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Madhya Pradesh High Court · body

2013 DIGILAW 1012 (MP)

State of M. P. v. Ravindra Kumar Sharma

2013-08-27

G.D.SAXENA

body2013
JUDGMENT : G.D. Saxena, J.;- This appeal under Section 54 of the Land Acquisition Act 1894 has been preferred by the State against a judgment dated 24th September 1998 in Civil Reference Case No. 18/1998 by the First Additional Judge to the court of District Judge, Morena (M.P.) directing thereby the appellant/State to pay a sum of Rs.1,35,000/- as an Award alongwith 12% annual interest from the date of the Notification, 30% solatium on the awarded award amount with interest in accordance with the provisions of section 34 of the Act. 2. The facts necessary for the decision of this appeal are that a Notification dated 30th March 1991 for proposed acquisition of the land under Section 4 of the Land Acquisition Act, ad-measuring 4500 sq. ft. which is a part of Survey No. 1041, situated in village Jora Khurd, District Morena for the purposes of Chambal Awasiya Yojna was published in M.P. Rajpatra dated 19th April 1991 and in two news-papers having wide circulations in the area. After complying with the procedure as laid down in law declaration for the land required under Section 6 of the Land Acquisition Act was published. Thereafter on making enquiry, the Collector passed the award in favour of the owners/beneficiaries whose lands were acquired alongwith interest and solatium. Being aggrieved by the award, the owners/beneficiaries including the respondent filed the application under Section 18 (1) of the Land Acquisition Act before the Collector for making a reference to the District Judge for consideration of their grievance. In Reference Case No. 18/1998, the District Judge after considering the evidence as adduced and hearing the parties passed the award under Section 23 of the Land Acquisition Act and thereby awarded a sum of Rs. 1,35,000/- on the basis of the guidelines fixed by the Collector from time to time which was verified from the sale-deeds of the similar lands. Being aggrieved by the Award passed by the District Judge, the appellant-State has preferred this appeal. 3. Learned Govt. Advocate appearing for the appellant/State contended that the impugned order of Award so passed is against the fact, evidence on record and the law. It is submitted that the learned Collector after considering the material passed the appropriate amount for acquisition of the lands on legal requirements at Rs. 3. Learned Govt. Advocate appearing for the appellant/State contended that the impugned order of Award so passed is against the fact, evidence on record and the law. It is submitted that the learned Collector after considering the material passed the appropriate amount for acquisition of the lands on legal requirements at Rs. 38,500/-per Bigha, which was prevailing on the land transactions at the relevant time and the Reference court on wrong notion on the plot value of the small piece of land determined compensation which was not on reasonable grounds. Therefore, it is prayed that by allowing the appeal, the award under appeal may be quashed and the Award passed by the Collector may be upheld. 4. By submitting the cross objection under Order 41 Rule 22 of C.P.C., it is contended that the Award passed by the Collector under Section 11 of the Act and the Award passed in the Reference Case are on lower side. It is submitted that no valuation of the land has been made properly as per provisions of the law and the evidence as gathered and adduced by the applicant before the Reference court. It is admitted that the questioned land belonging to the respondent was a piece of land which was not useful for agriculture purposes and was situated near Morena town, nearby the place of National Highway, therefore the award calculated in terms of agricultural land is not proper. The Reference court also while awarding compensation did not consider this aspect of the matter and awarded compensation on plot value of the small piece of land. Therefore, it is prayed that the compensation on the basis of the evidence so adduced and on considering the prevailing law may be modified. 5. Heard the learned counsel for the parties. Also perused the record of the Reference court and the law applicable to the case. 6. The question for consideration in this appeal is whether the Award passed by the Reference court is based on lower side and against the recognized principles of law ? 7. On factual aspects, it is admitted that the land in question with other lands had been acquired for construction of residential colony for the employees of Chambal Irrigation under Notification dated 30th March 1991 published in M.P. Rajpatra dated 19th April 1999 and possession of the lands was taken over by the Acquisition Officer. 7. On factual aspects, it is admitted that the land in question with other lands had been acquired for construction of residential colony for the employees of Chambal Irrigation under Notification dated 30th March 1991 published in M.P. Rajpatra dated 19th April 1999 and possession of the lands was taken over by the Acquisition Officer. The Award after due inquiry, under Section 11 of the Act was passed by the Collector, Morena. It is also admitted that the land acquired including the land in question was situated at A.B. National Highway passing through Morena township and within the local limit of Municipal area and that the adjoining lands were used for residential/commercial purposes. It is also not in dispute that the purpose of acquiring the lands was for construction of residential colony for the employees of Chambal Irrigation. It is also not in dispute that the area of the acquired land belonging to respondent was comprised in Survey No. 1041 having 4500 square feet land. Looking to the nature of the area, same was not used for agriculture and was lying vacant. Further the questioned land was not developed for other purposes. It is also not disputed that the Collector under Section 11 of the Act passed the Award for compensation @ Rs. 38,500/- per Bigha of the land in favour of the owners whose lands were acquired and on reference under Section 18 of the Act, the Reference court passed the award on plot value of the small piece of the land belonging to the respondent. Being aggrieved by the award passed by the Reference court, both the parties have filed the appeal and crossappeal. 8. Before considering the dispute involved in this case, it would be useful to refer Section 23 of the Act. Section 23 reads as under: “23. Being aggrieved by the award passed by the Reference court, both the parties have filed the appeal and crossappeal. 8. Before considering the dispute involved in this case, it would be useful to refer Section 23 of the Act. Section 23 reads as under: “23. Matters to be considered in determining compensation.-(1) In determining the amount of compensation to be awarded for land acquired under this Act, the Court shall take into consideration; firstly, the market value of the land at the date of the publication of the notification under Section 4 sub-section (1); secondly, the damage sustained by the person interested, by reason of the taking of any standing crops or trees which may be on the land at the time of the Collector’s taking possession thereof; thirdly, the damage (if any) sustained by the person interested, at the time of the Collector’s taking possession of the land, by reason of severing such land from his other land; fourthly, the damage (if any) sustained by the person interested, at the time of the Collector’s taking possession of the land, by reason of the acquisition injuriously affecting his other property, movable or immovable, in any other manner, or his earnings; fifthly, if, in consequence of the acquisition of the land by the Collector, the person interested is compelled to change his residence or place of business, the reasonable expenses (if any) incidental to such change; and sixthly, the damage (if any) bona fide resulting from diminution of the profits of the land between the time of the publication of the declaration under Section 6 and the time of the Collector’s taking possession of the land. (1-A) In addition to the market value of the land, as above provided, the Court shall in every case award an amount calculated at the rate of twelve per centum per annum on such market value for the period commencing on and from the date of the publication of the notification under Section 4 sub-section (1), in respect of such land to the date of the award of the Collector or the date of taking possession of the land, whichever is earlier. Explanation .- In computing the period referred to in this sub-section, any period or periods during which the proceedings for the acquisition of the land were held up on account of any stay or injunction by the order of any court shall be excluded. (2) In addition to the market value of the land, as above provided, the Court shall in every case award a sum of thirty per centum on such market value, in consideration of the compulsory nature of the acquisition.” Section 23(1) of the Act charges determination of the amount of compensation for the acquired land taking into account firstly the market value of the land at the date of the publication of the notification under Section 4(1) of the Act. The question, therefore, would be that what would be the market value of the land. The market value prevailing on the date of the notification including potentiality the land possessed of or realisable potentiality existing as on the date of the notification would be the relevant fact for consideration to determine market value.” (9) The burden of proving inadequacy of the amount is to be discharged by the claimant himself and he has to satisfactorily furnish basis for determining market value of acquired land. In case of Land Acquisition Officer Vs. Karigowda, (2010) 5 SCC 708 , at page 723 : the Hon. Apex court observed as follows :- 29. It is a settled principle of law that the onus to prove entitlement to receive higher compensation is upon the claimants. In Basant Kumar v. Union of India this Court held that the claimants are expected to lead cogent and proper evidence in support of their claim. Onus primarily is on the claimants, which they can discharge while placing and proving on record sale instances and/or such other evidences as they deem proper, keeping in mind the method of computation for awarding of compensation which they rely upon. In this very case, this Court stated the principles of awarding compensation and placed the matter beyond ambiguity, while also copulating the factors regulating the discretion of the Court while awarding the compensation. (10) In Chaturbhuja Modi v. State of Orissa, (2010) 12 SCC 234 , the Hon'ble Apex Court held that where large area is the subject-matter of acquisition, rate at which small plots are sold cannot be a safe criterion. (10) In Chaturbhuja Modi v. State of Orissa, (2010) 12 SCC 234 , the Hon'ble Apex Court held that where large area is the subject-matter of acquisition, rate at which small plots are sold cannot be a safe criterion. It is relevant to reproduce the observations made at page 237 which is as under :- 12. The only evidence that could be considered and relied upon is Ext. 1. The following criteria provide a good indication of whether a sale deed may be comparable to the one in question: (1) it must be within a reasonable time of date of notification under Section 4(1) of the Act; (2) it should be a bona fide transaction; (3) it should be a sale of the land acquired or of the land adjacent to the one acquired; and (4) it should possess similar advantage. 13. Although the land whose sale is evidenced in Ext. 1 is not an excellent comparison in terms of area, the same indicates sales transaction completed at around the same time as the acquisition of the said land. Moreover, Ext. 1 also concerns a plot that is in geographical proximity to the acquired land. There being no other evidence on record, and since we are not inclined to remand the matter after such a long delay, we would rely on Ext.1 with necessary scrutiny and caution. Reliance could be placed on the said documentary evidence for determining and assessing the compensation of the acquired land after giving the necessary deduction. 14. The High Court appears to have taken notice of the aforementioned criteria and has given some discount in compensation as the land under Ext. 1 is a very small piece of land and the land acquired in the case in hand is much larger in size. After giving the said discount, the High Court computed the compensation at the rate of Rs. 3,00,000 per acre for the acquired land. While determining compensation, some conjecture is unavoidable as it is generally not possible to have any documentary evidence of sale of land of similar nature and in the near vicinity of the acquired land. The value shown in Ext. 1 cannot be assessed as the value of the acquired land for the reason that the said land which is sold under Ext. The value shown in Ext. 1 cannot be assessed as the value of the acquired land for the reason that the said land which is sold under Ext. 1 is a very small piece of land, whereas the acquired land being a large tract of land. 15. This Court has held in Administrator General of W.B. v. Collector, Varanasi that where large tracts of land are required to be valued, valuation in transactions with regard to small plots is not to be taken as the real basis for determining the compensation of large tracts of land. It follows that where the market value of a large block of land is determined on the basis of sale transactions for smaller property, appropriate deduction has to be made for making allowance for the loss of the acquired land required to be used for internal development such as construction of roads, drains, sewers, open spaces and the expenditure involved in providing other amenities like water, electricity, etc. The extent of area required to be set apart has to be assessed by the court having regard to the shape, size and situation of the block of land concerned. 11. In Ashrafi Vs. State of Haryana, (2013) 5 SCC 527 , at page 543 : it is held that valuation of the land differs from that of land used for house sites and therefore for determining value of such agricultural land, deductions should be made in respect of development expenses, interest on the outlays for the period of diferment of realisation of the price, profits on venture, etc. Relevant paras from the aforesaid decision are quoted below :- 48. This brings us to the last part of the submissions made with regard to the amount of deduction effected in respect of the various properties. The general cut imposed is at a flat rate of 40%, which, in our view, is not warranted on account of the fact that the lands in question have lost their character and potentiality as agricultural lands and have more or less been converted into lands which were ready for use for the purpose of construction. The general cut imposed is at a flat rate of 40%, which, in our view, is not warranted on account of the fact that the lands in question have lost their character and potentiality as agricultural lands and have more or less been converted into lands which were ready for use for the purpose of construction. Taking Ms Agarwal’s submissions regarding the factors which determine deduction towards development cost, such as location and potentiality, into account, we are of the view that a deduction of 33-1/3% would be reasonable on account of the passage of time and the all-round development in the area which has made it impossible for the lands to retain their original character. 49. Accordingly, we direct that except where we have provided otherwise, wherever a deduction of 40% had been made, the same should be altered to 33-1/3% and the compensation awarded is to be modified accordingly. 12. The next question for consideration is as to whether the respondent has been properly compensated for acquirement of his land. 13. While deciding on the compensation to be paid for acquisition of the land, the court is duty bound to ensure that compensation determined is just and fair not only to the individual whose property is acquired but also to the public which has to pay for it. The market value of large area cannot be determined by rates of small plots. The Collector correcting undervaluation of different categories of land, though not strictly relevant may form the basis for arriving at a reasonable conclusion. The market value would depend upon a large number of facts including the nature and quality of the land. The norms applied for determination of market value of agricultural land and homestead land are different. 14. Now, coming to the scenario of the present case, it appears that the proposed acquired land belonging to the respondent is a small plot of land purchased by him for his residential accommodation and the nearby lands not acquired were also used as residential area and after acquisition of the land, the purpose of the acquired land was for development of the residential colony for the employees of Chambal Irrigation. On perusal of the record of Reference court, it appears that by the saledeed dated 14th December 1988, marked as Ex.P/2, one diverted plot area 1800 square feet was sold for Rs. 85,000/-. On perusal of the record of Reference court, it appears that by the saledeed dated 14th December 1988, marked as Ex.P/2, one diverted plot area 1800 square feet was sold for Rs. 85,000/-. By next sale-deed dated 23rd February 1988, marked as Ex.P/6, the plot having an area of 76 x 14 feet was sold in Rs. 30,000/-. During proceedings before the Reference court, by sale-deed dated 25th April 1996, marked as Ex.P/4, one plot having an area of 75 x 24 feet was sold for Rs. 1,96,000/-. These are the comparable sale instances of similar lands in the neighbourhood, which are the best guiding factors to arrive at fair estimate of amount of compensation. It is seen that by the time of acquisition of the land in question, the Collector's rate for sale of the particular area was Rs. 60/- per square feet and Rs. 90/- per square feet for commercial purposes. Prior to acquisition of the land in question, same was declared within municipal limits and also situated nearby place at A.B. National Highway Road. So, the possibility of development for residential or commercial or composite use cannot be denied. In these circumstances, the land in question deserved a higher rate but in the reference proceedings, the learned Reference court has not assigned any cogent reason for determining compensation @ Rs. 30/- per square feet. Taking into account the extent of land covered by the exemplar sale deeds, the collector's rate for sale of the particular area, i.e., Rs. 60/- per square feet therefore was appropriate and same is accordingly fixed. There is as such manifest error in the Award passed by the Reference court. Now, the respondent is held entitled for receiving compensation @ Rs. 60/- per square feet. Thus, the total compensation would come to 4500 x 60 = Rs.2,70,000/-. As held in the case of Ashrafi (supra) regarding deduction for development charges to make the land suitable for the purpose the land was acquired, after deducting 30% on Rs. 2,70,000/-, Rs. 1,89,000/-, (Rs. One lac eighty nine thousand only) would be payable to the respondent alongwith the solatium @ 30% on this amount, i.e., Rs. 56,700/- with 12% simple interest from the date of Notification of acquisition of land as well as interest in accordance with the provisions of section 34 of the Act, within course of three months from today. 1,89,000/-, (Rs. One lac eighty nine thousand only) would be payable to the respondent alongwith the solatium @ 30% on this amount, i.e., Rs. 56,700/- with 12% simple interest from the date of Notification of acquisition of land as well as interest in accordance with the provisions of section 34 of the Act, within course of three months from today. If any amount is received by the respondent/ owner of the acquired land and interest, if paid, in that condition, same shall be deducted from the compensation amount. 15. Consequently, the appeal filed by the State fails and is dismissed. Counter appeal filed by the owner/respondent is allowed to the extent of enhancement of the award amount mentioned above.