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1996 DIGILAW 944 (ALL)

U P STATE ELECTRICITY BOARD LUCKNOW v. LAXML NARAIN

1996-08-23

S.K.PHAUJDAR

body1996
S. K. PHAUJDAR, J. This first appeal is directed against the award of the Hnd Addl. Distt. Judge, Agra, recorded on a reference under Section 18 of the Land Acquisition Act, 1894 (in short the Act) in LA case No. 181 of 1986 which was started before the Hnd Addl. District Judge at Agra. The reference was made on the basis of the claim made by Laxmi Narain (the present respondent 1) in connection with an award dated 15-4-1985. His land in plot No. 101 measuring 3 bighas, 15 biswas and 10 biswancies (10405 sq. yards) in Mauza Ashafabad, District Firozabad, was ac quired for construction of a 220 KV sub station and staff quarters of the U. P. State Electricity Board. Anotification was made under Section 4 (1) of the Act on 19- 9-1980 and it was followed by a notification under Section 6 (1) of the Act on 1-11-1980. The claimant had filed his claim before the Land Acquisition Officer and compensa tion was awarded for the acquired 10405 sq. yards of land at the rate of Rs. 18. 90 per sq. yard. The Land Acquisition Officer awarded an additional amount of 12 per cent per annum on the above sum from the date of notification under Section 4 up to the date of possession. He also allowed solatium at the rate of 30 percent and interest at the rate of 9 percent from the date of taking possession for a period of one year and, thereafter, at the rate of 15 percent per annum. A further amount of Rs. 2703/- was awarded for a well standing on the land. In all, a payment of Rs. 3,75,240. 56 p. was made to the claimant. 2. The claimant had laid a claim at the rate of Rs. 10/- per sq. ft. i. e. Rs. 90/- per sq. yard before the Land Acquisition Officer and the award of the Land Acquisition Officer dissatisfied him and on his prayer the reference under Section 18 of the Act was made on 11-3-1986. The claimants asserted before the reference Court that the compensation awarded was inade quate and he should have been paid at the rate of Rs. 90/- per s q. yard as the Sand acquired was situated on the Agra-Kanpur road near the town of Firozabad and had the potentially of a building site. The claimants asserted before the reference Court that the compensation awarded was inade quate and he should have been paid at the rate of Rs. 90/- per s q. yard as the Sand acquired was situated on the Agra-Kanpur road near the town of Firozabad and had the potentially of a building site. It was stated that facilities of water, electricity, tube- well, railways and roadways were available near and surrounding the property and the Land Acquisition Officer had failed to consider the cost of develop ment and of the trees at the time of giving the award. 3. The claim was opposed by the present appellant contending that the compensation awarded was adequate and proper and was not liable to be enhanced. It was stated that the land was situated away from the road and was only an agricultural land. There were no facilities of water, electricity etc. as alleged by the claimant. Interest and other payment were also duly awarded. The land had no poten tiality as a building site and the claim was liable to be dismissed. The reference Court framed three issues as follows: 1. Whether the compensation awarded by the Special Land Acquisition Officer was inade quate and, if so, what would be the reasonable, compensation for the land acquired. 2. Whether the claimant was entitled to solatium and interest at the enhanced rate; and 3. To what relief, if any, was the claimant entitled ? 4. On issue No. 1 the reference Court considered the sale-deeds produced as ex emplars and was of the view that the claimant was entitled to get compensation at the rate of Rs. 651- per sq. yard. On the second issue, the reference Court found that the claimant had been awarded solatium, additional amount and interest at the rates he had claimed. He only ob served that these rates would be applicable on the enhancement made by the refer ence Court. Accordingly, he decided issue No. 3 also to conclude that the claimant was entitled to a compensation of Rs. 6,76,325/- and on that amount he was fur ther entitled to an additional sum at the rate of Rs. He only ob served that these rates would be applicable on the enhancement made by the refer ence Court. Accordingly, he decided issue No. 3 also to conclude that the claimant was entitled to a compensation of Rs. 6,76,325/- and on that amount he was fur ther entitled to an additional sum at the rate of Rs. 121- percent per annum from 19-9-1980 to 25-6-1981 and to interest at the rate of 9 percent per annum on the aforesaid amount w. e. f. 25-6-1981 for one year and thereafter at the rate of 15 percent till the date of actual payment and the amount awarded/received by him shall be deducted from the sum awarded by the reference Court. 5. In this appeal, learned Counsel for the parties did not question the rate of additional payment, interest or solatium as granted by the Land Acquisition Officer and as confirmed by the reference Court. The amount of compensation, however, rather the rate of compensation per sq. yard of land was seriously disputed by the appellant. The learned Counsel for the appellant also supplemented his oral sub missions by a written note of arguments quoting copiously the case laws relied on by him. Learned Counsel for the respon dent also analysed the evidence to say that the reference Court had rightly enhanced the amount and he also relied on certain case laws. 6. The enhancement was made with reference to certain sales which were proved by producing certain copies of sale-deeds. These sale-deeds were challenged on several grounds. It was stated that without production of the original sale deeds the certified copies could not have been acted upon. It was further stated that the sale-deeds could not have been read as exemplars as they were not of the vicinity of the suit-property or of the time of ac quisition. It was further argued that without examination of vendor and vendee of the sale-deeds those could not have been relied upon. The sale-deed were also challenged on the ground that the same were for small areas and the same rate could not have been given to a large chunk of land. It was stated further that the land was simply an agricultural one without any facility of electricity as admitted by the claimant and the compensation could not have been awarded at the rate prevalent for abadi lands. It was stated further that the land was simply an agricultural one without any facility of electricity as admitted by the claimant and the compensation could not have been awarded at the rate prevalent for abadi lands. The learned Counsel for the respondent submitted that the land in question was very near the Firozabad township and had the potentiality of a building site and could have fetched in the open market a better price than even the rate awarded by the reference Court. 7. I may now take up the case-laws that have been referred to in the written notes. In support of the contention that the sale-deeds for small area could not act as exemplars for a big area of land under acquisition, the learned Counsel for the appellant relied on a decision reported in 1996 (1) SCC at page 310 (Prahlad Singh and other v. Union of India ). In this case, it was observed, with reference to Section 23 of the Act in fixing the valuation of land for compensation that the price fetched for small plots cannot be applied to large ex tent of land. It was a case where 8. 40 acres of land was acquired out of which the land of the appellants was small in extent. The claimant proposed that the compensation should be enhanced from Rs. 10 per sqr. yard to Rs. 12 per sq. yard on the basis of a sale-deed of 560 sq. yard in which the price was fixed at Rs. 12 per sq. yard. The Court was of the view that since it was a small extent of land which formed the basis of the case to determine compensation at the rate of Rs. 10 per sq. yard, the same price would commend when large extent of land is offered for sale to willing purchaser. In this case, however, the High Court had fixed a rate of Rs. 10 per sq. yard in another case of that area. In this context reliance was placed on another decision as 1996 (7) SCC 3 (Ratan Lai Gupta and others v. Union of India ). In this case, however, the High Court had fixed a rate of Rs. 10 per sq. yard in another case of that area. In this context reliance was placed on another decision as 1996 (7) SCC 3 (Ratan Lai Gupta and others v. Union of India ). It was held herein that when the market value of the acquired land is to be determined on the basis of small plots of land the same price cannot be expected to be realised when a large tract of land is offered to a willing purchaser by a willing vendor. It was further observed herein that the price of land in a developed area cannot be adopted as a pointer to determine the compensation of lands in an undeveloped area. The same view was ex-presed by the Supreme Court in another case as reported in the case 1995 (2) SCC 428 (Nikky v. Union of India ). In this case also two sale instances of 1971 and 1974 was proposed to be relied on for deter mination of the market valuation of the land acquired, and the Court was of the view that those instances were for small extent of lands and they did not provide reasonable and safe basis nor can be relied on to. determine compensation of large extent of land. The finding of the High Court determining the rate of compensa tion at the rate of Rs. 50000/- per acre was held proper. It was a land near Chandigarh and acquisition was made for estab lishment of a brick kiln for Chandigarh Housing Board. Initially the compensa tion was at the rate of Rs. 21. 000/- to Rs. 48,000/- according to classification of the land made by the Collector. The reference Court made it uniformly irrespective of classification, at the rate of Rs. 27,000/- per acre. The High Court enhanced the com pensation to Rs. 50000/- per acre and still dissatisfied the appellant went to the Supreme Court for further enhancement and the prayer was refused. The exemplars relied upon by the appellant were two sales in 1971 and 1974 showing the price rate at Rs. 37,500/- to Rs. 62. 000/- per acre and upon those exemplars the above observa tion was made. The Bombay High Court, in the case AIR 1969 Bomb. The exemplars relied upon by the appellant were two sales in 1971 and 1974 showing the price rate at Rs. 37,500/- to Rs. 62. 000/- per acre and upon those exemplars the above observa tion was made. The Bombay High Court, in the case AIR 1969 Bomb. 9, also held that when the land acquired was of a large area of about 5 acres, the price paid for small plots of land could not form the basis for ascertaining the market value of the acquired land notwithstanding the fact that the lands sold therein were in the vicinity of the acquired land. In the decision of the Supreme Court, 1995 (1) SCC 717 , also there was an observation that in determining the marked value of a big plot, evidence price of small places of land was not relevant. A similar view was taken by the Orissa High Court in the case of Land Acquisition Collector v. Santa Singh, 1992 (2) Land Acquisition Laws 37. 8. The other challenges directed against the sale-deed were that the originals were not produced and the ven dor and vendee of the sale-deed, were not examined. On this point, the appellant relied on a decision of the Supreme Court 1995 (7) SCC 347 (State ofu. P. v. Rejendra Singh ). It was held herein that the burden lies on the claimant, like a plaintiff, to prove proper, just and adequate compen sation to the acquired land. Thereafter the burden would shift on the State to disprove it. It was held further the sale transactions were not evidenced unless the vendor and vendee had been examined in the court. It was alsri held herein that the reference Court could carefully evaluate the evidence and determine the market-fee avoiding unjust burden on the exchequre. The matter arises out of an acquisition of more than 5 acres of agricultural land in the district of Azamgarh. The award of the Land Acquisition Officer was made in 1985 and, upon a reference, an award was given by the reference Court in 1988 en hancing the compensation to Rs. 30,000 per acre. Upon first appeal the amount was further enhanced to almost Rs. 70,000/-per acre and, thereafter, upon special leave, the Supreme Court was approached. The award of the Land Acquisition Officer was made in 1985 and, upon a reference, an award was given by the reference Court in 1988 en hancing the compensation to Rs. 30,000 per acre. Upon first appeal the amount was further enhanced to almost Rs. 70,000/-per acre and, thereafter, upon special leave, the Supreme Court was approached. In making the observations, as indicated above, the Supreme Court set aside the awards of the reference Court and of the High Court and remitted that matter to the reference Court to give an opportunity to the parties to adduce evidence and to determine the compensation according to law. In the case under reference Court sale transactions were relied upon but neither the vendors nor the vendee was examined in any case nor was it established that the sale consideration which passed there under was true and the price for which the sales came to be executed were real ones between the willing vendors and willing vendee. The remand order was made under the above circumstances. This was also a case arising from the State of Uttar Pradesh. On the point of production of the original sale-deed, learned Counsel for the respondent relied on Section 90-A of the Indian Evidence Act as introduced in Uttar Pradesh by an amending Act in the year 1954. Under Section 90-A where a registered document or a duly certified copy thereof is produced from any custody which the Court considered proper, the Court was entitled to draw a presumption that the original was executed by the per son by whom it purports to have been executed. Learned Counsel for the respon dent also drew my attention to the provisions of Section 51-A of the Land Acquisition Act as introduced by Amend ing Act No. 68 of 1984. Under this Section a certified copy of a document registered under the Registration Act including a copy given under Section 57 of that Act may be accepted as evidence of the transac tion recorded in such document. Under this Section a certified copy of a document registered under the Registration Act including a copy given under Section 57 of that Act may be accepted as evidence of the transac tion recorded in such document. In the case of State of Uttar Pradesh v. Rejendra Singh, (supra) neither of the parties raised the question of relevancy of Section 90-A of the Indian Evidence Act or Section 51-A of the Land Acquisition Act to the facts of that case and the Supreme Court had not given any interpretation to these two provisions of law allowing the reference Court to presume the truth of a sale trans action from the certified copy of a registered sale-deed. The observation that the vendor or the vendee was to be ex amined is to be seen in the light of the facts agitated before the Supreme Court and it has observed that "it was the duty of the Court to carefully assess the evidence on the touchstone of human conduct and pru dent purchaser". It is to be inferred, there fore, that the requirement of examination of the vendor and the vendee was stated in the peculiar circumstances of the case before the Supreme Court and not in any way as an interpretation of Section 90-A of the Indian Evidence Act or Section 51 -A of the Land Acquisition Act. The contention of the appellant on this point, therefore, is to be discarded. 9. A reading of the judgment indi cates that the Judge took up the question of adequacy of the compensation awarded by the Special Land Acquisition Officer, under issue No. 1. The learned reference Court had narrated the claim of Laxmi Narain regarding the situation of the land and the facilities available thereto. He had also indicated what was the defence evidence on the point. But he had mainly built up his reasonings for enhancement of compensation on the basis of sale-deed dated 5-5-1980,18- 1-1980,20-5-1981. Hed had rightly discarded the other sale-deeds produced by the claimant which had no proximity of time with the acquisition. His reasoning for discarding the sale-deeds produced by the defendants was that it was executed much prior to the date of acquisi tion. It may be noted that this sale-deed produced by the defendants was dated 10-1-1980. He also discarded it on the ground that it was not in the proximity of the acquired land. His reasoning for discarding the sale-deeds produced by the defendants was that it was executed much prior to the date of acquisi tion. It may be noted that this sale-deed produced by the defendants was dated 10-1-1980. He also discarded it on the ground that it was not in the proximity of the acquired land. 10. The land acquired measured a little more than 10,000/- sq. yard. The land was admittedly not an abadi one. Ext. 1 in the reference Court indicated that it measured 3 bighas 15 biswas and 10 bis- wancies out of which 2 bigha and 10 bis-wancies were unirrigated and oaly one bigha and 15 biswas were irrigated. There is nothing in Ext. 1 to indicate that it was an abadi one. Ext. 2 is a sale-deed dated 5-5-1980. This was for sale of land in a residen tial area measuring 1320 sq. ft. and the price paid was Rs. 12,000. This sale was, therefore, for a small piece of land measur ing less than 150 sq. yard in a residential area. Ext. 3 is again a sale of 100 sq. ft. of land for Rs. 800/- and it was admitted that the land was selling at Rs. 5/- per sq. ft. although a higher rate was given in this transaction. The boundary of the land as given in Ext. 2 indicates that there was a lane to the East, houses to the West and South and a road to the North indicating clearly that it was also a building site. This area was also only 11 sq. yard compared to 10000 sq. for the acquired land. Ext. 4 is also for this very land and this sale-deed is dated May, 1981, and the sale price Rs. 1000/ -. The other sale-deed had no proximity of time with the acquisition and it is not necessary to discuss the merits thereof. The defence sale deed was Ext. A-l showing sale of a part of a land measur ing 10 biswa at the rate of Rs. 2. 50 per sq. ft. i. e. Rs. 22. 50 per sq. yard, but here also the area is too small compared to the area under acquisition. 11. The defence sale deed was Ext. A-l showing sale of a part of a land measur ing 10 biswa at the rate of Rs. 2. 50 per sq. ft. i. e. Rs. 22. 50 per sq. yard, but here also the area is too small compared to the area under acquisition. 11. It must, therefore, be hold that the exemplars relied upon by the parties could not have been acted upon in view of the consistent decisions of the Supreme Court that for a large extent of land comparison cannot be made with the sale-price of small areas of land. The learned reference Court also missed to note that the exemplars relied upon by him to enhance the com pensation were all for residential plots whereas the acquired plot was not a residential one. Rather, admittedly, it was an agricultural land. It is true that he had made an observation that the plot was quite near the road and had a building potentiality. On this observation again, the leahied Counsel for the appellant placed a case-law as 1995 (1) SCC 424. It was held herein, in paragraph 5, that Sec tion 24 of the Land Acquisition Act ex pressly prohibited and put an embarge on the Court in taking the factors mentioned in Section 24, as relevant in determining the market value. Potential value for fu ture development is not a relevant point in clause fifthly of Section 24. " 12. Upon these considerations, it must be held that the approach of the learned reference Court in determining the market value was not according to law and the award recorded by it must be set aside. This Court, however, is not left with any standard from which the market value in the area can be assessed. It is necessary to have, evidence on that point on record. Accordingly, the appeal stands allowed. The award of the learned reference Court is set aside and the case is remitted back to the reference Court to give a fresh oppor tunity to the claimant as well as the other party to adduce proper evidence towards determination of market value of the land and then to determine the compensation according to law. The lower Court records and a copy of the present order be sent down immediately to the concerned refer ence Court. The lower Court records and a copy of the present order be sent down immediately to the concerned refer ence Court. The parties are directed to bear their costs, and further asked that they should appear before the reference Court on 23rd September, 1995. Appeal allowed. .