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Karnataka High Court · body

2019 DIGILAW 978 (KAR)

Vijayalaxmi v. Special Land Acquisition Officer, Karnataka Industrial Areas Development Board, Dharwad

2019-04-27

P.B.BAJANTHRI, P.G.M.PATIL

body2019
JUDGMENT : P. B. Bajanthri, J. The present appeal is filed under Section 54(1) of the Land Acquisition Act, 1894 (hereinafter referred to as the "Act" for brevity). The appellant has sought for modification of the judgment and award dated 25.06.2007 passed by the Additional Civil Judge (Sr.Dvn.), Raichur in LAC No. 42/2006 for enhancement of compensation. 2. Brief facts of the case are that on 02.04.1998, 4(1) notification was issued in respect of acquisition of appellant's land in Sy.No.114(2) to an extent of 4 acres 21 guntas of Chikkasugur Village, Raichur Taluk and District. The award was passed on 15.11.2005 while assessing the amount of compensation at Rs.35,000/- per acre. Dissatisfied with the amount awarded under protest, the appellant has sought for a reference under Section 18(1)(a) of the Act. Reference Court enhanced the compensation amount from Rs.35,000/- to that of Rs.1,20,000/- per acre on 25.06.2007. Still being dissatisfied with the award of the Reference Court dated 25.06.2007, the appellant has presented this appeal. 3. Learned counsel for the appellant advanced three fold arguments: Firstly, delay in passing the award i.e., from April 1998 to November 2005 for no fault of the appellant. Determination of compensation with reference to 4(1) notification dated 02.04.1998 would be arbitrary with reference to date of award being 15.11.2005; Secondly, percentage of deduction by the reference Court i.e., 20% + 65% overall deduction is 85%, which would be highly arbitrary and contrary to various judicial pronouncements; Thirdly, reference court has failed to consider that adjacent Sy.No.117 has fetched higher amount and the same has not been appreciated. 4. Learned counsel for the appellant further submitted that additional documents have been produced in order to appreciate the assessment of compensation by the Land Acquisition Officer as well as the Reference Court as highly arbitrary and illegal. Additional documents are relating to sale deed dated 15.10.2007 executed by one Earappa s/o late Mallanna in favour of Sri. Nagabhushan Boreddy s/o Eashwarappa in respect of plot No. 259 measuring 40''x 30'' situated in the approved layout of Sy.Nos.173/2, 174, 175/2 and 176 of Chicksugur Village, Raichur Taluk and District. Certified copy of the Village map of Chicksugur Village is also produced. 5. The appellant in support of her contention relied on the following decisions of the Hon'ble Supreme Court: (1) Subh Ram & Ors. v. Haryana State & Anr. Certified copy of the Village map of Chicksugur Village is also produced. 5. The appellant in support of her contention relied on the following decisions of the Hon'ble Supreme Court: (1) Subh Ram & Ors. v. Haryana State & Anr. (CA No. 5844 of 2004 disposed of on 20.10.2009. Paras 12 and 14 are extracted hereunder:- 12. Section 24 of Land Acquisition Act prohibits the court from taking into consideration any increase to the value of the land acquired, likely to accrue from the use to which it will be put when acquired. A three-Judges Bench of this Court in Tarlochan Singh v. State of Punjab, (1995) 2 SCC 424 held : "Section 24 of the Land Acquisition Act expressly prohibits and puts an embargo on the Court in taking the factors mentioned in section 24 as relevant in determining the market value. Under these circumstances, the future development and potential prospective use of the acquisition etc., are not relevant circumstances. Even the purpose of acquisition is not relevant." (Emphasis supplied) The above position was reiterated in Raj Kumar v. State of Punjab, (1995) 3 SCC 121 . This Court led : ".....The purpose of acquisition i.e. to establish market and on its account the lands are possessing potential value, is irrelevant by operation of section 24 of the Act." (12.1.) Administrator General of West Bengal v. Collector, Varanasi, (1988) 2 SCC 150 contains a precise statement as to the concept of deducting development cost. This Court stated: "It is trite proposition that prices fetched for small plots cannot form safe bases for valuation of large tracts of land as the two are not comparable properties. ..... The principle that evidence of market value of sales of small, developed plots is not a safe guide in valuing large extents of land has to be understood in its proper perspective. The principle requires that prices fetched for small developed plots cannot directly be adopted in valuing large extents. ..... The principle that evidence of market value of sales of small, developed plots is not a safe guide in valuing large extents of land has to be understood in its proper perspective. The principle requires that prices fetched for small developed plots cannot directly be adopted in valuing large extents. However, if it is shown that the large extent to be valued ..............is ripe for use for building purposes; that building lots that could be laid out on the land would be good selling propositions and that valuation on the basis of the method of hypothetical lay out could with justification be adopted, then in valuing such small, laid out sites the valuation indicated by sale of comparable small sites in the area at or about the time of the notification would be relevant. In such a case, necessary deductions for the extent of land required for the formation of roads and other civil amenities; expenses of development of the sites by laying out roads, drains, sewers, water and electricity lines, and the interest on the outlays for the period of deferment of the realisation of the price; the profits on the venture etc. are to be made. In Sahib Singh Kalha v. Amritsar Improvement Trust, (1982) 1 SCC 419 , this Court indicated that deductions for land required for roads and other developmental expenses can, together, come up to as much as 53 per cent. But the prices fetched for small plots cannot directly be applied in the case of large areas, for the reasons that the former reflects the "retail" price of land and the latter the "wholesale" price. (Emphasis supplied) This Court referred to and relied upon several earlier decisions including three Judge Bench decisions in Mirza Nausherwan Khan v. The Collector (Land) Acquisition, Hyderabad, (1975) 1 SCC 238 and Padma Uppal v. State of Punjab, (1977) 1 SCC 330 . (12.2.) In Chimanlal Hargovinddas v. Special Land Acquisition Officer, (1988) 3 SCC 751 , this Court held : "..... a large block of land will have to be developed by preparing a lay out, carving out roads, leaving open space, plotting out smaller plots, waiting for purchasers (meanwhile the invested money will be blocked up) and the hazards of an entrepreneur. a large block of land will have to be developed by preparing a lay out, carving out roads, leaving open space, plotting out smaller plots, waiting for purchasers (meanwhile the invested money will be blocked up) and the hazards of an entrepreneur. The factor can be discounted by making a deduction by way of an allowance at an appropriate rate ranging approx, between 20% to 50% to account for land required to be set apart for carving out lands and plotting out small plots. The discounting will to some extent also depend on whether it is a rural area or urban area, whether building activity is picking up, and whether waiting period during which the capital of the entrepreneur would be locked up, will be longer or shorter and the attendant hazards". It should be noted that deduction of 20% to 50% referred to therein is only in regard to the land to be earmarked for roads, community areas etc. and does not refer to the further deduction towards the expenses of development. (12.3.) In K. S. Shivadevamma v. Asstt. Commissioner & Land Acquisition Officer, (1996) 2 SCC 62 , this Court held : "It is then contended that 54% is not automatic but depends upon the nature of the development and the stage of development. 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. This 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. 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 the 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." (12.4.) In Atma Singh v. State of Haryana, (2008) 2 SCC 568 this Court reiterated the settled principles regarding deductions thus: "The reasons given for the principle that price fetched for small plots cannot form safe basis for valuation of large tracks of land, according to cases referred to above, are that substantial area is used for development of sites like laying out roads, drains, sewers, water and electricity lines and other civic amenities. Expenses are so incurred in providing these basic amenities. That apart it takes considerable period in carving out the roads making sewers and drains and waiting for the purchasers. Meanwhile the invested money is blocked up and the return on the investment flows after a considerable period of time. In order to make up for the area of land which is used in providing civic amenities and the waiting period during which the capital of the entrepreneur gets locked up a deduction from 20% onward, depending upon the facts of each case, is made." 14. Learned counsel for the appellants lastly contended that having regard to two judgments of Punjab & Haryana High Court relating to acquisition in the same village in Azad Singh v. State of Haryana & Anr. (RFA No. 2 of 1991 decided on 30.9.1997) and Kabul Singh & Ors. v. Haryana State & Anr. (RFA No. 556 of 1994 decided on 13.5.1999) the compensation to be awarded should not be less than Rs.68/- (plus 25%) per sq.yd. In both cases Rs.68/- per sq. yard was awarded as compensation for acquisitions of land in village Jharsa in the years 1982 and 1983. v. Haryana State & Anr. (RFA No. 556 of 1994 decided on 13.5.1999) the compensation to be awarded should not be less than Rs.68/- (plus 25%) per sq.yd. In both cases Rs.68/- per sq. yard was awarded as compensation for acquisitions of land in village Jharsa in the years 1982 and 1983. It was also submitted that as the subject acquisition was two years later in 1984, at least 25% should be added to Rs.68/- per sq.yd. But the map of the area produced by the appellants show that the lands which are the subject matter of those two decisions are more advantageously situated as they adjoin National Highway No. 8 and are next to well developed areas (like Hidayatpur Cantonment, etc.) whereas the acquired lands are farther away from National Highway No. 8 and any developed area. Hence, the said decisions, though relating to Jharsa village, are not of any assistance. (2) Atma Singh (Died) through LRs. & v. State of Haryana & Anr. in CA Nos. 3148-3157 of 2000 disposed of on 7 December, 2007 at para 13 has held which reads as under: 13. The reasons given for the principle that price fetched for small plots cannot form safe basis for valuation of large tracks of land, according to cases referred to above, are that substantial area is used for development of sites like laying out roads, drains, sewers, water and electricity lines and other civil amenities. Expenses are also incurred in providing these basis amenities. That apart it takes considerable period in carving out the roads making sewers and drains and waiting for the purchasers. Meanwhile the invested money is blocked up and the return on the investment flows after a considerable period of time. In order to make up for the area of land which is used in providing civil amenities and the waiting period during which the capital of the entrepreneur gets locked up a deduction from 20% onward, depending upon the facts of each case, is made. 6. Learned counsel for the respondent resisted the appellant's contention and supported the order of the reference Court. It was submitted that on the issue relating to delay in passing the award with reference to 4(1) notification dated 02.04.1998 read with award dated 15.11.2005, the appellant has been appropriately compensated while awarding interest as is evident from the order of the reference Court at para.22. It was submitted that on the issue relating to delay in passing the award with reference to 4(1) notification dated 02.04.1998 read with award dated 15.11.2005, the appellant has been appropriately compensated while awarding interest as is evident from the order of the reference Court at para.22. The object of payment of interest is to overcome the delay if any, from the date of 4(1) notification and date of award. It was further contended that there is a discussion on percentage of deduction by the reference Court at para.19 of its order, which is a reasoned one. It was further contended that Supreme Court in the case of Chandrashekar (Dead) by L.Rs. and others v. Land Acquisition Officer and another, (2012) 1 SCC 390 has held at para 39 that deduction towards development of the acquired property to the extent of 75% is permissible. Para.39 is extracted hereunder for ready reference: 39. Our conclusions in respect of the quantum of permissible deductions have been recorded in paras 23 to 27 hereinabove. While determining the validity of individual deductions, it is also imperative to examine whether or not the total deductions put together fall within legal parameters. We have upheld 55% deduction accorded by the High Court towards "development". We have also individually upheld deduction of 10% on account of "de-escalation", as also, the deduction of 5% on account of "waiting period". Cumulatively these deductions would amount to 70% (55 + 10 + 5=70). The outer benchmark for deductions laid down by this Court in Lal Chand case and in A.P. Housing Board case in 75%. Cumulatively also the deductions allowed by the High Court fall well within the parameters laid down by this Court. We therefore find no infirmity in the quantum of accumulated deductions applied by the High Court during the course of making an assessment of the market value of the acquired land. Therefore, there is no infirmity in respect of deduction by the reference Court at 20% + 65%. 7. We therefore find no infirmity in the quantum of accumulated deductions applied by the High Court during the course of making an assessment of the market value of the acquired land. Therefore, there is no infirmity in respect of deduction by the reference Court at 20% + 65%. 7. For the purpose of enhancement of compensation, appellant has relied on additional documents like sale deed of the year 2007 read with village map, which do not assist the appellant to seek for enhancement of compensation as is evident from the record that acquisition is dated 02.04.1998 and survey number in respect of sale deed has no nexus with the appellant's survey number so as to establish that it was adjacent and as regards the potentiality of the non-agricultural land and other factors. 8. He further relied on decision of the Apex Court in the case of Vithal Rao & Anr. Etc- v. The Special Land Acquisition Officer,2017 5 SCC 444 at para.27 laid down factors for award of compensation which reads as under: 27) In Para 4 of the judgment, this Court laid down as many as 17 principles, which are reproduced below for perusal: "(1) to (4) .................. The market value of land under acquisition has to be determined as on the crucial date of publication of the notification under Section 4 of the Land Acquisition Act (dates of notifications under Sections 6 and 9 are irrelevant). The determination has to be made standing on the date line of valuation (date of publication of notification under Section (4) as if the valuer is a hypothetical purchaser willing to purchase land from the open market and is prepared to pay a reasonable price as on that day. It has also to be assumed that the vendor is willing to sell the land at a reasonable price. (7) In doing so by the instances method, the court has to correlate the market value reflected in the most comparable instance which provides the index of market value. (8) Only genuine instances have to be taken into account. (Sometimes instances are rigged up in anticipation of acquisition of land.) (9) Even post-notification instances can be taken into account (1) if they are very proximate, (2) genuine and (3) the acquisition itself has not motivated the purchaser to pay a higher price on account of the resultant improvement in development prospects. (Sometimes instances are rigged up in anticipation of acquisition of land.) (9) Even post-notification instances can be taken into account (1) if they are very proximate, (2) genuine and (3) the acquisition itself has not motivated the purchaser to pay a higher price on account of the resultant improvement in development prospects. (10) The most comparable instances out of the genuine instances have to be identified on the following considerations: (i) proximity from time angle, (ii) proximity from situation angle. (11) Having identified the instances which provide the index of market value the price reflected therein may be taken as the norm and the market value of the land under acquisition may be deduced by making suitable adjustments for the plus and minus factors vis-a -vis land under acquisition by placing the two in juxta position. (12) A balance sheet of plus and minus factors may be drawn for this purpose and the relevant factors may be evaluated in terms of price variation as a prudent purchaser would do. (13) The market value of the land under acquisition has thereafter to be deduced by loading the price reflected in the instance taken as norm for plus factors and unloading it for minus factors. (14) The exercise indicated in clauses (11) to (13) has to be undertaken in a common sense manner as a prudent man of the world of business would do. We may illustrate some such illustrative (not exhaustive) factors: PLUS FACTORS MINUS FACTORS 1. smallness of size 1. largeness of area 2. proximity to a road 2. situation in the interior at a distance from the road 3. frontage on a road 3. narrow strip of land with very small frontage compared to depth 4. nearness to deve 4. lower level requiring the depressed portion to be filled up loped area 5. regular shape 5. remoteness from developed locality 6. level vis-a-vis land under acquisition 6.Some disadvantageous which would special factor deter a purchaser 7. special value for an owner of an adjoining property to whom it may have some very special advantage (15) The evaluation of these factors of course depends on the facts of each case. There cannot be any hard and fast or rigid rule. Common sense is the best and most reliable guide. For instance, take the factor regarding the size. A building plot of land say 500 to 1000 sq. yds. There cannot be any hard and fast or rigid rule. Common sense is the best and most reliable guide. For instance, take the factor regarding the size. A building plot of land say 500 to 1000 sq. yds. cannot be compared with a large tract or block of land of say 10,000 sq. yds. or more. Firstly while a smaller plot is within the reach of many, a large block of land will have to be developed by preparing a lay out, carving out roads, leaving open space, plotting out smaller plots, waiting for purchasers (meanwhile the invested money will be blocked up) and the hazards of an entrepreneur. The factor can be discounted by making a deduction by way of an allowance at an appropriate rate ranging approximately between 20 per cent to 50 per cent. to account for land required to be set apart for carving out lands and plotting out small plots. The discounting will to some extent also depend on whether it is a rural area or urban area, whether building activity is picking up, and whether waiting period during which the capital of the entrepreneur would be locked up, will be longer or shorter and the attendant hazards. (16) Every case must be dealt with on its own fact pattern bearing in mind all these factors as a prudent purchaser of land in which position the judge must place himself. (17) These are general guidelines to be applied with understanding informed with common sense." 9. Having regard to the factors to be taken into consideration while award of compensation under the Act by the reference Court, there is no infirmity so as to interfere with the award of the reference Court. That apart relying on the sale deed, village survey and Sy.No.117 do not assist appellant's case on two counts: (i) date of acquisition is 02.04.1998 whereas sale deed is dated 15.10.2007 and; (ii) by perusal of the village map it is evident that the lands acquired by the Land Acquisition officer under Sy.No.114(2) is farther away. Merely, both the survey numbers fall under the common village, appellant is not entitled for enhancement of compensation on par with another survey number which has fetched more compensation or the owners of the respective lands have gained more money in selling their property. Merely, both the survey numbers fall under the common village, appellant is not entitled for enhancement of compensation on par with another survey number which has fetched more compensation or the owners of the respective lands have gained more money in selling their property. In other words, common village criteria has been dealt by the Hon'ble Supreme Court in the case of Subh Ram's case cited supra. Thus, the appellant has not made out any case to interfere with the award of the reference Court. 10. Heard the learned counsel for the parties. 11. Learned counsel for the appellant advanced arguments which are three fold viz: (i) There is huge delay between 4(1) notification dated 02.04.1998 and award dated 15.11.2005. On this count it was submitted that as on 15.11.2005 whatever market value is determined, has to be extended to the appellant also. 12. Time and again, Courts have held that award of compensation would be with reference to the date of 4(1) notification. The object of award of compensation along with interest for a particular period and extending higher interest for further period read with solatium @ 30% and all statutory benefits would cover the delay issue. Therefore, the appellant has not made out a case so as to reassign the compensation as on date of award dated 15.11.2005. 13. Reference Court deducted 20% of the amount with reference to Sy.No.117 which is clear by its order at para.19. Sy.No.117 is stated to have fetched a sum of Rs.4,28,630/-. If 20% is deducted, it would be Rs.3,42,904/-. Such deduction is with reference to date of award or sale consideration. At para.20, 65% of the amount has been deducted towards developmental organs. Consequently, it has arrived at a conclusion that available area would be 35%. If 65% of the amount is deducted towards developmental organs out of a sum of Rs.3,42,904/-, it would be around Rs.2,28,887/-. If the same is deducted in the total amount, Rs.1,20,016/- is the market value of the acquired land. Accordingly, it has been rounded of to Rs.1,20,000/-. The contention of the appellant that reference court has deducted more than 65% + 20% which would be 85% and it is arbitrary and illegal, cannot be appreciated for the reasons that reference Court's deduction of 20% is with reference to Sy.No.117 which is not adjacent to the road or abutting the village. The contention of the appellant that reference court has deducted more than 65% + 20% which would be 85% and it is arbitrary and illegal, cannot be appreciated for the reasons that reference Court's deduction of 20% is with reference to Sy.No.117 which is not adjacent to the road or abutting the village. Therefore, value of Sy.No.117 has been taken into consideration while deducting 20%. Therefore, overall 85% deduction is not forthcoming so as to appreciate the appellant's contention. Thus, appellant has not made out a case in respect of her contention as regards percentage of deduction. Ultimately, deduction is only 65% and not 85% as contended. 14. Appellant's endeavour that her acquired property bearing Sy.No.114/2 measuring 4 acres 21 guntas is adjacent to Sy.No.117 read with Sy.Nos.173/2, 174, 175/2 and 176 read with plot No. 259 measuring 40 feet x 30 feet at Chicksugur Village, Raichur Taluk and District, map of Chicksugur Village do not assist for seeking enhancement of compensation having regard to the distance between lands in Sy. Nos.114/2, 117, 173/2, 174, 175/2 and 176 of Chicksugur Village, Raichur Taluk and District. Hon'ble Supreme Court in the case of Subh Ram cited supra has held at para-14 as extracted supra. 15. Hon'ble Supreme Court in the case of Vittal Rao's case cited supra laid down certain factors which are required to be taken into consideration for the purpose of award of compensation. The appellant has not appraised this Court as to which one of the factor have not been taken into consideration for the purpose of "plus and minus" factors. What has been urged in the present appeal is appellant's land is stated to be adjacent lands like Sy.No.117, plot No. 259 part of Sy.No.173/2 in the approved layout read with village map. The aforesaid contention cannot be appreciated as aforesaid survey number may be part of village. The properties acquired or sold in a particular village cannot be the criteria for award of compensation for the reason that time and again Courts have held that other potentiality of the lands are to be considered like non- agricultural land, nearer to the highway, to public places like Railway Station etc. or located in the heart of the city. The properties acquired or sold in a particular village cannot be the criteria for award of compensation for the reason that time and again Courts have held that other potentiality of the lands are to be considered like non- agricultural land, nearer to the highway, to public places like Railway Station etc. or located in the heart of the city. On a perusal of the village map, it is evident that the cited survey numbers are nearby highway and railway track whereas the appellant's land acquired in Sy.No.114/2 is far away from the highway as well as the railway track, it is adjacent to some narrow road as is evident from village map. Hence, the contention of the appellant that compensation needs to be enhanced with reference to other survey numbers cited supra is not appreciable. Accordingly, Miscellaneous First Appeal stands dismissed.