RFA No. 3071 of 1993 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
RFA No. 3071 of 1993
Date of Decision: 20.11.2009
Siria ..Appellant
Vs.
The State of Haryana ..Respondent
Coram: Hon'ble Mr. Justice Vinod K.Sharma
Present: Mr.M.L.Sharma & Mr.A.P.Bhandari, Advocates,
for the appellants.
Mr.Rajiv Kawatra, Sr.DAG, Haryana,
for the respondent/State.
---
1. Whether Reporters of Local Newspapers may
be allowed to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in
Digest?
---
Vinod K.Sharma,J.
This order shall dispose of RFA Nos. 3071 to 3073, 3412 to
3414, 3432, 3733 and 3734 of 1993 titled Siria Vs. The State of Haryana;
Mohan Vs. The State of Haryana; Jeet Ram Vs. The State of Haryana; Prem
Singh @ Prem Chand Vs. The State of Haryana; Tejja Vs. The State of
RFA No. 3071 of 1993 2
Haryana; Ranjit Singh alias Jeet (dead) through his L.Rs. Vs. The State of
Haryana; Pal Singh Vs. The State of Haryana; Kehar Singh Vs. The State of
Haryana and Bachan Singh alias Gurbachan Singh (dead) represented by
L.Rs. Vs. The State of Haryana, respectively, as common questions of law
and facts are involved in these appeals and they arise out of the common
award.
The appellant/land owners have challenged the award dated
3.6.1993 passed by the learned Additional District Judge, Ambala on a
reference made under section 18 of the Land Acquisition Act (for short the
Act).
The State of Haryana decided to acquire land measuring100-31
acres in village Kundi Hadbast No.366 for public purposes, namely the
development and utilization of the land for residential, commercial and
industrial area for urban estate Panchkula vide Govt. Notification No.LAC
(P)NTLA-80/2675 dated 24.6.1980 under section 4 of the Act.
Notification under section 6 of the Act was also issued with
respect to the land measuring 100-31 acres but the acquiring department
gave demarcation for the land measuring 9.23 acres only which was the
subject-matter of references before the learned Additional District Judge,
Ambala. Besides raising objections against the acquisition of land the land
owners had also claimed compensation at the rate of Rs.1250-3000/- per
marlas but in support thereof no documentary evidence was produced.
Therefore, in order to consider the market value the rates supplied by the
Deputy Commissioner, Ambala were considered and land owners were
RFA No. 3071 of 1993 3
awarded compensation at the rate of Rs.20640/- (Rupees twenty thousands
six hundred and forty only) per acre for Chahi/Abi land by the learned
Collector vide his award dated 17.9.1986.
As already referred to above, land owners sought references
under section 18 of the Act on the plea that the compensation awarded by
the Collector was highly inadequate and less than the market value
prevailing in the locality. It was pleaded case of the land owners that the
value of the land in question was not less than Rs.5 lacs per acre at the time
of publication of the notification under section 4 of the Act. The acquired
land was said to be of good quality yielding 3 crops a year. It was also
irrigated land. Water was available in plenty from kools free of costs almost
throughout the year. The land was said to be having potentiality of being
used for industrial purpose as number of industries were in existence
adjacent to the land in question. It was also the stand of the land owners
that the land was of very high potential value as it was situated near
Chandigarh and Panchkula. A plea was also raised that the Government has
pegged down the prices of the land in question by issuing frequent and
repeated notifications.
The reference was contested by the State wherein the
allegations made by the appellants were controverted. It was pleaded by the
State that the award was passed on the basis of rates supplied by the District
Collector who was proper and competent authority under the revenue law to
assess such rates based on average rates of sale transactions during that
particular period executed for nearby land of similar category. It was denied
RFA No. 3071 of 1993 4
that the award given by the Collector was unfair or below the actual market
rate.
On the pleadings of the parties the learned reference court
framed the following issues:-
1. What was the market value of the acquired land on the
date of issuance of notification under section 4 of the
Land Acquisition Act? OPP
2. Whether the adequate compensation has not been
awarded for the tube-well. If so what was the market
value of the tube-wells installed in the acquired land?
OPP
3. Whether the adequate compensation has not been paid
for acquisition of Kools and the passage, if so what was
their market value? OPP
4. Whether the value of the acquired land had been fridged
as alleged, if so to what effect? OPP
5. Relief.
In support of their claim the appellants examined PW 1 Sham
Lal Patwari Halqa, Amadalpur. He deposed that the village Kundi was
within his circle. He also deposed that he had seen the acquired land which
was being irrigated by kool and further that the kool water was available to
the land owners free of costs throughout the year. He also stated that village
Ralli and Fatehpur adjoin the village Kundi and the land of all the three
villages is of the same quality. He further deposed that village Judian and
RFA No. 3071 of 1993 5
Maheshpur were also under his charge in the year 1986-87 and land of
those villages was almost of the same quality. It was also in his evidence
that acquired land was situated at a distance of 1 ½ acres from Ambala-
Kalka road. It was further in his deposition that there is Industrial Area in
the land of village Ralli across Ambala-Kalka road and that Sector 12-A of
Panchkula was at some distance from area of village Kundi.
PW 2 Ujjagar Singh, Agriculture Inspector Fatehpur also
deposed regarding quality of the acquired land and deposed that it was
equivalent to the quality of land of village Maheshpur and that kool water
was available to the acquired land free of costs. PW 3 Som Nath, Patwari
from the office of Collector, Panchkula deposed that the land of 15 villages
was notified for acquisition for development of Panchkula town in the
year 1971 and village Kundi was included in those villages. Notifications
issued were proved on record as Ex.P.1 and P.2. He further deposed that the
acquired land of village Kundi was situated at a distance of about 2 killas
from industrial area of Panchkula and industrial area Panchkula adjoins
Ambala-Kalka road and that the acquired land was about one killa away
from the said road on the other side. It was also in his evidence that the land
of villages Fatehpur, Ralli and Maheshpur was also acquired for
development of Panchkula.
PW 4 Kedar Nath Sachdeva, a retired circle Head Draftsman
deposed that he had visited and seen the acquired land and that he had also
seen the abadi of villages Maheshpur and Fatehpur and acquired land of
village Fatehpur. He proved site plan Ex.P.3 showing the location of
RFA No. 3071 of 1993 6
acquired land as well as location of certain sectors of Panchkula and abadi
deh of village Meheshpur and Fatehpur. PW 5 Daulat Ram deposed that his
land was adjacent to the acquired land and that his land was also situated
in the area of village Ralli which was adjacent to the acquired land. He
deposed about the good qualities of the land as also the facility of irrigation
available thereto. He deposed that three crops could be grown in the
acquired land and that the land was capable of yielding income of
Rs.20,000/- per acre per year. He also deposed regarding location of the
land to be near Ambala-Kalka road and Industrial Area of Panchkula.
According to him the market value of the acquired land in the year 1980
was about 4.5 lacs per acre.
PW 6 Kuldeep Singh also deposed on the same lines that the
land situated in villages Ralli, Kundi, Fatehpur, Judian and Maheshpur was
of the same quality and kool water from Ghagar river was available to the
acquired land throughout the year without any charges. He also deposed
that there was Pole Factory for making electric poles in the area of village
Fatehpur which was at a distance of about 3 killas from the acquired land,
whereas the Industrial Area of Panchkula was at a distance of one killa
from the acquired land. Similarly, Sector 12-A of Panchkula was also at a
distance of one killa way from the acquired land. Railway Station,
Chandigarh was said to be at a distance of 3 Kms away from the acquired
land and Grain Market Chandigarh was said to be 5 Kms away from the
village. College was said to be about 2 Kms from the acquired land,
whereas school was also situated in village Kundi. Nahan Kothi where the
RFA No. 3071 of 1993 7
office of SDM was located was at a distance of 3 Kms from the village. He
also deposed about the value of the acquired land in the year 1980 to be
Rs.5 lacs per acre.
Besides the oral evidence referred to above the land owners
placed reliance on various awards announced by the various courts from
time to time in support of their claim. Some sale deeds were also produced.
The respondent/State, on the other hand, examined Dhoop
Singh, Patwari as RW 1, who proved Ex.R.1 i.e. Aks Sijra of village Kundi
and also copies of the sale deeds Ex.R.2 to R.4. It was also deposed by RW
1 that the land mentioned in sale deeds Ex. R.3 and R.4 was at a distance
of half KM from the acquired land and adjoins the land of Fatehpur,
whereas the land of sale deed Ex.R.2 was situated within the acquired land.
The acquired land was said to be agricultural land. He also proved on record
the index of all the sale deeds as Ex.R.5. It was deposed by him that the
market value of the acquired land was not more than Rs.20640/- (Rupees
twenty thousand six hundred and forty only) per acre.
Learned reference court did not accept the oral evidence of PW
5 and PW 6 wherein they had claimed the market value to be Rs.5 lacs
(Rupees five lacs only) per acre. This oral evidence was rejected for want of
any sale deed or other reliable evidence on record. Learned reference court,
therefore, took into consideration the various awards given by the different
courts to determine the market value of the acquired land at the time of
notification. Learned reference court, however, held that it was established
on record that the land of villages Kundi, Fatehpur, Maheshpur, Ralli and
RFA No. 3071 of 1993 8
Judian was almost of the same quality and there was no dispute between the
parties on this point. The learned reference court also found that the
location of the acquired land was about 1½ killa from Ambala-Kalka road
and that Industrial Area of Panchkula was situated at a distance of about 2
killas from the acquired land. Sector 12-A Panchkula was located at a
distance of about 1.25 Killas away from the acquired land.
The appellants did not rely on Ex.P.4 for the reason that it
related to village Dhillan and therefore, was not relevant to the acquired
land. Ex.P.5 was an award dated 7.1.1983 passed by the learned Additional
District Judge, Ambala, vide which market value of the acquired land of
village Ralli was assessed at Rs.23750/- (Rupees twenty three thousand
seven hundred and fifty only) per acre. This land was acquired in the year
1973.
Ex.P.6 is the award dated 10.9.1988 passed by the learned
Additional District Judge, Ambala vide which market value of the acquired
land of village Judian was said to be Rs.1.50 lacs (Rupees one lac and fifty
thousand only) per acre. This land was acquired vide notification dated
27.8.1981. Ex.P.7 was award vide which the market value of the acquired
land of village Maheshpur was assessed at Rs.1.50 lacs (Rupees one lac and
fifty thousand only) with respect to the notification published in the year
1983, whereas Ex.P.8 was copy of award dated 18.5.1991 qua notification
of the year 1983 qua land of village Maheshpur wherein the market value of
the land was assessed at Rs.1.50 lacs (Rupees one lac and fifty thousand
only).
RFA No. 3071 of 1993 9
Ex.P.9 was award dated 2.3.1985 passed by the learned
Additional District Judge, Ambala qua the land of village Fatehpur with
regard to notification of the year 1973 vide which the market value of the
acquired land was assessed at Rs.23,750/- (Rupees twenty three thousand
seven hundred and fifty only). Ex.P.12 was copy of award dated 1.9.1982
qua the land of village Maheshpur which was acquired vide notification of
the year 1973 wherein again value of the land was determined at
Rs.23,750/- (Rupees twenty three thousand seven hundred and fifty only)
per acre. Ex.P.14 was copy of award dated 17.4.1993 passed by the learned
Additional District Judge Ambala qua the land of village Fatehpur with
regard to the notification of the year 1983 vide which market value of the
land was determined at Rs.2.25 lacs (Rupees two lacs twenty five thousand
only) per acre. Ex.P.15 was the copy of the sale deed dated 16.12.1977 vide
which 2 marlas of land situated in village Kundi was sold for Rs.900/-
(Rupees nine hundred only), whereas Ex.P.16 was copy of the sale deed
dated 6.10.1978 vide which 5 marlas of agricultural land of village Kundi
was sold for Rs.1500/- (Rupees one thousand and five hundred only).
On the basis of evidence referred to above the contention raised
by the learned counsel for the appellants before the learned reference court
was that the different awards showed that there was increase of Rs.20,000/-
(Rupees twenty thousand only) per year and therefore, the value of acquired
land was assessed at Rs.1,63,750/- (Rupees one lac sixty three thousand
seven hundred and fifty only) per acre.
This plea was not accepted for the reasons that the court found
RFA No. 3071 of 1993 10
that valuation is to be done on the basis of the location of the acquired land
in a particular case. The learned Reference court found that the land of
village Fatehpur which was acquired in 1983 for which award Ex.P.14 was
passed on 17.4.1993 was situated on the road leading to Ambala-Kalka road
i.e. on the main road leading to Nahan Kothi to Nahan whereas the
acquired land was not situated on the main road but at a distance of 1/1½
killas away from the main Ambala-Kalka road. Therefore, the learned
reference court found that Ex.P.14 could not be applied to determine the
market value of the land in question. The learned reference court found that
the award Ex.P.7 also could not be the basis and it was with respect to the
land acquired in the year 1983 vide which the value of the land was
determined at Rs.1.50 lacs. The learned court held that the market value of
the acquired land was to be less than the one determined vide Ex.P.7 as the
same was acquired in the year 1980 i.e. 3 years prior to the land falling in
Ex.P.7. The learned reference court, therefore, held that if Rs.20,000/-
(Rupees twenty thousand only) cut per year is applied to this then the
market value would be Rs.1 lac (Rupees one lac only) per acre . Learned
reference court also recorded a finding that the award Ex.P.6 was with
regard to the land acquired in the year 1981 i.e. one year after the
acquisition of the land in the present case. The learned reference court also
found that the award Ex.P.6 related to village Judian which was situated
near Dhillon theater and Motor Market Mani Majra and other urban
complexes.
In the said case the market value was assessed at Rs.1.50 lacs
RFA No. 3071 of 1993 11
per acre. The learned reference court, therefore, held that market price of
the present land would be less because acquisition in this case was of one
year prior to the year under consideration in Ex.P.6. The learned reference
court found that even if the sale deeds produced on record are taken into
consideration, in that event also the value of the land comes to Rs.1 lac per
acre. The learned reference court further did not rely upon the sale deeds
produced on record by the respondent which represented the value of the
land to Rs.29,000/- (Rupees twenty nine thousand only). Thus, on over all
assessment of the oral and documentary evidence, learned reference court
after taking into consideration the potentiality and location of the acquired
land assessed the market value at Rs.1 lac per acre. Land owners were also
held to be entitled to statutory benefits under the Act on assessed value of
land.
Mr.M.L.Sharma, learned counsel appearing on behalf of the
appellants challenged the impugned award on the plea that the learned
reference court had not applied the settled principles of law for determining
the market value of the acquired land. The contention of the learned counsel
was that on the facts and circumstances of each case one of the following
principles can be applied to determine the market value:-
1. The transaction prior to the notification under section 4
of the Act including similar transaction can be taken into
consideration and under the given facts and circumstances
even average of transactions prior to the notification can be
taken into consideration for determining the market value.
RFA No. 3071 of 1993 12
2. In case there are no transactions available in close
proximity prior to the notification then the award passed by
the court with respect to the land acquired in the vicinity can
be taken into consideration by giving increase by 12 per cent
per annum with respect to the acquisition for the previous
period.
3. The market value of the small transactions can also be
formed the basis of fixation of market value by imposing a cut
of 33 per cent thereon for the chunk of land acquired.
4. In case of availability of transactions in the same village
then these can be taken into consideration but in the absence of
any transaction of the village then the transactions qua the
adjoining villages can also be taken into consideration or
reasonable cut or increase can be applied keeping in view the
location of the acquired land, and
5. Finally it is open to the court to fix the market value by
guess work on the available material.
On the basis of principles referred to above, Mr.M.L.Sharma,
learned counsel for the appellants contented that there is no bar to taking
into consideration post notification sale transactions or awards to determine
the market value. In support of this contention learned counsel for the
appellant placed reliance on the judgment of Hon’ble Supreme Court in the
case of Mehta Ravindrarai Ajitrai through his heirs and Legal
Representatives and Ors. Vs. State of Gujarat 1989 (2) RRR 243,
RFA No. 3071 of 1993 13
wherein Hon’ble Supreme court was pleased to lay down as under:-
“4. We do not feel called upon to enter into a detailed
scrutiny of the evidence led by the parties before the learned
Civil Judge. The main instance relied upon by the claimants
was by way of an agreement to sell dated January 21, 1957 and
a sale deed dated April 2, 1957 in respect of the sale of 42552
square yards of land but of survey No.233/2 which is adjoining
the land with which we are concerned which forms part of
survey No.331. The land sold under this instance was known
as “Kesarbagh” and was sold to Mahalaxmi Mills Limited by
Prince Nirmalkumarsinghji. The rate at which it sold works out
to Rs.3 per square yard. On the basis of this instance, the
claimants had made their claim at Rs.3 per square yard before
the Land Acquisition Officer. The High Court inter alia
rejected this instance on the basis that the contents of the sale
deed were not property proved. However, after an order for
remand made by this Court on August 25, 1981 evidence has
been led regarding the sale and the sale deed has been duly
proved by the evidence of one Dharamdas, a director of
Mahalaksmi Mills Limited, the purchaser, and the vendor
Prince Nirmalkumarsinghji. It was marked originally as Exhibit
87 and after the evidence on remand as Exhibit 152. The
evidence shows that this land was just adjacent to the land of
the purchaser, Mahalaksmi Mills Limited. The agreement of
RFA No. 3071 of 1993 14sale is dated January 21, 1957 and the conveyance or sale deed
is dated April 2, 1957 as aforestated. The price has been fixed
under the agreement of sale. This agreement of sale was
entered into about five months after the publication of section 4
notification in the case before us. The High Court rejected the
said instance on the ground that the contents of the sale deed
were not proved although the execution thereof was duly
proved. In view of the evidence led after remand, it cannot be
disputed that this agreement of sale as well as the sale deed
have been duly proved and they have been duly marked as
exhibits. The High Court further took the view that in any event
no reliance could be placed on this instance of sale because the
acquisition of the land in question before us was for the
construction of an industrial estate as Bhavnagar and such
construction was bound to have pushed up the price of land in
the surrounding area. There is, however, nothing in the
evidence to show that there was any sharp or speculative rise in
the price of the land after the acquisition and this has been
noticed by the High Court. It appears that under these
circumstances, the High Court was not justified in not taking
this instance into account at all as it has done on the ground
that it was a post-acquisition sale and could not be regarded as
a comparable instance at all. The market value of a piece of
property for purposes of section 23 of the Land Acquisition Act
RFA No. 3071 of 1993 15is stated to be the price at which the property changes hands
from a willing seller to a willing, but not too anxious a buyer,
dealing at arm’s length; Prices fetched for similar lands with
similar advantages and potentialities under bona fide
transactions of sale at or about the time of the preliminary
notification are the usual and, indeed the best, evidence of
market value (See. Administrator General of west Bengal Vs.
Collector, Varansi (1988) 2 SCC 150.
5. Keeping these
factors in mind we feel that although the instance reflected in
the sale deed (Ex.152) and the agreement for sale in connection
with that land, pertains to a sale after the acquisition, it can be
fairly regarded as reasonably proximate to the acquisition and,
in the absence of any evidence to show that there was any
speculative or sharp rise in the prices after the acquisition, the
agreement to sell dated January 21, 1957 must be regarded as
furnishing some light on the market value of the land on the
date of publication of section 4 notification. However, certain
factors have to be taken into account and appropriate
deductions made from the rate disclosed in the said agreement
to sell in estimating the market value of the land with which we
are concerned at the date of the acquisition. One of these
factors is that there seems to have been some rise in the price of
land on account of the acquisition of the land in question before
RFA No. 3071 of 1993 16us for purposes of constructing an industrial estate. Another
factor is that the land proposed to be purchased under the said
agreement to sell was adjoining the land of the purchaser and
purchaser might have paid some extra amount for the
convenience of getting the neighbouring land.”
Reliance was also placed on the judgment of Hon’ble Supreme
Court in the case of Administrative General of West Bengal Vs.
Collector, Varansi 1988 (1) Recent Revenue Reports 480, wherein again
Hon’ble Supreme Court was pleased to lay down that the subsequent sale
transaction in the area can be looked into to see whether there was upper
trend of the price of the land.
Learned counsel for the appellant also placed reliance on the
judgment of this court in the case of Union of India Vs. Jaswant Singh
1992 (1) Recent Revenue Reports 300, wherein this court was pleased to
lay down that post dated sale transaction within one year of the relevant
date can also be relied upon to assess the market value of the acquired land,
and finally reliance was placed on the judgment of Hon’ble Supreme Court
in the case of Chimanlal Hargovinddas Vs. Special Land acquisition
Officer, Poona and anr. 1988 (2) Recent Revenue Reports 136 wherein
again Hon’ble Supreme Court was pleased to lay down as under:-
"(1) A reference under section 18 of the Land
Acquisition Act is not an appeal against the award and the
Court cannot take into account the material relied
upon by the Land Acquisition officer in his Award
RFA No. 3071 of 1993 17
unless the same material is produced and proved before the
Court.
(2) So also the Award of the Land Acquisition officer is
not to be treated as a judgment of the trial Court open or
exposed to challenge before the Court hearing the
Reference. It is merely an offer made by the Land Acquisition
officer and the material utilised by him for making his
valuation cannot be utilised by the Court unless produced
and proved before it. It is not the function of the Court to sit in
appeal against the Award, approve or disapprove
its reasoning, or correct its error or affirm, modify or reverse
the conclusion reached by the Land Acquisition officer, as
if it were an appellate court.
(3) The Court has to treat the reference as an original
proceeding before it and determine the market value afresh
on the basis of the material produced before it.
(4) The claimant is in the position of a plaintiff who has to
show that the price offered for his land in the award is
inadequate on the basis of the materials produced
in the Court. Of course the materials placed and
proved by the other side can also be taken into account for this
purpose.
(5) The market value of land under acquisition has to be
determined as on the crucial date of publication
RFA No. 3071 of 1993 18
of the notification under sec. 4 of the Land Acquisition Act
(dates of Notifications under secs. 6 and 9 are irrelevant).
(6) The determination has to be made standing on the date
line of valuation (date of publication of notification under
sec. 4) as if the valuer is a hypothetical purchaser willing to
purchase land from the open market and is prepared to
pay a reasonable price as on that day. It has also to be
assumed that the vendor is willing to sell the land
at a reasonable price.
(7) In doing so by the instances method, the Court has to
correlate the market value reflected in the most
comparable instance which provides the index of market
value.
(8) Only genuine instances have to be taken into account.
(Some times instances are rigged up in anticipation of
Acquisition of land).
(9) Even post notification instances can be taken into
account (1) if they are very proximate,(2) genuine and (3) the
acquisition itself has not motivated the purchaser to pay
a higher price on account of the resultant improvement
in development prospects.
(l0) The most comparable instances out of the genuine
instances have to be identified on the following
considerations:
RFA No. 3071 of 1993 19
(i) proximity from time angle,
(ii) proximity from situation angle.
(11) Having identified the instances which provide the index
of market value the price reflected therein may be taken as
the norm and the market value of the land under acquisition
may be deduced by making suitable adjustments for the plus
and minus factors vis-a-vis land under acquisition by
placing the two in juxtaposition.
(12) A balance-sheet of plus and minus factors may be
drawn for this purpose and the relevant factors may be
evaluated in terms of price variation as a prudent purchaser
would do.
(13) The market value of the land under acquisition has
thereafter to be deduced by loading the price reflected in the
instance taken as norm for plus factors and unloading it for
minus factors.
(14) The exercise indicated in clauses (11) to (13) has to be
undertaken in a common sense manner as a prudent
man of the world of business would do. We may illustrate
some such illustrative (not exhaustive) factors:
Plus factors Minus factors
1. smallness of size. 1. largeness of area.
2. proximity to a road. 2. situation in the interior at a
distance from the Road.
RFA No. 3071 of 1993 20
3. frontage on a road. 3. narrow strip of land with
very small frontage compared
to depth.
4. nearness to developed area. 4. lower level requiring the
depressed portion to be
filled up.
5. regular shape. 5. remoteness from developed
locality.
6. level vis-a-vis land 6. some special disadvantageous
under acquisition. factor which would deter a
purchaser.
7. special value for an owner
of an adjoining property
to whom it may have some
very special advantage.
(15) The evaluation of these factors of course depends on
the facts of each case. There cannot be any hard and fast or
rigid rule. Common sense is the best and most reliable guide.
For instance, take the factor regarding the size. A building
plot of land say 500 to 1000 sq. yds cannot be compared
with a large tract or block of land of say l0000 sq. yds or
more. Firstly while a smaller plot is within the reach of many,
a large block of land will have to be developed by
preparing a lay out, carving out roads, leaving open space,
plotting out smaller plots, waiting for purchasers
(meanwhile the invested money will be blocked up) and the
hazards of an entrepreneur. The factor can be discounted by
making a deduction by way of an allowance at an
RFA No. 3071 of 1993 21
appropriate rate ranging approx. between 20% to 50% to
account for land required to be set apart for carving out lands
and plotting out small plots. The discounting will to
some extent also depend on whether it is a rural area or
urban area, whether building activity is picking up,
and whether waiting period during which the capital of
the entrepreneur would be locked up, will be longer or
shorter and the attendant hazards.
(16) Every case must be dealt with on its own fact
pattern bearing in mind all these factors as a prudent
purchaser of land in which position the Judge must place
himself.
(17) These are general guidelines to be applied with
understanding informed with common sense.”
On the basis of the above settled law learned counsel for the
appellants contended that the learned reference court should have relied
upon Ex.P.14 i.e. the award passed qua the land acquired in village Fatehpur
with respect to the notification issued on 19.9.1983, wherein the market
value was assessed at Rs.2,25,000/- lacs (Rupees two lacs twenty five
thousand only) per acre, especially when it was not disputed that the quality
of the land in village Fatehpur was similar to the one under acquisition.
Learned counsel for the appellants, therefore, contended that even if
reasonable cut of 33 percent was imposed thereon the market value
assessed by the learned reference court deserves to be enhanced. Learned
RFA No. 3071 of 1993 22
counsel for the appellants contended that even if other transactions were
taken into consideration i.e. the award qua the land acquired in the year
1973 and increase of Rs.20,000/- (Rupees twenty thousand only) per year
was added to it as proved on record still the market value could not be
assessed at less than Rs.1.66 lacs (Rupees one lac sixty six thousand only)
per acre. Learned counsel for the appellants, thus, contended that the appeals
deserve to be accepted and the market value of the land be enhanced to
Rs.1.66,000/- (Rupees one lac sixty six thousand only) lacs per acre.
Mr. Rajiv Kawatra, learned Senior Deputy Advocate General,
Haryana supported the award of the learned reference court by raising the
plea that post notification sale instances are not to be taken into
consideration for determining the market value of the acquired land.
In support of this contention reliance was placed on the
judgment of Hon’ble Division Bench of this court in the case of Zile Singh
and others Vs. State of Haryana and Ors. 2004 (4) PLR 746 wherein this
court was pleased to lay down as under:-
“14. The argument of learned counsel representing the
appellants prima facie appears to be attractive but when
examined in detail, the same is found to be of no substance,
whatsoever. Insofar as Ex.P.18 is concerned, the same is a post
notification transaction and thus, cannot be taken into
consideration. Insofar as sale instances, Ex.P.15 and P.17 are
concerned the counsel has not shown to us as in which village
the lands pertaining to these transactions. Assuming that the
RFA No. 3071 of 1993 23sale instances pertain to village Alipur itself, price of the same
would not work out to more than Rs.56,959/- per acre. After
excluding registration charges, the same would come to
Rs.48,500/- per acre and even if a cut of 10 to 12% is applied
on the said sale instances, being small in nature, by and large,
the market value would be the same, which has been assessed
by the learned Single Judge and rather it may come to even
less than one assessed by learned Single Judge.”
Reliance was also placed on the judgment of Hon’ble Supreme
Court in the case of V.G.Kulkarni Vs. SPL Land Acquisition Officer
(1996) 8 SCC 301 wherein the Hon’ble Supreme Court was pleased to
uphold the order of the High Court vide which post notification sale
transactions were rejected by the High Court. The order passed by Hon’ble
Supreme Court reads as under:-
“3. The question, therefore, is: whether the High Court has
committed any error of law or applied wrong principle of law
in determining the compensation? The High Court in para
37 found that the sale deeds Exs.P-2 to P-7 being of the year
1985, i.e., 3-1/2 years after the notification published under
Section 4(1), were not comparable sales Moreover. those
sale deeds related to small corner plots in a
developed area. Therefore, they do not offer any comparable
sales. The High Court also found that though the lands are
situated towards the University area which is developing,
RFA No. 3071 of 1993 24actual development would take some more years. There
is no evidence of actual development taking place near the land
in question. Under those circumstances, in the absence
of any comparable sale instances, the High Court relied
upon determination of the market price at Rs.56,000/- per acre
in respect of nearby lands which were the subject-matter of
MFANos.678 to 681 of 1989 and which were also disposed
of by the High Court on that day, viz., September 25, 1992
and added 20% more as the notification in those cases was
published on 30.10.1981 while the notification in this case
is of January 1982. Thus the High Court determined the
compensation in this case at the rate of Rs.67,200/- per acre. It
can be seen from the evidence on record that as on the date of
the notification the acquired lands did not possess building
potentiality. In view of the evidence on record that it would
have taken 3 to 4 years for actual development of area, the
finding recorded by the Reference Court that the lands
possessed building potentiality was not correct. It appears
that the learned District Judge did not correctly appreciate
the legal position. Therefore, determination of the
compensation by the Reference Court on the basis that the
lands had already acquired building potentiality was not at all
proper. No willing purchaser would have purchased the land
at the rate of Rs.3,90,000/- per acre., The acid test of the
RFA No. 3071 of 1993 25court sitting in the arm chair of a willing prudent purchaser in
open market is whether he would be prepared to purchase the
land at the rate about to be determined by the court. The
sale deeds, Exs.P-2 and P-3 relied upon by the claimants
were not comparable sales as found by the High Court. The
lands were sold in plots near the acquired lands in 1985,
only after further development had taken place in that area.
Therefore, those two instances of sale could not have afforded
a reasonable basis for determination of
compensation. The High Court, therefore, has not
committed any error of law in rejecting those sale instances.”
Learned counsel for the respondent also contended that no
comparison of the price of the land in the developed areas can be the basis
for assessment of the market value of the acquisition of agricultural land as
in that eventuality deduction up to 86 per cent is required to be made as
held by Hon’ble Supreme Court in the case of K.S.Shivadevamma and
Ors. Vs. Assistant Commissioner and Land Acquisition Officer and
Anr. 1996 LACC 326.
On consideration of matter, I find no force in the contentions
raised by the learned counsel for the appellants. No reliance can be placed
on the judgment of Hon’ble Supreme Court in case of Mehta Ravindrarai
Ajitrai through his heirs and Legal Representatives and Ors. Vs. State
of Gujarat (supra); judgment in the case of Chimanlal Hargovinddas
Vs. Special Land acquisition Officer, Poona and anr. (supra) or the
RFA No. 3071 of 1993 26
judgment of this court in the case of Shri Tara Singh (deceased) Vs. The
State of Punjab (supra) and Union of India Vs. Jaswant Singh (supra)
for the reason that the Hon’ble Supreme Court in the case of V.G.Kulkarni
Vs. Special Land Acquisition Officer (supra) has been pleased to lay
down that the post notification transactions cannot be taken into
consideration for determining the market value.
It is settled principle of law that under Article 141 of the
Constitution of India judgment of Hon’ble Supreme Court creates a binding
precedent on all the courts in the country. However, in the event of conflict
between the two judgments on any question of law or interpretation of
statute it is the later view which needs to be followed provided both the
decisions are of the Bench of equal strength. In the event, the conflict is
between the judgment of a Constitution Bench rendered earlier and an
Hon’ble Division Bench delivered later in time the Constitution Bench
judgment is to be followed under the doctrine of stair decisis. Otherwise
where conflict is between a larger Bench judgment and a Bench of lesser
strength, the opinion of the larger Bench is to be followed notwithstanding
the fact that the decision of the larger Bench is earlier in time.
Similarly, the judgments of this court relied upon by the
learned counsel for the appellant are of Single Bench, whereas Division
Bench of this court has taken the contrary view. Once the post sale
transaction/awards are not taken into consideration then it would be seen
that the court below has rightly assessed the market value by relying upon
the award passed with respect of acquisition of land under prior
RFA No. 3071 of 1993 27
notification by giving reasonable increase in view of the potentiality.
The learned court has also taken into consideration the sale
transaction though representing the small pieces of land in order to
determine the market value of the land, therefore, the assessment of the
market value by the learned reference court does not call for any
interference or enhancement in compensation as contended by the learned
counsel for the appellants.
The post notification instances can only be taken into
consideration if there is no other material with the court, or to assess the
potentiality of land, but in case prior instances are available, then the
market value cannot be assessed by placing reliance on post notification
sale instances.
It may be noticed that the award passed by the learned
reference court is based on the principles laid down by Hon’ble Supreme
Court in the case of Chimanlal Hargovinddas Vs. Special Land
acquisition Officer, Poona and anr. (supra) except that post notifications
cannot be the basis for determining the market value except to assess the
potentiality of the land.
Finding no merit in these appeals, are ordered to be dismissed,
but with no order as to costs.
20.11.2009 (Vinod K.Sharma) rp Judge