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Madhya Pradesh High Court · body

2016 DIGILAW 337 (MP)

Badam Singh v. State of M. P.

2016-04-26

P.K.JAISWAL, VIVEK RUSIA

body2016
JUDGMENT Jaiswal, J. -- 1. The decision rendered in these two appeals shall also govern the disposal of following connected appeals of land acquired of village – Dharampuri, District – Dhar (M.P.), i.e. the appeals filed by the landowners and the appeals filed by the State. 2. The appeals filed by the appellants/landowners of Village Dharampuri are as under :- Village-Dharampuri : 3. The appeals filed by the State are as under :- Serial No. First Appeals No. Name of the Parties 1. 802/2008 State of M.P. and others v. Madhulatabai 2. 791/2008 State of M.P. and others v. Sardar Kha 3. 801/2008 State of M.P. and others v. Mehbood Kha 4. 786/2008 State of M.P. and others v. Babu Kha Thru. Attor. Abid Kha 5. 794/2008 State of M.P. and others v. Mukhtar Mohd. 6. 776/2008 State of M.P. and others v. Vijay and others 7. 803/2008 State of M.P. and others v. Yakub Kha and another 8. 796/2008 State of M.P. and others v. Manjuranbee 9. 788/2008 State of M.P. and others v. Samotibai 10. 798/2008 State of M.P. and others v. Salim Musalman 11. 790/2008 State of M.P. and others v. Isbul Bee 12. 777/2008 State of M.P. and others v. Hasir and others 13. 782/2008 State of M.P. and others v. Dadusingh 14. 793/2008 State of M.P. and others v. Sabir Mohd. 15. 778/2008 State of M.P. and others v. Kamlabai 16. 787/2008 State of M.P. and others v. Ayodhyabai and another 17. 779/2008 State of M.P. and others v. Abid Hussain 18. 784/2008 State of M.P. and others v. Amtool and others 19. 785/2008 State of M.P. and others v. Kamrunnisa 20. 781/2008 State of M.P. and others v. Kamlabai and others 21. 780/2008 State of M.P. and others v. Sayed 22. 789/2008 State of M.P. and others v. Shaharbano 23. 792/2008 State of M.P. and others v. Najir Thru. Legal Heir Mohd. 24. 775/2008 State of M.P. v. Ibrahim 25. 797/2008 State of M.P. and others v. Chhanga and others 4. 781/2008 State of M.P. and others v. Kamlabai and others 21. 780/2008 State of M.P. and others v. Sayed 22. 789/2008 State of M.P. and others v. Shaharbano 23. 792/2008 State of M.P. and others v. Najir Thru. Legal Heir Mohd. 24. 775/2008 State of M.P. v. Ibrahim 25. 797/2008 State of M.P. and others v. Chhanga and others 4. By this common judgment, we propose to dispose of the aforenoted first appeals as they arise out of the same proceedings from different judgments of the judgment passed by 1st Additional District Judge, Dhar, (M.P.), but are result of a common notification issued under section 4(1) of the Land Acquisition Act, 1894 (in short 'the Act') and thus, are based upon similar facts and documentary and oral evidence of the land acquisition for acquiring land for public purpose for rehabilitation of displaced persons of the villages which came under submergence due to increase of height of Sardar Sarovar Dam of Tahsil - Dharampuri in District Dhar. 5. For the sake of convenience the facts are borrowed from First Appeal No.615/2008 (Badamsingh v. State of M.P. and others) filed by the landowners (claimants) of Village Dharampuri, District Dhar and First Appeal No.795/2008 (State of M.P. and others v. Badamsingh) filed by the State. section 4(1) Notification under the Land Acquisition Act, 1894 came to be published in the Official Gazette on 2.4.2004. Total 59.367 hectares land of Village - Dharampuri in District Dhar for “rehabilitation of displaced persons” has been acquired. The notification under 6 of the Act has been published on 21.5.2004. The Land Acquisition Officer (in short 'LAO') on the basis of average of price paid and examplier sale deeds of seven villages of Shakalda – Command area which is 22 km from present acquired area, by award dated 29.10.2004 assessed the market value at the rate of Rs.26,105/- per hectare, in respect of unirrigated land and Rs.55,918/- per hectare in respect of irrigated land. He also awarded solatium with interest at the rate of 12% per annum. However, the claimants - landowners being dissatisfied with the order/award of the LAO, filed applications under section 18 of the Act, which in terms came to refer to the Court of competent jurisdiction, i.e., the reference Court. He also awarded solatium with interest at the rate of 12% per annum. However, the claimants - landowners being dissatisfied with the order/award of the LAO, filed applications under section 18 of the Act, which in terms came to refer to the Court of competent jurisdiction, i.e., the reference Court. The claimants filed their claim statements and stated that the acquired land of village Dharampuri is agriculture land adjoining to Tahsil Dharampuri of District Dhar. The land is having high potential value. Shakalda - Command area is tribal area and prayed that the compensation be awarded at the rate of Rs.75 lacs per hectare for irrigated land and @ Rs.50 lacs per hectare for unirrigated land. 6. The Government of Madhya Pradesh filed their reply to claim statement and opposed the averment made therein. According to them, the LAO assessed the value rightly and passed the award on 29.10.2004. They opposed the reference application and prayed for dismissal. 7. The landowners along with the claim statement have filed four sale deeds of unirrigated land vide Annexures P-2 to P-5 of village Dharampuri adjoining to the present village (Dharampuri). 8. Exhibit P-2 is sale deed dated 10.6.2003 in respect of 0.014 hectares and the same was executed for a consideration of Rs.1,20,000/-. Exhibit P-3 is sale deed dated 23.4.2002 in respect of 0.030 hectares and the same was executed for a consideration of Rs.72,000/-. Exhibit P-4 is sale deed dated 29.5.2002 in respect of 0.101 hectares and the same was executed for a consideration of Rs.1,00,000/-. Exhibit P-5 is sale deed dated 17.8.2000 in respect of 0.028 hectares and the same was executed for a consideration of Rs.1,83,000/-. 9. Statement of Badamsingh, landowner (appellant in First Appeal No.615/2008) and other material prosecution witnesses were recorded before the reference Court. 10. The State Government failed to examine anyone neither they filed any document before the reference Court nor recorded the statement of any witness like Revenue Officer and Sub-Registrar. 11. It is well settled that where there are several comparable sale deed then the highest value should be preferred unless there are other strong circumstances, which may justify different courses. 10. The State Government failed to examine anyone neither they filed any document before the reference Court nor recorded the statement of any witness like Revenue Officer and Sub-Registrar. 11. It is well settled that where there are several comparable sale deed then the highest value should be preferred unless there are other strong circumstances, which may justify different courses. The reference Court after appreciating the oral and documentary evidence has held that the exampliers filed by the landowners were of small piece of land could not be a ground to discard them specially when exampliers of large piece of land were not available. They could therefore, be used as a safeguard for determining the market value of the land. The reference Court did not consider the sale deed of the higher values but on the contrary considered the average of the sale deeds while deciding the compensation. The reference Court fixed the market value of unirrigated land at the rate of Rs.22,63,364/- and Rs.33,95,046/- per hectares for irrigated land and deducted 48% towards the development etc. 12. First Appeal No.615/2008 (Badamsingh v. State of M.P. and another) and First Appeal No.795/2000 (State of M.P. and another v. Badamsingh) as well as other connected appeals are in respect of village Dharampuri, Tahsil Dharampuri, District Dhar. Both the parties are aggrieved by the order passed by the reference Court and challenged the same order. 13. The appellants State have filed the appeal on the ground that the amount of compensation awarded by the reference Court is on the higher side. The land owners have also challenged the award on the ground that amount of compensation awarded by the reference Court is inadequate. 14. It has been submitted by Shri Vivek Patwa, Advocate that the material considered before the Land Acquisition Officer have not been properly appreciated. During the course of arguments, he very fairly admitted that no one on behalf of the appellant State was examined before the reference Court. 15. 14. It has been submitted by Shri Vivek Patwa, Advocate that the material considered before the Land Acquisition Officer have not been properly appreciated. During the course of arguments, he very fairly admitted that no one on behalf of the appellant State was examined before the reference Court. 15. On the other hand, Shri A.S. Garg, learned senior advocate for the landowners has drawn our attention to the decision of the Division Bench of this Court, passed in First Appeal No.444/2009 (Shakuntala Bai and another v. State of M.P.), decided on 14.5.2015 and submitted that the reference Court erred in law in deducting 48% from the market value on account of development charges and other possible expenditure and looking to the fact that the land was acquired for “rehabilitation of displaced persons”, deduction of around 25% from the market value would be justifiable. In respect of further enhancement of compensation, he submitted that though the amount assessed by the reference Court is on lower side, but in absence of any cogent material he is not pressing that point and will confine his arguments in respect of deduction of 48% towards development charges by the reference Court. 16. In reply, Shri Vivek Patwa, Advocate for the appellant in First Appeal No.795/2008, filed by the State has submitted that enhancement by the reference Court from the amount awarded by the LAO, is on higher side. The enhancement on the basis of small exampliers is contrary to the law settled by the apex Court and prays that the appeals filed by the State be allowed. 17. We have heard the learned counsel for the parties and perused the record of the case. 18. It is true that in respect of Shakalda – Command area, the sale deeds of seven villages for the period from 23.7.2001 to 22.7.2004 was filed before the LAO and as per the aforesaid sale deeds, the average value of total 42.67 hectares comes to Rs.23,86,000/- lacs. The LAO affixed the land revenue @ Rs.42.67 and on the basis of land revenue, assessed the value @ Rs.55,918/- per hectare for irrigated land. Similarly in respect of unirrigated land of 12.487 hectare affixed the land revenue on the basis of 19 sale deed @ Rs.64.67 whereas the value of 21 sale deeds comes to Rs.16,88,200/- and assessed on the basis of land revenue @ Rs.26,105/- per hectare. 19. Similarly in respect of unirrigated land of 12.487 hectare affixed the land revenue on the basis of 19 sale deed @ Rs.64.67 whereas the value of 21 sale deeds comes to Rs.16,88,200/- and assessed on the basis of land revenue @ Rs.26,105/- per hectare. 19. The area of Shakalda – Command is tribal area and is 22 kilometres away from village Dharampuri. This fact has been considered by the learned reference Court in paras 37 and 42 of the impugned judgment. As per Ex.P-2 to P-4, the value of 1 hectare land comes to Rs.20,13,793.103 MP per hectares. Ex.P-2 to P-4 are sale deeds of unirrigated land and, therefore, enhanced value of irrigated land is 1.5 times of aforesaid value and the average value of irrigated land comes to Rs.30,20,689.654 MP per hectare. Sale deeds Ex.P-2 to P-4 are in respect of land situated in village Dharamnpuri whereas the land which has been acquired is of village adjoining to village Dharampuri. Thus, in absence of any material and considering the statements of material prosecution witnesses so also the sale deeds Ex.P-2 to P-4, we are of the view that the learned reference Court has rightly assessed the value of the land @ Rs.30,20,689.654 for irrigated land and Rs.20,13,793.103 for unirrigated land. 20. In the case of Trishala Jain and another v. State of Uttaranchal and another [ (2011)6 SCC 47 ], the apex Court has held that deduction is to be applied on account of carrying out development activities like providing roads or civic amenities such as electricity, water, etc when the land has been acquired for construction of residential, commercial or institutional projects. It shall also be applied where the sale instances (exempliers) relates to similar piece of land and in comparison the acquisition relates to a large tract of land. In addition thereto, deduction can also be applied on account of wastage of land. 21. The apex Court in the Land Acquisition Officer v. Nookala Rajamallu and others [ (2003)12 SCC 334 ], had observed that it is advisable to apply some deduction on account of exemplars of plots of smaller size relied upon by way of evidence by the parties. This is the normal rule stated by the Court but it is not free of exceptions. This is the normal rule stated by the Court but it is not free of exceptions. Similarly, it is neither possible nor appropriate to stricto sensu define a class of cases where the Court would not apply any deduction. This again would be dependent upon the facts and circumstances of a given case. The cases where the acquired land itself is fully developed and has all essential amenities before acquisition, for the purpose for which it is acquired requiring no additional expenditure for its development, falls under the purview of cases of “no deduction”. Furthermore, where the evidence led by the parties is of such instances where the compensation paid is comparable, i.e., exemplar lands have all the features comparable to the proposed acquired land, including that of size, is another category of cases where principle of “no deduction” may be applied. 22. In the case of Charandass v. H.P. Housing and Urban Development, reported in (2010)13 SCC 398 , the Hon'ble apex Court was concerned with the question that whether the deduction of 40% from the market value determined by the High Court towards development charges was justified or not. The apex Court held that where the acquired land falls in the midst of an already developed land with amenities of road, electricity, etc deduction on this account may not be warranted. In the said case, the apex Court permitted the deduction of 30% as development charges from the market value of the land. 23. In the case of Subh Ram v. State of Haryana, reported as (2010)1 SCC 444 , the apex Court has held that the deduction of “development cost” would depend on various factors. The purpose for which the land acquired is one of the relevant factor. The percentage of deduction may, however, vary between 20% to 70% depending on several circumstances. In the case of Subh Ram v. State of Haryana (supra), the apex Court held that it is mandatory to deduct a proper percentage towards development cost. 24. In the case of Mohammad Raofuddin v. Land Acquisition Officer [ (2009)14 SCC 367 ], the apex Court held that Court is duty bound to ensure that the 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. 24. In the case of Mohammad Raofuddin v. Land Acquisition Officer [ (2009)14 SCC 367 ], the apex Court held that Court is duty bound to ensure that the 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. Comparable sale instances of similar land in the neighbourhood at the time of acquisition under the Act is best guide to arrive at fair estimate of compensation. However, lands sought to be compared must be similar in nature of potentiality. 25. In the case of Krishi Utpadan Mandi Samiti v. Vipin Kumar, reported as AIR 2004 SC 2895 , the apex Court has held that the value fixed in basic valuation register for stamp duty purpose could not be the basis. The sale deed of comparable land should be main basis. 26. In the case of Ahsanul Hoda v. State of Bihar, reported as (2013)14 SCC 59 , the apex Court held that to make appropriate deduction towards development cost while determining the value of large extent of agriculture land with reference to value of small residential plot in the vicinity which may not be less than 20% to 25%. The apex Court held that the Courts can rely on sale deeds of smaller residential plots while determining the market value of larger agriculture land. 27. In the case of Haryana State Agriculture Market Board v. Krishnan Kumar, reported as (2011)15 SCC 297 , the apex Court held that normally it is not safe to proceed on the basis of circle rates or Collector's rates, as they are broad assessments which may or may not be based on proper scientific survey and verification. It is well settled that the market value has to be determined with reference to comparable lands and with reference to comparable sales, if available. The commercial plots are not comparable to the acquired lands. Insofar as small residential plots abutting the main road leading to G.T. Road they cannot obviously be applied directly without any deductions to arrive at the value of undeveloped agricultural land even if the acquired lands may be situated immediately near the town outskirts. The commercial plots are not comparable to the acquired lands. Insofar as small residential plots abutting the main road leading to G.T. Road they cannot obviously be applied directly without any deductions to arrive at the value of undeveloped agricultural land even if the acquired lands may be situated immediately near the town outskirts. Further deduction will have to be made towards the cost of development, that is, the cost of levelling the land, cost of laying roads and drains, and the cost of drawing electrical, water and sewer lines. 28. It is settled law that while fixing the market value of the acquired land, the Land Acquisition Collector is required to keep in mind the following factors: (i) Existing geographical situation of the land. (ii) Existing use of the land. (iii) Already available advantages, like proximity to National or State Highway or road and/or developed area. (iv) Market value of other land situated in the same locality/village/area or adjacent or very near the acquired land. 29. One of the principles for determination of the amount of compensation for acquisition of land would be the willingness of an informed buyer to offer the price therefor. It is beyond any cavil that the price of the land which a willing and informed buyer would offer would be different in the cases where the owner is in possession and enjoyment of the property and in the cases where he is not. 30. For ascertaining the market value of the land, the potentiality of the acquired land should also be taken into consideration. Potentiality means capacity or possibility for changing or developing into state of actuality. It is well settled that market value of a property has to be determined having due regard to its existing condition with all its existing advantages and its potential possibility when led out in its most advantageous manner. The question whether a land has potential value or not, is primarily one of fact depending upon its condition, situation, uses to which it is put or is reasonably capable of being put and proximity to residential, commercial or industrial areas or institution. The existing amenities like water, electricity, possibility of their further extension, whether near about town is developing or has prospect of development have to be taken into consideration. 31. The existing amenities like water, electricity, possibility of their further extension, whether near about town is developing or has prospect of development have to be taken into consideration. 31. In the case in hand, the acquired land is agricultural land which has acquired for rehabilitation of villages which came under submergence due to increase of height of Sardar Sarovar Dam of Tahsil Dharampuri then while determining the acquired market value appropriate deduction are also required to be made. 32. In the case of Patel Jathabhai Punajbhai and North Gujarat University and another [ (2015)3 SCC 650 ], looking to the peculiar facts and circumstances, the apex Court held that it would have been appropriate to deduct approximately 30% of the amount for development, etc. Further deduction for determining the valuation of the land was not called for. 33. The law on the question of deduction towards the development has been recently settled by the Hon'ble apex Court in the case of Major General Kapil Mehra v. Union of India and another, reported in (2015)2 SCC 262 . 34. The aforesaid decisions of the Hon'ble Supreme Court is in respect of developed area of city. In respect of the land of Vasant Vihar and Vasant Kunj area, the Hon'ble Supreme Court directed to develop approximately 60% to 65% of the amount for development etc. 35. In the instant case, having regard to the extent of land acquired and the development in and around for “rehabilitation of displaced persons” of villages which comes under the submergence due to increase of height of Sardar Sarovar Dam of Tahsil- Dharmapuri in District – Dhar, in our view it is appropriate to make 20% deduction towards utilisation of the land area in the layout for roads, drains, civic amenities etc. So far as the expenditure for development of the large extent of land into a developed area by construction of roads, drainage, civic amenities etc., it is appropriate to make further deduction of 15% towards development charges. Two components taken together, the total deduction to be made would be 35%. Thus, it is a case of less deduction. In our opinion a deduction of 35% from the market value on account of development charges and other possible expenditure would be justifiable and called for in the facts and circumstances of the present case. Two components taken together, the total deduction to be made would be 35%. Thus, it is a case of less deduction. In our opinion a deduction of 35% from the market value on account of development charges and other possible expenditure would be justifiable and called for in the facts and circumstances of the present case. After deducting @ 35%, the market value comes to Rs.19,63,448.2751/- (Rs.30,20,689.654 – Rs.10,57,241.3789 = Rs.19,63,448.2751) per hectare for irrigated land and for unirrigated land, the market value comes to Rs.13,08,965.51695 (Rs.20,13,793.103 – Rs.7,04,827.58605 = Rs.13,08,965.51695) per hectare. 36. The Registry is directed to examine each of the appeals and submit a verification report therein that advalorem Court fee has been paid by the land owners in First Appeals No.614/2008, 615/2008, 616/2008, 617/2008, 618/2008, 619/2008, 620/2008, 621/2008, 622/2008, 623/2008, 624/2008, 625/2008, 626/2008, 627/2008, 628/2008, 629/2008, 630/2008, 631/2008, 632/2008, 633/2008, 634/2008, 635/2008, 636/2008, 637/2008, 638/2008 and 656/2008. 37. In case, if no ad valorem court fee has been paid by the land owners or there is a deficit court-fee then their appeals shall stand dismissed in proportionate to the amount of deficit court-fee and they are entitled for compensation of reduced valuation of their appeal. Verification report be submitted in all the first appeals filed by the land owners separately so that enhanced amount be paid accordingly. The Registry will issue necessary certificate to them and then only they will be entitled for the enhanced amount of compensation. 38. In the result, all the appeals filed by the landowners are allowed in part with costs. The appeals filed by the State against the order passed by the reference Court is dismissed. 39. Original judgment be retained in the record of First Appeal No.615/2008 and a copy thereof be placed in the record of First Appeal No.795/2008 as well as all other connected first appeals.