JUDGMENT
Swatanter Kumar, J.
1. By this common judgment I propose to dispose of 93 Regular First Appeals as these all appeals arise from a common judgment and award passed by the Learned Additional District Judge, Kurukshetra, dated 31.5.1991.
2. The necessary facts are that the State of Haryana on 2.12.1982 issued a notification under Section 4 of the Land Acquisition Act, hereinafter referred to as the Act, intending to acquire 327.52 acres in village Patti Jhambra, Shahabad, in District Kurukshetra. Section 6 notification was issued on 4.7.1984 in relation to 178.62 acres though on actual measurement the possession of the land taken was found only 90.07 acres. Upon hearing the objections of the claimants-land owners, the Collector gave his award on 16.9.1986. He awarded the following amounts for the respective lands stated against each entry:-
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Chahi : Rs. 52,0007- per acre
Abadi Plot : Rs. 1,04,000/- per acre
Gair Mumkin : Rs. 34,8807- per acre
Banjar Quadim : Rs. 40,0007- per acre
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There upon the Collector also made a supplementary award being Award No. 21 dated 17.3.1987 in relation to building, tubewells etc.
3. Being dis-satisfied with the amount awarded the claimants filed application for reference under Section under Section 18 of the Act which were referred, in turn, by the Collector to the learned District Judge, Kuruksehtra. Parties led documentary and oral evidence. The claimants examined 8 witnesses i.e. PW-1 to PW-8 in support of their case and proved sale instances Ex.P.3 to P.7 and Ex.P.20. The respondents had produced Ex.R.1 and Ex.R.2 which were the judgments and award in another case relating to the same acquisition and led no other evidence before the learned Additional District Judge.
4. Vide judgment and award dated 31.5.1991, the learned Additional District Judge awarded a sum of Rs. 2,66,4007- per acre which comes to proximately Rs. 55.04 per square yard. The judgment of the learned Additional District Judge dated 31.5.1991 vide which 49 references were answered has resulted in filing of these 93 Regular First Appeals. While 49 appeals have been preferred by the State, it prayed for reduction of amount to the extent of Rs. 52,000/- per acre, the other 44 appeals have been preferred by the claimants praying for further enhancement to the extent of Rs. 4,36,000/- per acre and in some cases even Rs. 8,00,000/- per acre have been prayed for.
5. At the very outset it needs to be noticed that the learned counsel appearing for the claimants as well as the learned Advocate General, appearing for the State of Haryana, have clearly stated that they do not press any claim either for reduction for increase or account of super structures, trees and tubewell etc. As such in the cases where any enhancement of these accounts is prayed for, will be treated as given up.
6. As the main award was pronounced by the learned Additional District Judge in the case of Mohinder Singh v. State of Haryana, LAC No. 1 of 1991, I consider it appropriate to deal with Regular First Appeal No. 2396 of 1991, Mohinder Singh v. State of Haryana and Regular First Appeal No. 1553 of 1992, State of Haryana v. Mohinder Singh as it will squarely apply to all other cases. The evidence was led in this case even before the learned Additional District Judge.
7. It is contended on behalf of the State of Haryana that the awarding of Rs. 2,66,400/- is not only excessive but is not based on any prudent principle of computation for determining the market value of the acquired land at the relevant time. It is stated that the sale instances which have been taken into consideration were not proved in accordance with law, they were such small pieces of land that they could not fairly indicate the market value of the land in huge acquisition of the present kind, the learned Additional District Judge has erroneously ignored Ex.R.1 from the zone of consideration and keeping in view the location and potential of the land at best a sum of Rs. 52,000/- could only be awarded by the learned Additional District Judge.
8. On the other hand, the learned counsel appearing for the claimants submitted that Ex.R.1 cannot be applied to the present case even if it has attained finality in its own way. He further contended that based on the sale deed, the market value should have been determined without applying any cut or at best 10% out could be applied while giving at least 6% value in increase for a period of 6 months i.e from the date of the sale deeds till the date of notification. As such he prayed for higher amount of compensation to be awarded to the claimants.
9. In order to appreciate the respective contentions, it will be appropriate to make a reference at a very outset to the sale instances taken into consideration by the learned Additional District Judge:-
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Exhibit Date Area Amount of Sale Sale Price Per
Sold consideration Acre
(Rs.) (Rs.)
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P-3 07.07.1982 5 Marlas 10,000/- 3,20,000/-
P-4 19,08.1982 19 Marlas 47,500/- 4,00,000/-
P-5 07.07.1982 5 Marlas 12,500/- 4,00,000/-
P-6 19.08.1982 13 Marlas 31.250/- 3,84,640/-
P-7 24.06.1982 1 Kanal 15,000/- 3,60,000/-
P-8 24.06.1982 6 Marlas 10,000/- 2,66,666/-
Out of these sale deeds Ex.P.5 and Ex.P.20 have not been proved in accordance with law inasmuch as in these cases neither the vendor nor the vendee was examined in Court. Further more, no witness was summoned from the Registrars office to prove the fact that the consideration reflected in the documents was actually paid and was a genuine one. Resultantly, both Ex.P.5 and Ex.P.20 cannot be taken into consideration as they have not been proved in accordance with law as stated by the Hon’ble Supreme Court of India in the case of A.P. State Road Transport Corporation, Hyderabad v. P. Venkalal, A.I.R. 1997 Supreme Court 2600 and Meharban and Ors. etc. etc. v. State of U.P. and Ors., A.I.R. 1997 Supreme Court 2664.
Exhibits P.3, P.4, P.6 and P.7 have bee proved in accordance with law. Certainly these sale instances are of small pieces of land varying from 150 square yards to 600 square yards. The sale instances relates to the period June, 1982 to August, 1982. The notification under Section 4 was issued in December, 1982. As such seen from the time point of view they are certainly relevant. 10. The reasoning given by the learned Additional District Judge in relation to Ex.P.16 is certainly liable to be sustained as the said judgment relate to notification much subsequent to the notification in the present case. The notification in that case was dated 3.8.1988 in the present case it is of 1982.
11. Ex.R.1 was certainly relevant for determining the controversy in issue in the present case. Ex.R-1 is the judgment passed by the learned Additional District Judge, Kurukshetra on 29.10.1988 in relation to the acquisition of the land under the same very notification. In Ex.R.1 sale instance Ex.A.1 and A.2 were rejected and not taken into consideration by the learned Additional District Judge on the ground that they were two small pieces of land to be taken into consideration for the acquisition in question. Ex.A.1 and A.2 as referred in Ex.R.1 are Ex.P.4 and P.6 in the present case. They relate to the land measuring about 13 Marlas and 19 Marlas respectively which nearly means 400 square yards and 570 square yards. Such sale instances cannot be totally considered as irrelevant and especially when no other evidence is available on record to determine the fair market value of the land in question.
12. In order to arrive at a reasonable basis for final determination of the fair market price payable to the land owners, it will be appropriate to take average of the sale instances which are otherwise admissible in evidence in accordance with law. Thus, Exhibits P.3, P.4, P.6 and P.7 would be the relevant pieces of evidence. In the case of Land Acquisition Officer Revenue v. L. Kamalamma (Smt.) dead by LRs. and Ors., (1998)2 Supreme Court Cases 385, the Hon’ble Supreme Court of India has clearly held that sale instances of small pieces of land cannot be out rightly rejected. However, it has also been settled by the Hon’ble Supreme Court in the case of State of M.P. v. Hari Shankar Goel and Anr., 1996(II) Land Acquisition Law 438 = 1996 L.A.C.C. 615 that compensation can be awarded even in larger acquisition in square yards.
13. The cumulative effect of the above settled principle of law is that this Court should apply the principle of averages to determine the basic gross price of the land in question. Average of Exhibits P.3, P.4, P.6 and P.7 can be computed as under:-
Ex. P.3 : 3,20,000.00 Ex. P-4 : 4,00,000.00 Ex. P-6 : 3,84,640.00 Ex. P-7 : 3,60,000.00 Total : 14,64,640.00
Therefore, gross estimated value which should form basis of determination of fair market price payable to the claimants would be Rs. 3,66,160.00 per acre.
Location, potentially and extent of deduction to be applied to the above value:-
In regard to location and potential of the land, no serious contest was raised on behalf of the State. The learned Additional District Judge in relation to this aspect has held as under: –
“From the statements of these witnesses and the site plan, Ex.P.1 and Aks-sajra Ex.P.2 no doubt is left that the acquired land adjoins the Abadi of the township of Shahabad and it is in the municipal limit of Shahabad. This fact has also not been denied by the learned Government Pleader appearing on behalf of the respondent. It is in the evidence that around this land there exists Cinema Halls, Cold Storages, Rice Shellers etc. The acquired land being within the municipal area and various establishment having sprung up before the acquisition. The acquired land had great potential value for development of commercial and industrial purposes.”
14. The learned Advocate General -appearing for the State argued that it was recorded in the revenue record that the land in question was an agricultural land. However, to that effect there is no evidence available on record. In fact the respondents produced no evidence except Ex.R.1. Even Ex.R.1 does not fully establishes that the land in question is an agricultural land. The statement of PW1 on oath which remained unrebutted clearly stated that the acquired land was within Municipal limits of Shahabad and some of the other part of the acquired land was abutting the road. PW2 proved Ex.P.1 showing the correct site as well as Aksh-Shajra Ex.P.2. All these documents do not reflect and prove on record that the land in question was agricultural land which had no definite potential of development for commercial and industrial purposes.
15. In a very recent judgment in the case of Union of India v. Dr. Balbir Singh, R.F.A. No. 2382 of 1997, decided on 10.12.1998, it was held by this Court as under:-
“The contention of the learned counsel for the respondents is that in view of the law laid down by the Hon’ble Supreme Court in the cases of Hansanali Walimchand (dead) by LRs v. State of Maharashtra, 1998(1) L.A.C.C. 120; Jhandoo (dead) by LRs. and Ors. v. Union of India, 1997(1) L.A.C.C. 402 and The Land Acquisition Officer Revenue, Divisional Officer, Chittoor v. Smt. L. Kamalamma (dead) by LRs. and Ors., 1988(1) L.A.C.C. 116. the cut of 33% to 50% ought to have been applied by the learned trial Court even on the amount awarded to the land owners falling within the 100 feet belt created by the learned trial Court. In other words, a cut of 33% to 50% ought to have been applied- on the amount of Rs. 7,25,000/- awarded and thereupon further cut should have been applied in awarding of the amount in regard to the lands located beyond 100 feet depth.”
“What is the purpose of applying the cuts had been clearly elucidated by the Hon’ble Supreme Court of India in the case of Smt. L. Kamalamma (dead) through LRs and Jhandoo through LRs. referred supra. It was stated that 1/3rd of the market value has to be deducted towards development charges. The factors like lumpsum payment, its investment value, the time factor involved in formation of layouts and the period for which the money in addition thereto shall be locked, would be relevant for applying the cut. Consequently, in these cases the Hon’ble Supreme Court applied 33% cut while in the other raised the cut to 50% from 25% awarded by the High Court).”
16. It is clear from the above well settled principles of law that the principle of deduction or cut should normally be applied for final determination of the fair market value of the land payable to the claimants. In only one case i.e. Bhagwathula Samanna v. Special Tehsildar and Land Acquisition Officer, 1991 Land Acquisition Laws 318, the Hon’ble Supreme Court has held that 1/3rd deduction was not permissible and held that if smaller area within a large, track is fully developed and is suitable for buildings etc., it may not be necessary to apply the principle of deduction. However, all subsequent decisions of the Hon’ble Supreme Court of India have taken a view that in all cases the element of deduction should be applied.
17. Applying these principles to the facts and circumstances of the present case, I am of the considered view that higher element of deduction need be applied for determination of fair market value of the land in question. Amongst others, specific reasons are that the sale instances which have been proved on record are comparatively of plots or smaller pieces of land and as such they cannot indicate the complete, just and fair market value of the land at the relevant time. Secondly, the development charges which have to be incurred by the State for the purposes of developing the area, have to be kept in mind by the Court. Thirdly, the extent of commercial or residential potential of the land seen in the light of the location justifies deduction.
18. In the case of K.S. Shivadevamma and Ors. v. Assistant Commissioner and Land Acquisition Officer and Anr., (1996)2 Supreme Court Cases 62, the Hon’ble Supreme Court applied ‘the cut of 53% under Building Rules and further deduction of 33-1/3% on account of development charges, and the Hon’ble Supreme Court held as under:- “We are inclined to agree with the learned counsel that the extent of deduction depends upon development need in each case. Under the Building Rules 53% of land is required to be left out. The Court has laid as a general rule that for laying the roads and other amenities 33-1/3% is required to be deducted. Where the development has already taken place, appropriate deduction needs to be made. In this case, we do not find any development had taken place as on that date. When we are determining compensation under Section 23(1), as on the date of notification under Section 4(1), we have to consider the situation of the land development, if already made, and other relevant facts as on that date. No doubt, the land possessed potential value, but no development had taken place as on the date. In view of the obligation on the part of the owner to hand over the land to the City Improvement Trust for roads and for other amenities and his requirement to expend money for laying die roads, water supply mains, electricity etc., the deduction of 53% (and further deduction towards development charges @ 33-1/3%, as ordered by the High Court was not illegal.”
Further, in a very recent judgment, the Hon’ble Supreme Court of India in the case of Hasanali Walimchand”s care (supra), while observing that 50% should be the reduction while determining such value, held as under:- “Indeed the land unlike the Housing Society Land was not developed and, therefore, proper course for the High Court would have been that it should have taken note of development charges and made some suitable deduction for the same. The reference Court had made the Award based on the material on the record, but had failed to notice that the acquired land was still undeveloped. It, therefore, appears appropriate to us to set aside the impugned judgment and order of the High Court and restore the award made by the reference court with the modification that out of the amount fixed by the reference Court @ Rs. 1/- per square feet, deduction to the extent of 50 paise per square foot, towards development charges, shall be made and compensation calculated on that basis and shall paid to the claimants in accordance with their holdings, along with the statutory benefits of solatium and interest.”
19. In view of the above facts and circumstances, I am of the considered view that a total cut of 50% could be applied to determine the market value of the land payable to the claimants. The amount payable, thus, would be calculated as under:- Rs.3,66.160.00 / 2 = Rs. 1,83,080.00. In relation to building tubewells trees etc. supplementary award No. 21 was issued by the Collector dated 17.3.1987 wherein he had awarded amounts on these counts to the various claimants. Request for any enhancement by the claimants was rejected by the learned Additional District Judge as found no evidence which would justify the enhancement of the awarded amount be a Collector on this amount. Before this Court learned counsel appearing for the parties clearly stated that neither the State was praying for rejection of the amount awarded nor the claimants were pressing claim for enhancement in this regard. Consequently, all claims for enhancement in this regard are declined.
20. Resultantly, the appeals preferred by the State are partly accepted while the appeals preferred by the claimants are dismissed. The claimants would be entitled to get compensation at the rate of Rs. 1,83,080/- per acre i.e. Rs. 37,82 per square yard along with solatium, interest and statutory benefits under Section 23(1-A), 23(2) and 28 of the Land Acquisition Act. The appeals are accordingly, disposed of leaving the parties to hear the costs.