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2017 DIGILAW 507 (ALL)

State of U. P. Through Collector v. Sudha Rani

2017-02-10

ASHWANI KUMAR MISHRA

body2017
JUDGMENT Ashwani Kumar Mishra,J. Land measuring 30.849 acre situated in 13 different villages, got acquired for the purpose of constructing irrigation canal by the State of U.P. The land with which we are concerned in the present case situated in village Mahpur Mohammad Ali, and measured 5.247 acre. Notification under Section 4 (1) of the Land Acquisition Act was issued on 7th August 1995, which got published in the gazette on 11.11.1995. The declaration under Section 6 was issued on 15.5.1996, and was published on 3rd August, 1996. Possession was taken on 23rd March 1998. A composite award in respect of land acquired in 13 villages was made by the collector on 23rd October, 1999. The Collector for the purpose of determining compensation under Section 11, called for details of sale transactions executed over a period of last three years in the respective village. It is recorded in the award of the Collector, and not challenged at any level, that no sale transaction within the last three years was available in village Mahpur Mohammad Ali. The Collector in such circumstances relied upon a sale transactions dated 23rd April, 1994 of village Jamalpur Khadar, wherein also land was acquired for the same Scheme. An area of 1 Bigha 2 Biswa 17 Biswansi land was transferred for a consideration of Rs. 24,000/- vide this deed. Appropriate adjustment, on account of quality of land as per revenue records, was made. For different quality of land acquired in village concerned, rate of land in terms of acre varied from 1,30,800 to 20,571.43/- per acre. 2. The sale transaction dated 23.4.1994 conveyed market rate of land in village Zamalpur Khadar as Rs. 1,22,571.44/- per acre. The claimants were not satisfied with the determination of compensation by the Collector and consequently, preferred reference under Section 18 of the Land Acquisition Act. For the purposes of seeking enhancement of compensation, the claimants relied upon sale transaction of land situated in village Mahpur Mohammad Ali dated 16.8.1990, whereby a small piece of land measuring 1/3 share of 3 biswa 7 biswansi was transferred for Rs. 25,500/-. The claimants alleged that they were entitled to be awarded compensation, by increasing the rate of land for the period 1990 to 1995. 25,500/-. The claimants alleged that they were entitled to be awarded compensation, by increasing the rate of land for the period 1990 to 1995. The reference Court examined the issue and it came to the conclusion that the sale transaction dated 16.8.1990 could not be discarded since it related to the same khata from which land had been acquired, herein. Reliance was placed upon the judgement of Apex Court reported in AIR 1992 SC 666 , wherein the apex court has been pleased to observe that bonafide transaction relating to transfer of land from the same plot which is subjected to acquisition, would constitute the best basis for determining compensation. The reference Court allowed increase at the rate of Rs. 12 % per anum upon such sale transaction for the lapse of 5 years period, and therefore allowed 1/3 deduction due to smallness of exemplar to determine the market rate of compensation at the rate of Rs. 2,70,000/- per acre. 3. The contention advanced on behalf of the State before the reference Court that the transaction dated 16.8.1990 was a desperate transaction of sale since the land was purchased to secure ingress and egress by a tenure holder, was not accepted. The reference Court vide its award dated 18.12.2010, has enhanced compensation at the rate of Rs. 2,70,000/- per acre, along with other statutory benefits and Land Acquisition Reference No. 82 of 2000 and 83 of 2000 too were accordingly disposed off. 4. Aggrieved by such determination of the reference Court, the State of U.P has preferred the present appeal under Section 54 of the Land Acquisition Act. 5. The ground of challenge is essentially the same that a sale transaction which was more than 5 years old, could not have been relied upon for enhancing compensation. Learned Standing Counsel, moreover, submits that sale transaction was otherwise not reliable and did not reflect the correct market rate, as the sale transaction was a desperate sale to secure right of ingress or egress for the tenure holder. 6. Learned Standing Counsel, moreover, submits that sale transaction was otherwise not reliable and did not reflect the correct market rate, as the sale transaction was a desperate sale to secure right of ingress or egress for the tenure holder. 6. Sri Prateek Kumar, learned counsel for the respondent, who has appeared for the tenure holder, on the other hand, contends that enhancement has rightly been made by the reference Court, inasmuch as the sale transaction rightly reflected the rate of land in village in the year 1990, and after appropriate adjustment for increase in price of land over a period of 5 years, the reference Court had applied correct principles of law to determine market rate of compensation. 7. It is in the backdrop of such rival contentions that the matter falls for consideration of this Court under Section 54 of the Land Acquisition Act. It is not in dispute between the parties that land acquired in the present case situates at village Mahpur Mohammad Ali, and over a period of last three years, prior to acquisition of land, no sale transaction was reported from the village concerned. 8. It is further not in issue that Collector for the purpose of determining compensation has relied upon the sale transaction pertaining to a different village Zamalpur Khadar. From the evidence appearing on record in the form of oral statement of the witnesses, it appears that the distance between the land situated in village Zamalpur Khadar and Mahpur Mohammad Ali was about 4 kilometers. The claimants while making reference under Section 18 of the Land Acquisition Act were in position of a plaintiff, who had to prove that the rate of compensation offered by the Collector was insufficient and that on the basis of evidence to be adduced by them, the claimants were entitled to higher compensation. Law is settled by the Apex Court in AIR 1995 SC 840 (Special Land Acquisition Officer & Anr. etc. vs. Sri Siddappa Omanna Tumari & Ors.) in this regard. 9. This Court finds that the claimants have alleged that the land situated in Mahpur Mohammad Ali was a better quality land and that the land situated in Zamalpur Khadar was comparatively inferior in nature. etc. vs. Sri Siddappa Omanna Tumari & Ors.) in this regard. 9. This Court finds that the claimants have alleged that the land situated in Mahpur Mohammad Ali was a better quality land and that the land situated in Zamalpur Khadar was comparatively inferior in nature. In order to demonstrate so, the statement of Kuldeep Kumar has been brought on record who has stated that he has seen the land of Zamalpur Khadar, which is a low lying land and situated at a distance of 4 kilomeres from the land which is subject matter of acquisition herein i.e. village Mahpur Mohammad Ali. The circle rate of land in village Mahpur Mohammad Ali is also higher. It is otherwise settled that unless proved otherwise, the potentiality of land acquired in each revenue village would be distinct from the potentiality of land situated in other villages, See: Kanwar Singh and Others Vs. Union of India, 1998 (8) SCC 136 . 10. Viewed in the context, I find that the claimants have discharged the onus of establishing that compensation offered to him by the Collector under Section 11, was inadequate. The statement that the land of village Mahpur Mohammad Ali had higher potentiality and land therein was of superior quality, has not been effectively denied on behalf of the State also. 11. Turning to the core issue as to what would be the appropriate compensation it has to be seen that no other sale exemplar pertaining to the village in question was available on record. In such circumstances, if the reference Court has taken into consideration the sale exemplar which was nearly five years prior to acquisition of land, no exception can be taken to it. Ordinarily compensation is to be determined on the basis of sale exemplar which is most proximate in terms of time and situation, but there is no absolute bar in placing reliance upon such transaction if there is no other material available to determine the market rate. 12. The Court however was required to examine the transaction itself in order to determine as to whether it duly reflected the current market rate of land in the area. In this regard the statement of Kuldeep Singh, who is the husband of claimant Sudha Rani, assumes significance. 12. The Court however was required to examine the transaction itself in order to determine as to whether it duly reflected the current market rate of land in the area. In this regard the statement of Kuldeep Singh, who is the husband of claimant Sudha Rani, assumes significance. He has clearly admitted in his cross examination that the land covered by sale deed dated 16.8.1990, was purchased for being used as passage to facilitate ingress and egress of the tenure holder. He has also admitted that except for such land, the tenure holder was not able to utilize his land, and he was compelled to purchase the land in the peculiar circumstances. This statement clearly suggest that the transaction had to be resorted to in a desperate situation and may not have truly reflected the market value of land existing in the year 1990. It is a matter of common knowledge that such transactions would be on higher side due to superior bargaining strength of the vendor. Appropriate deduction would have to be worked out for the purpose. 13. Law permits that in an extreme case, where there is no other sale exemplar of the village available, the Court would have to take into account the positives and negatives attached to the only transaction available, though not exactly comparable, to work out the correct market value. For such purposes, some element of guess work would be permissible. The reference Court, therefore, ought to have fixed the market rate by allowing certain percentage on the negative side. However, as a period of five years had in fact intervened from the date of execution of sale deed in 1990 till the time of acquisition in the year 1995, an element of upward adjustment ought to have been allowed too. If both the positive and negative aspects are accounted for, the rate of land in the village in 1995 can be held to be such as was reflected in the sale transaction dated 16.6.1990, but no further increase at the rate of Rs. 12% was warranted as has been done by reference Court herein. Appropriate deduction was liable to be allowed on account of largeness of land acquired, viz-a-viz, the sale exemplar which was of extremely small area. The rate of land as per the sale transaction dated 16.8.1990 in the village, works to approximately Rs. 12% was warranted as has been done by reference Court herein. Appropriate deduction was liable to be allowed on account of largeness of land acquired, viz-a-viz, the sale exemplar which was of extremely small area. The rate of land as per the sale transaction dated 16.8.1990 in the village, works to approximately Rs. 2,53,731.34/-, according to the calculation worked out by the reference Court. In case deduction of about 20% is allowed due to largeness of land, the rate of compensation for the land would work out to Rs. 2,00,000/- per acre approximately. In my opinion that would be the appropriate market rate of land on the date of its acquisition. 14. In view of the discussions aforesaid, the appeal of the State is allowed in part, and the market rate of land in the village concerned is held to be Rs. 2,00,000/- per acre, and the claimants are held entitled to compensation at such rate. The claimant shall also be entitled to other statutory benefits including the solatium, additional compensation and interest as provided in the Act. 15. The appeal accordingly, stands allowed in part, and the amount already paid shall be adjusted.