 38,000/- 26,700/- 15.4.1981 1 Maria 93 sft. Rs. 36,000/- 25,714/- A perusal of the site plan Ex.A-1 would show that the incomplete booth sold by the Improvement Trust, depicted in blue colour, is situated in the center of Guru Teg Bahadur Nagar. However, the value of the constructed, though incomplete, booths, cannot, it any manner, be equated to the acquired land.
16. However, the above valuation given by the expert i.e. AW-4 B.K.Singhal cannot be accepted as the comparable sales are not in the form of plot, but in the shape of constructed (incomplete) booths. It is well known that the commercial booths would certainly fetch higher rates than the plain or non-constructed area of land. However, it would certainly be comparable to the sale instances given by AW-5 Manmohan Singh with regard to plots sold in Guru Teg Bahadur Nagar.
17. AW-4 B.K.Singhal has also given the rates of the residential properties situated in Guru Teg Bahadur Nagar, as under: –
Plot No. Date of Auction Area of Land Rate per Maria 53 2.2.1980 20 Marias 5,750/- 61 2.2.1980 20 Marias 5,120/- 62 2.2.1980 20 Marias 5,425/- 63 2.2.1980 20 Marias 5,425/- 64 2.2.1980 20 Marias 5,480/- 65 2.2.1980 20 Marias 5,600/- 66 2.2.1980 20 Marias 5,625/-
From above, the average rate of per marla having an area of 207 square feet as on 2.2.1980, comes to Rs.5,490/- per marla and rate for per marla of an area of 272 square feet shall be Rs.7,2137-. There is no rebuttal to the statement of Harinder Singh claimant and AW-2 Sohan Lal Patwari to the effect that in the acquired land 1 marla is equal to 272 square feet than the usual marla having 207 square feet.
18. I am in agreement with the arguments of the learned counsel for the claimant that while d etermining the market value by taking the price of old comparable sale transactions as the base value and if there is no evidence coming forth for adoption, 10% per annum has to be given in appreciation of value of land for every subsequent year, upto the date of acquisition. The sale instances relate to 2.2.1980. Rates as on February, 1983 by adding the difference of time gap at the rate of 10% per annum shall be Rs.7,213.00 + 30% of Rs.7,213.00 = Rs.9,376.00 and to make it a round figure as Rs.9,400.00 per Maria.
19. In the absence of any other sale instances brought on record, the sale instances of the land situated in Guru Bahadur Nagar is the nearest valuation which can be taken into consideration. The sale instances of the residential area of Guru Teg Bahadur Colony mentioned by AW-4 in his report are similar to the sale instances as mentioned by the official witnesses and, therefore, they are the best evidence for evaluation of the land in question.
20. Though it has come in the evidence that the land in question is low-lying, yet there is no documentary or any other cogent evidence to prove that the land in question was in the shape of a pond, it was not possible for the respondents to develop it into a Park without filling and doing some earth work. However, there is no evidence brought on record that the respondents had to fill up the land before developing it into a Park. 21. It is, of course, well proved from the statement of claimant Harinder Singh AW-1, which is supported by AW-2 Sohan Lal Patwari, AW-4 B.K.Singhal and AW-5 Manmohan Singh, that the area around the acquired land is developed into commercial area. Opposite the acquired land across the road are located all commercial establishments i.e. Fodder Mandi, Pioneer Sports Factory, Satwinder Dharam Kanda and the Post Office etc.lt has also come in the statement of AW-2 Sohan Lal Patwari that Buta Mandi, which has developed into a leather market, is just opposite the acquired land. Fodder Mandi is at a distance of 25 yards from the acquired land. However, there are no sale instances of any commercial property brought on record, which could be comparable to the acquired land.
22. Learned counsel for the claimants also argued that the claimants have to be compensated for the severance of their land which has been rendered inaccessible on account of the present acquisition. However, claimant Harinder Singh himself did not utter a single word as to what loss has been caused to them on account of severance of land. Admittedly, it has to be specifically pleaded and proved by the claimants regarding the loss caused on account of severance of the land. Claimant Harinder Singh has himself admitted that some area of the total land was left out of acquisition on account of unauthorised possession by the persons of weaker section./Even in the award it finds mention that initially the area notified for acquisition was 35 Kanals 14 Marias, but an area of 7 Kanals 14 Marias, wherein unauthorised structures have been raised, was left out of acquisition. The claimants, therefore, cannot take a plea that any loss has been caused to them on account of acquisition as the said area was already under the unauthorised occupation of some other persons. Moreover, no evidence has been brought on record that the said area has been rendered inaccessible on account of acquisition of the land.
23. In view of the above, the appeal filed by the claimants is partly allowed by assessing the market value of the acquired land on the date of issuance of notification under Section 4 of the Act at the rate of Rs.9,400/- per marla. They would also be entitled to solatium at the rate of 30% and interest at the rate of 9% per annum on the enhanced amount from the date of taking possession, till the payment of excess amount.
24. In view of the above, the appeal filed by the Municipal Corporation, Jalandhar has no merit and is hereby dismissed.